A review of your titles from the last several years suggests you have an insatiable curiosity. Is there a topic you would never write about?

Transactions. Hang on—there is a bit about transactional law in “Partly Laws Common to All Mankind”: Foreign Law in American Courts. But the impression that I write about lots and lots is a bit misleading. I work through the central agenda of a couple of major areas: legal philosophy and the theory of politics, including historical and modern normative political theory. I maintain my interest in every aspect of these disciplines, rather than cutting things off in order to specialize. So one week it is Aristotle, another week it is ethical positivism, and a third week it is the separation of powers. It’s narrower than it seems.

Which ideas from your recent works have prompted the most disagreement?

The Harm in Hate Speech has excited the most disagreement. Actually, it is more denunciation. An anti-Semitic website described the book as a Jewish attempt to cut off our tongues! But there has been good-faith and good-natured disagreement as well from people I greatly respect. I have debated the book with Robert Post, dean of Yale Law School; Professor James Weinstein at Arizona State; and—most important for me—my dear friend and colleague Ronald Dworkin, just recently passed away.

What topics do you hope to explore next?

I’m continuing to write about human dignity, and I lectured last April at UCLA on the topic “What Do Philosophers Have Against Human Dignity?” (See also “Emotional Decisions”) I also want to devote some time to developing and elaborating some of Ronald Dworkin’s latest jurisprudential work, a way of carrying a torch forward after the wonderful start he gave us in resetting and reevaluating analytic legal philosophy. Finally, I have a little volume of essays on institutional political theory—I call it “political political theory”—in the works. There are essays on topics such as separation of powers, representation, loyal opposition, and judicial review.

How often do your own conclusions surprise you?

More and more. Especially when you are engaging with others and responding to their suggestions and criticisms, you find yourself taking your work into places you didn’t expect. Is it possible to say that a person can sometimes be surprised by their own moderation? That’s often the effect of the back-and-forth that scholarly debate embodies. But then there are times when one is surprised by one’s absolutism. I hadn’t expected to end up defending an absolutist position on torture when I began writing what became Torture, Terror, and Trade-offs: Philosophy for the White House 10 years ago, but it was a good place to end up.

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White’s dissertation will show how particular emotions, such as contempt, disgust, pity, or empathy, play an important role in evaluative judgment. A better understanding of the role of emotion, says White, will illuminate how human dignity is invoked in the adjudication of rights claims as well as how it relates to the procedural and evidentiary laws governing their adjudication. Her work has won her a three-year, $180,000 Trudeau Foundation Scholarship.

“Emily brings important insights from the philosophy of the emotions to understand the significance of appeals to dignity in human rights cases,” said University Professor Jeremy Waldron, White’s doctoral supervisor. “She has been able to show how important the emotional dimension is for a full-blooded understanding of what matters in certain kinds of legal argument.”

In legal theory, emotions are typically seen as having a negative effect on legal reasoning, says White. But she plans to show “how the concept of human dignity helps rights claimants expose the injustice of a legislative scheme or government act through the admission of evidence detailing suffering, humiliation, and degradation.”

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Goodman stated the matter more bluntly in a February 19 Slate piece, “The Lesser Evil,” in reference to the Obama administration’s leaked white paper on drones. “The administration claims, in the white paper, to have conducted an exhaustive review of the laws of war, and to honor those standards,” he wrote. “Its portrayal of the rules, however, is incomplete to the point of being wrong.” According to the Justice Department white paper, the government has discretion in wartime to choose whether to kill an enemy combatant, but Goodman contests that modern laws of war place real limits on that choice. He supports his contention by tracing a “lost history” of international legal authorities’ past support for restraints on the use of force, calling his claim “consistent with a long line of some of the most highly respected law of war experts who reached the same conclusion on this issue.”

Unsurprisingly, Goodman’s challenge to current conventional wisdom provoked strong reactions, both pro and con, from well-known scholars in the field of warfare. On the Lawfare blog, Professor Jack Goldsmith of Harvard Law School, former special counsel to the Defense Department, called Goodman’s work “timely and important.” A series of responses from prominent thinkers spurred a point-by-point debate between Goodman and his critics in several forums. And at least one powerful military voice took note of Goodman’s assertions: in his official blog as the Air Force’s general counsel, Charles Blanchard wrote that the vigorous exchange Goodman had inspired is “worth a careful read by all of us LOAC wonks.”

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In the piece, “Make Law Schools Earn a Third Year,” Estreicher and Rodriguez argue that increases in the cost of law school, coupled with decreasing numbers of high-paying firm jobs, demand greater flexibility in the training of practitioners. The op-ed, which was based on an article Estreicher wrote for the NYU Journal of Legislation and Public Policy (JLPP), appeared on the same day that NYU Law held a lively public discussion of the two-year proposal.

