Scott Hershovitz
@shershovitz
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professor @umichlaw and @umphilosophy , editor @legaltheory , author of NASTY, BRUTISH, and SHORT: ADVENTURES IN PHILOSOPHY WITH KIDS and LAW IS A MORAL PRACTICE
Ann Arbor, MI
Joined July 2013
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A few weeks ago, I asked The Guardian to gather kids' philosophy questions. They are AMAZING. (Josie, 7: "Are our imaginations made of atoms?"). Check out their questions -- and my answers -- at the link. And if you know kids with questions, post them!
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The judge I clerked for wouldn’t get in an elevator if it might contain people who wanted to influence his decisions.
Brett Kavanaugh was seen hanging out at a Republican party with Matt Gaetz, Sebastian Gorka, Sean Spicer, and Erik Prince, per
@politico
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Today, a happy RBG memory – the time I talked her into talking trash.
In OT06, the clerks had a fantasy baseball league. Some chambers had teams. Some individual clerks did. And Justice Alito wanted a team – for himself, not his clerks.
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Democrats need to put a clean bill that codifies Griswold's right to contraception on the floor NOW.
If it passes, we'll head off what's coming. And if it fails, people will see what the plan is.
Don't let them say that contraception is safe. Make them prove it.
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RBG chuckled when I told her. That’s the part of her that didn’t often come across in public. She wasn’t beyond a bit of mischief.
11/11
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The memo said:
Dear Sam,
My law clerks inform me that last week their fantasy baseball team defeated yours by a score of 10-0. I know you are busy, but we expect more, even from the junior Justice.
Respectfully,
Ruth
8/11
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The day Stewart Rhodes made his presentation in Akhil Amar's Bill of Rights class was wild. 🧵
For those who aren't that familiar with him, Stewart Rhodes, Oath Keepers leader, has a JD from Yale law school. Not even trying to make a broader point. But just ... there it is.
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Shortly after that, an Alito clerk called to complain – the Justice had assigned him to manage his team.
10/11
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She stooped over and studied it for what seemed like forever. Then she looked up and said, “What is fantasy baseball?”
So I started over. (I think that’s the only time I had to tell her something twice.)
5/11
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Which is the lesson, I suppose. Our government was almost overthrown by Stewart Rhodes, the My Pillow Guy, and this character. We need more self-respect.
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Back she went to reading.
The memo was all of two sentences. But she looked it over like an opinion.
Then she smiled and said, “I’ll sign it.”
6/11
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A short while later, Justice Alito replied. He acknowledged that RBG was entitled to gloat. But he added that, with the end of term, he planned to dedicate more time to his team, so our success wouldn’t last long.
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“Copies to the Conference?” I asked. And she said yes. So copies were soon hand delivered to every justice.
7/11
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She looked at me like I was insane. Which, I was. The end of the Court’s term is kind of busy.
Then I said, “Justice, I took the liberty of typing up a memo, which you might want to send Justice Alito.” And I slid it across her desk.
4/11
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In the last week of the term, the Ginsburg clerks were matched against Alito’s team.
RBG was on the losing end a lot that term.
Not this time. We destroyed him: 10-0.
2/11
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The next day, I went to see RBG in her office. I explained that her clerks were playing fantasy baseball, against other clerks -- and Justice Alito. And I described, in some detail, the sheer dominance our team had displayed.
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Yesterday, I discovered that
@amazon
has been selling pirated version of my book -- and encouraging people to purchase them. They've stopped now. (Thank you!)
But the scam on their site is sophisticated. Here's a bit of a detective story -- and cautionary tale for authors.
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Torts prof here.
In NJ, negligently exposing someone to an infectious disease is indeed a ground of liability. The leading case is called Earle v. Kuklo, and it involved TB transmission.
Text I just sent a lawyer:
“If you have an contagious life-threatening disease and you KNOW that, are there laws against exposing others without telling them? Some states have HIV sex partner notification laws. But what about walking around with TB or, I dunno, SARS-CoV-2.”
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Charged my nine year old $3 to take a home covid test because he has to get used to surprise medical bills.
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The lecture had roughly the relationship to history this this had to meteorology.
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The proper way to rank law schools is by the quality of tacos available within walking distance.
