Essay

Halpin on Dworkin’s Fallacy: A Surreply

In my recent essay, Dworkin’s Fallacy, or What the Philosophy of Language Can’t Teach Us about the Law, 89 Va. L. Rev. 1897 (2003), I argued that a particular confusion between linguistic and legal practices – evident most notably in the work of Ronald Dworkin – causes legal theorists to misderive jurisprudential conclusions from semantic premises. Because much, if not most, jurisprudential interest in the philosophy of language is motivated by Dworkin’s fallacy, I argued that the philosophy of language does not generally have jurisprudential consequences. But in the conclusion to my essay I identified three areas where Dworkin’s fallacy does not apply and the philosophy of language has genuine, albeit very limited, consequences for the philosophy of law. 

Halpin argues that I neglected a number of important connections between the two disciplines. But the connections Halpin describes are in fact those that I identified as genuine in the conclusion to my essay. What is more, Halpin appears to agree with me that these connections, although genuine, are very limited, in the sense that they yield few substantive jurisprudential consequences. Halpin sees a disagreement between us on these matters only because he misunderstands the confusion of linguistic and legal practices at issue in Dworkin’s fallacy.

But Halpin does argue for a connection between the philosophies of language and law that is different from those I entertained in my essay. I was interested in whether the philosophy of language can yield conclusions in the philosophy of law. Halpin appears to agree with me that it cannot. But Halpin argues that the philosophy of law can yield conclusions in the philosophy of language. Although Halpin’s argument here is suggestive, it is insufficiently detailed to allow me to come to a firm conclusion about its merits.

In my essay I offered Dennis Patterson’s legal theory, with Dworkin’s, as examples of Dworkin’s fallacy in action. Halpin argues that Patterson’s theory does not suffer from Dworkin’s fallacy. I end my response to Halpin with a defense of my critique of Patterson, by expanding what was admittedly a compressed argument in the original. 

Crime Severity and Constitutional Line-Drawing

Some speech risks inciting or aiding serious crimes. Other speech risks causing only minor crimes. Some searches and seizures are aimed at catching kidnappers, others at catching bookies. 

Should constitutional doctrine draw lines that turn on crime severity? And if it should, how should these lines be drawn? Commentators and judges have often urged that the first question be answered yes. And yet the trouble with a yes answer is that it requires courts to answer the second question – which isn’t easy, given how bitterly people often disagree about the severity of various crimes (for instance, white-collar crimes, drug crimes, copyright infringement, or even burglary). 

Surprisingly, this matter has rarely been discussed broadly, cutting across various constitutional provisions, such as free speech, the Fourth Amendment, the right to jury trial, and the Eighth Amendment. This Essay tries do so. It identifies four possible approaches to judging crime severity in constitutional doctrine. It discusses the pluses and minuses of each approach. And it concludes that two simple answers—that such severity distinctions are always improper, and that they are unproblematic—are mistaken.

The Space Between School Desegregation Court Orders and Outcomes: The Struggle to Challenge White Privilege

This Essay reports on the results of a five-year study of six communities that tried to racially balance their public schools during the 1970s. This research reveals the details that lie between the court orders (or whatever desegregation policy existed) and the student outcome and demographic data that have been captured in quantitative analyses. In the space between the mandates of desegregation and the results, we found that the schools and communities often unwittingly reproduced racial inequality by maintaining white privilege within the context of desegregated schools. Yet at the same time, these schools provided spaces where students and educators crossed the color line in ways they had never done before and have not done since.

This Essay argues that the school desegregation policies that existed in these school districts, though better than nothing, simply were not enough to change the larger society single-handedly. It illustrates how difficult it was for the people in these schools to live up to the goals of school desegregation given the larger societal forces—including racial attitudes and politics, housing segregation, and economic inequality—working against them. It also documents how deeply committed some of these actors, both educators and students, were to trying to bring about change. In this way, the study speaks to larger lessons about the role of schools in society and the uphill but worthwhile efforts of lawyers and judges to use schools as one of very few tools for social change.

Racial inequality and the resultant segregation did not begin in the public schools; thus, we should not expect remedies in the public schools to solve the problem alone. But we can rely on racially diverse public schools—to the extent that current policies allow them to exist—to be important sites in the struggle for a more just society. Lawyers and legal scholars who helped fight for school desegregation and who continue to push for racial diversity in educational settings need to understand this more complex view of the history and reality of school desegregation in the United States in order to move forward with new legal strategies.

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