Critical Thinking and Legal Culture

We often lack clear procedures for assessing statements and arguments advanced in everyday conversations, political campaigns, advertisements, and the other multifarious uses to which ordinary language can be put. Critical thinking is a method for evaluating arguments couched in ordinary, non-formal language. Legal education should foster this argumentative skill as an ability to assess the open-end variety of arguments that may arise in legal disputes. I will argue that the ability of critical thinking helps lawyers to thrive even in legal cultures that are hostile to critical thinking. There is, therefore, a happy harmony between professional and moral reasons to teach critical thinking at law schools: it promotes epistemic as well as instrumental rationality.critical thinking, ability, argumentation, ordinary language, epistemic rationality

Constitutional government and liberal freedoms : lessons from Argentina

I shall argue that constitutional documents (such as the bill of rights) are largely ineffective in fostering liberal freedoms. These primarily depend on main political groups reaching an equilibrium favorable to liberal values. I use here the game-theoretical concept of “equilibrium,” which, roughly, points to a situation where interacting individuals have an incentive to keep behaving as they do. Equilibrium on liberal values, I shall also argue, is in turn the result of factors exogenous to the incentive structure that constitutional rules impose on political actors. The procedural rules of a constitution, rather than its bill of rights, play a central role in promoting liberal freedoms once some such equilibrium is already in place. Or so I shall try to show. Some episodes in Argentine constitutional history will serve to illustrate these theses

Gaus on legal coordination

Gaus’ paper argues that social coordination is legitimate only if it satisfies the following two requirements: (a) there should be no Pareto-superior outcomes, and (b) “the authority of law derives from its role in improving everyone’s lot” (p. 9, Gaus’ emphasis). The former requirement may be thought to warrant legal activism whenever this leads to Pareto optimal equilibria. But this inference would be a mistake, since the costs of moving to one such equilibrium may be greater than the benefits accruing from being in it

Should Law Professors Teach Public Choice Theory?

This Article argues that various philosophically interesting objections to the use of public choice theory in legal education are misguided. Some writers hold that public choice theory, being descriptive, cannot help law students develop the interpretive skills needed by judges and lawyers. I reply that this objection rests on the false assumption that public choice theory lacks resources to accommodate rule following. Others object that public choice theory fosters cynicism and uncooperative attitudes. This rests on an unduly restrictive conception of the theory of rationality presupposed by public choice analysis. The public-choice focus on efficiency has also been disputed. In reply, the author shows that (i) Pareto efficiency is arguably a necessary requirement of distributive justice, (ii) we may have a moral duty to teach wrong principles, and (iii) public choice theory is instrumental to the realization of any ideal of distributive justice. The author also addresses Anthony T. Kronman\u27s objection that legal education should be about case-by-case balancing, and as such makes no room for public choice analysis. The author\u27s reply is that familiarity with public choice theory helps students identify the territories where genuine legal argument, rather than opportunistic bargaining, holds out hope of being persuasive. Finally, against those critics that allege that public choice theory is predictively inaccurate, the author shows that this shortcoming, even if genuine, need not prevent the theory from spotting hidden factors or guiding us towards institutions that economize on virtue

Should Law Professors Teach Public Choice Theory?

This Article argues that various philosophically interesting objections to the use of public choice theory in legal education are misguided. Some writers hold that public choice theory, being descriptive, cannot help law students develop the interpretive skills needed by judges and lawyers. I reply that this objection rests on the false assumption that public choice theory lacks resources to accommodate rule following. Others object that public choice theory fosters cynicism and uncooperative attitudes. This rests on an unduly restrictive conception of the theory of rationality presupposed by public choice analysis. The public-choice focus on efficiency has also been disputed. In reply, the author shows that (i) Pareto efficiency is arguably a necessary requirement of distributive justice, (ii) we may have a moral duty to teach wrong principles, and (iii) public choice theory is instrumental to the realization of any ideal of distributive justice. The author also addresses Anthony T. Kronman\u27s objection that legal education should be about case-by-case balancing, and as such makes no room for public choice analysis. The author\u27s reply is that familiarity with public choice theory helps students identify the territories where genuine legal argument, rather than opportunistic bargaining, holds out hope of being persuasive. Finally, against those critics that allege that public choice theory is predictively inaccurate, the author shows that this shortcoming, even if genuine, need not prevent the theory from spotting hidden factors or guiding us towards institutions that economize on virtue