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The whole thing was simultaneously horrifying and hilarious.
For sure, we would have voted Rhodes Most Likely to Lead a Seditious Conspiracy. But no one appreciated how dangerous he was. He seemed more goofy than anything.
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I'm still absorbing the news that Joseph Raz has died. Amidst the celebrations of his work in philosophy, I want to say something about Joseph as a person and teacher.
It's no exaggeration to say that I owe my career to an act of kindness from Joseph.
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Hey look, it's twenty-five years of thought in physical form.
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There was this though.
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Rhodes just commandeered the class. Filled the blackboard, asked to say some words, and Amar let him say *a lot* of words -- and hand out pamphlets. As I said, it was wild.
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And here's proof that I didn't hallucinate this:
@shershovitz
This is what I've been waiting to read. This the first time I've seen anyone even recall they had gone to school with him. I absolutely remember how thrilled he was at ordering those. The JPFO guy (now dead)shipped them personally and called to hear about how it went.
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Update: hearing now from other people that were in that class, and it's even weirder than I remembered. We didn't give presentations (which explains why I couldn't remember mine).
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We took our seats, and he launched into a lecture, which in retrospect we'll call "An Insurrectionist Reads the Second Amendment."
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He did throw a sock hop for his sixtieth birthday. Moved his furniture out of the living room. Invited his friends. Danced. But didn't consort with anything like this cast of characters.
@shershovitz
Please show me the tweet where you complain about the parties Democratic-appointed justices attended. They’re justices, not monks.
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What was it like to be a law clerk for Learned Hand? Here's your first day (courtesy of Ronald Dworkin).
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Ok, here's a crash course in jurisprudence -- and an explanation of what I mean when I say that law is a moral practice.
Most conversations about the relationship between law and morality presume a picture that looks like this -- law and morality are separate . . . 1/n
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Here's my nominee for weirdest opening to a philosophical essay. What's yours?
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Folks, I have never googled anything so fast in my life. I mean, I'm pretty familiar with Jewish organizations. I met my wife through one. But I'd never heard of JPFO. I was skeptical, but sure enough, it exists. (I won't link it, but there's The Google if you need to see.)
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When we showed up for second amendment day, Rhodes had been there for a while. And he'd filled every inch of the blackboard, Beautiful Mind style.
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Then he spoke one of the most amazing sentences I've ever heard: "I am a member of Jews for the Preservation of Firearms Ownership."
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I don't recall the details all that well, I think the thesis was that the point of the second amendment was to preserve the possibility of a second revolution. But mainly, he wanted to disabuse us of gun control "myths."
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In honor of Justice Breyer's retirement, a story about the worst question he ever asked at oral argument -- and the best!
By all means, add your favorite SGB questions below.
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Midway through, he started to pass "literature" around the room -- a series of Gran'pa Jack books -- including this gem.
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At the lowest point in our life, RBG sent this note to
@JulieRKH
and me. Her kindness and wisdom meant so much. And she's right: "This too shall pass."
But only if we carry on her work.
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The lecture went was LONG -- it took the whole hour.
I don't know if Amar was amused or afraid -- or if he thought we were learning something -- but he made no effort to stop him.
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When the rant reached it's crescendo, Rhodes said, "People always ask me whether I'm in the NRA. The answer is NO, because they don't fight hard enough for our Second Amendment rights."
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Six years ago today, I started writing a book about jurisprudence. I took some breaks along the way and wrote a different book. But today, I finished. The final manuscript is in HUP's hands. It should be out before the end of the year. And I'm going to take a nap.
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We all got an amendment. Rhodes picked the second, of course. We were supposed to do a twenty-minute presentation at the start of our session.
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Welcome to the world, little guy.
Out today. Maybe not in bookstores near you. But easily accessible and on sale (promo code HOL23):
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Here's what you need to know about these rankings: The best pizza is near Yale. The best tacos are near UCLA. The best cheesesteaks are near Penn. And the best people are at Michigan.
That's it, folks. That's how you choose.
New US news Law School T14, for those who celebrate:
1st: Yale, Stanford tie
3rd: Chicago
4th: Penn
5th: Duke, Harvard, NYU tie
8th: Columbia, UVA tie
10th: Berkeley, Michigan, NW tie
13th: Cornell
14th: UCLA
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They proudly proclaim themselves "America's Most Aggressive Civil Rights Organization."
And they produce the Gran'pa Jack series.
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We remade Michigan Law this year -- hiring 20 new faculty members across all categories, including 16 new research faculty.
It's an extraordinary set of scholars -- and there are more to come.
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Next semester, I'm teaching a seminar called "Life, Death, Love, and the Law." The idea is to think about ethical questions that arise at the edges of life -- and the ways the law should or shouldn't regulate them.
Who's got readings for me?
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Thinking of John Gardner today and the tutorial he ran for my kids at All Souls.
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Amazon took the pirated version down when Penguin asked. That's good! Thanks again!
But I think they'd been directing people to it for months. And they were taking a cut from every pirated sale.
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Writing philosophy is mostly trying not to be misunderstood.
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A final note: I came to praise Breyer, not mock him.
Oral argument nearly never makes a difference.
It is a performance.
And for Breyer, it was muppet madness. Pure improv.
He had a great run. I'm sad to see the show close.
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If You Are Good Because Santa Claus is Coming to Town, You Are Not Good for Goodness Sake: A Theory of Moral Motivation
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Just realized that Dworkin was 46 when he published Taking Rights Seriously. Hart was 54 when he published The Concept of Law.
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They are exploiting the fact that
@amazon
directs people to the lowest price edition. That's how you end up with the hardcover listing offering the pirated book.
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Hey philosophers, I'm reupping my Life, Death, Love, and the Law course next semester. I've got life and death covered, but the students want more love.
What should we read? What are your favorite books or essays about love? (No connection to law needed.)
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This seems to be a recurring problem for
@amazon
, even with print books. Some speculate they won't invest in weeding out counterfeit goods, as they get their cut either way. I don't believe that. I think
@JeffBezos
wants Amazon to be trustworthy.
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I just looked at the calendar and realized I've got a book coming out next month. I'll start posting about it soon, but you don't have to wait for that to preorder:
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After many years of parenting, our daylight savings plan works like this. The night before the switch, we put them to bed two hours late. The night after, we put them to bed on time. Does it make any sense? No. Does it work? Also, no. Does it mean we can watch Star Wars? Yes.
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Hey, philosopher of law here. This is uncommonly stupid and worth calling out. Not all norms worth enforcing should be enforced by the state. Platforms have moral responsibility for the speech they amplify, whether they want it or not.
@Cernovich
Like I said, my preference is to hew close to the laws of countries in which Twitter operates. If the citizens want something banned, then pass a law to do so, otherwise it should be allowed.
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This is a sophisticated scam. I noticed the price drop on the Kindle edition earlier this summer. I thought Penguin had done that. But no.
Someone has been posting pirated copies, misspelling my name, so the books don't show up on my author page. Repeatedly.
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But I think
@amazon
has a system that's easy to scam. And that hurts authors more than Amazon.
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Hey
@DavidZapolsky
, I teach
@UMichLaw
and I'd like to better understand what's going on here. I'd be curious for your help in figuring out what the losses were -- for me and
@amazon
.
I'd also like to know how Amazon understands its liability in this space.
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The animating idea of Nasty, Brutish, and Short is that kids are fantastic philosophers. Today, The Atlantic gave me some space to make the case.
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Susan Wolf on ways a person might waste her life: addicted to drugs, addicted to television, or . . .
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The most annoying bit is that
@amazon
encourages people purchase the pirated edition instead of the hardcover. Until last night, you'd see this right as you put the hardcopy in your cart.
If you click the Kindle eBook link, you'd get the pirated version.
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What's happening here? Amazon is selling two Kindle editions of my book. you can see that right here. The first was published by Penguin Press on May 3. The second was published by . . . nobody ... just a few days ago?
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That was who he was outside the page, and I'm forever grateful for it.
I will miss him dearly.
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Except the scam didn't start last week. The top review here was posted on August 18. (I've included an extra review, just so you can see that the book really is "excellent," if you get to read it -- Thanks Tom!).
@Amazon
, can you take down the review of the pirated copy?
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What hurts most is not the loss of the coup itself but the opportunity to track it minute by minute.
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In the meantime, authors ought to keep an eye on their Amazon listings -- and watch our for odd prices or complaints. So spread the word.
And buy Nasty, Brutish, and Short! Here's a link to the real deal. Tom says it's "excellent."
/end
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Amazon, displaying the most important information for your purchasing decision.
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Some of the richest conversations I've had with my kids have been about God. Today,
@nytopinion
let me share some thoughts about the problem of evil and the value of religious rituals for those who don't believe.
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Wait, this is weird. Some of the ad copy for the book has disappeared. And . . . this book was written by a guy who's got an extra letter in his name.
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There are interesting copyright issues here. And questions about the DMCA.
@Klonick
@CJSprigman
@nirrvala
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And I'd like to learn more about what Amazon is doing to tackle this problem.
Feel free to DM me,
@DavidZapolsky
. You guys are getting scammed too.
I know you want to sell authentic -- and readable! -- books.
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Joseph Raz liked to point out that eating the same thing for breakfast every day isn't considered weird, but eating the same thing for dinner every day is. I think about that a lot.
I find it odd that people think eating a meal on repeat is somehow aberrant and needs a name like “hyperfixation.” Endless varieties of food choices seems way more aberrant & likely to trigger paradox of choice issues. Our ancestors didn’t have 29 takeout options for every meal.
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Hey philosophers of law, here's a thought experiment.
The founders of some future country read Law's Empire and when they get to the law-as-integrity bits, they think "yes, this is it, this is how we want our legal system to work." 1/n
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I don't think jurisprudence can save us from authoritarianism. But there's a long tradition of arguing legal positivism puts us in a better position to critique the law than its anti-positivist alternatives. And that's flat wrong.
@shershovitz
’s important book, in essence discusses whether law can be a separate normative system to morality. Important questions for hybrid regimes e.g Pakistan where Positivist theories (Kelsen, Austin) have been liberally relied upon for justifying authoritarianism.
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Over the weekend, I got an email from a person who purchased the Kindle version of Nasty, Brutish, and Short. He said he loved what he'd read so far. But he couldn't keep going -- the book was both poorly and bizarrely formatted.
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A couple weeks earlier, I'd noticed a review on Amazon complaining about the same thing. But I didn't think much of it. It was just one review.
Once I had two, I started to investigate. I downloaded the Kindle sample of NBS, and it looked great, at least on my device.
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Here's the Table of Contents for Law is a Moral Practice.
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That wasn't a surprise. Here's the listing for the Kindle edition of my book. It sells for $15.99. It's part of the Great on Kindle program. And let me tell you, the book is Great on Kindle. It's great in any format, really. If you get the real one.
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Top search results for "Nasty, Brutish, and Short" on Amazon.
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I'm just going to hazard a guess here, but no, I do not think Scalia got his point. I do not think anyone did. But I would absolutely enroll in Breyer on Biology. Or take his pet oyster to the park.
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But not everyone did. Here's the hardback listing for my book (as of last night). Note the price listed for the Kindle edition -- $9.99.
What a bargain! Let's click that link . . .
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Pretty sure this guy was Reviewer 2 for every article I ever submitted.
If you only have time to read so many RBG stories, I'd skip this one. It's pretty boring.
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@gelbach
Yes, but contraception has the best politics at the moment. That's the one to run on.
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And my work will be better for it.
But the main thing I want so say is: Joseph didn't have to go to bat for me in the Oxford bureaucracy. And he didn't have to take me on as his student. It was pure generosity.
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In the event that Harbaugh goes to the NFL, I just want to say that I'm already on campus and I give a pretty good pregame speech.
(Here, leading the
@UMichLaw
hockey team into battle against the business school, with an assist from the boys.)
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Justice Scalia: "Well, it's not an animal."
Justice Breyer: "Thank you. An oyster in my course in
biology is an animal, all right. Maybe in yours it was a rock, or a vegetable or a mineral. But regardless, you see my point . . . ."
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Back to Breyer:
"But I cant remember the rule, so I say, 'no animals in the park.' And then I need a problem case, so I say 'and someone wants to bring in their pet oyster.'"
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I had the most remarkable teaching experience this semester, one that bears no relationship to the way higher education is presented in the media.
I taught a class called Life, Death, Love, and the Law. It was mostly about abortion and euthanasia.
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