Law school debt, as Estreicher explained at the forum, limits most graduates’ career choices. For those interested in less lucrative public interest jobs who do not have access to a generous loan repayment assistance program like NYU Law’s, paying one-third less tuition might make sense. Estreicher stated that law schools should be free to offer three years of instruction, which is likely to remain the choice for many students. The key is to remove a legal requirement of the third year. Just having the option will not only help certain students but also create incentive for law schools to make the third year more relevant to students’ needs upon graduation.

Seated in the front row, New York Chief Judge Jonathan Lippman ’68 expressed keen interest in Estreicher’s ideas and freely acknowledged the ubiquity of the problems: “Sam’s proposal challenges us to take a good, hard look at what we’re doing now and where we should be going.”

Estreicher’s proposal is firmly rooted in a longstanding academic debate. His JLPP piece traced the history of the three-year requirement in New York State to a 1911 rule created by the NY Court of Appeals. In the 1970s, two prominent reports supported a two-year curriculum, but law schools opposed a proposal to revise American Bar Association accreditation standards.

With the financial recession causing upheaval in the legal profession, however, outside-the-box thinking is back in the zeitgeist. Last fall, NYU Law announced changes that give students the ability to use the third year as a transition to practice, including a specially designed study-and-practice-abroad semester in Buenos Aires, Paris, or Shanghai; a semester of study and government agency fieldwork in Washington, DC; specialized skill development in one of eight legal areas; and special instruction in business and financial literacy and leadership skills. And in February, the ABA’s Task Force on the Future of Legal Education held a public hearing. Many lawyers and students testified in support of a two-year option, along with training for limited-license legal technicians who are not lawyers but have more responsibility than paralegals (Washington State is already developing such a program).

In a 2012 interview when he was ABA president-elect, James Silkenat LLM ’78, now ABA president, emphasized the need for legal education reform. “Do all the law schools need to teach the same things? Do they all need to cost the same amount?” he asked. “Good minds need to focus on and come to some agreement on these issues.”

Even those who were slow to embrace the idea are coming around. Stephen Gillers ’68, Elihu Root Professor of Law, raised concerns at the January forum about whether state bar associations would recognize two-year graduates from New York and whether those graduates would have a disadvantage in competing for jobs. But in March, both Gillers and Estreicher signed an open letter to the ABA task force that was discussed in the Wall Street Journal’s Law Blog. The missive supported, among other measures, “awarding the basic professional degree after two years, while leaving the third year as an elective or an internship.” Fellow NYU Law professors Anthony Amsterdam, Norman Dorsen, Richard Epstein, Helen Hershkoff, Arthur Miller, and Burt Neuborne also signed on, as did Judge Richard Posner of the US Court of Appeals for the Seventh Circuit.

For Estreicher, two intertwined issues contribute to his uneasiness with the current state of legal education: lack of representation for most Americans combined with law graduates who are not prepared to meet working Americans’ everyday legal needs like drafting wills. “The current system may not hold in the near future,” he says. “That’s what we should be focusing on.”

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The controversial argument has created unexpected bedfellows. Famously liberal and atheist, Nagel has seen his book garner accolades from conservative publications and supporters of intelligent design theory. Conversely, scientists and some of Nagel’s fellow philosophers have expressed doubts about the book’s reasoning.

In the New Republic, Christian philosopher Alvin Plantinga called Mind and Cosmos an “important new book” that critiques “some of the most common and oppressive dogmas of our age,” and in the Wall Street Journal philosopher Jim Holt wrote that Nagel “offers a sharp, lucidly argued challenge to today’s scientific worldview.” The National Review deemed the book “a work of considerable courage and importance.” On the other end of the spectrum, Brian Leiter and Michael Weisberg offered in the Nation that “the subtitle seems intended to market the book to evolution deniers, intelligent-design-acolytes, religious fanatics, and others who are not really interested in the substantive scientific and philosophical issues” and suggested the book would be “an instrument of mischief.” A sympathetic Guardian piece nonetheless pronounced Mind and Cosmos “the most despised science book of 2012.”

Some critics had less polarizing reactions. Alva Noë of NPR invoked the book’s importance in prodding scientists and philosophers to dig deeper: “If we are to resist Nagel’s call for a radically new conception of fundamental reality…we need to do better than merely defend the status quo.” Through the uproar, Nagel himself has remained silent, preferring to leave his published arguments to speak for themselves.

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Examining doubt runs contrary to the typical focus of inquiry in Islamic jurisprudence, Rabb noted. Though they placed a premium on certainty, which has been “often conflated with textualist meanings of law,” Muslim jurists recognized that certainty was elusive. At the same time, the potential harm from any lack of certainty could be substantial. Doubt about the law or facts, Rabb said, could present “the God-subservient Muslim with a paralyzing burden: Apply a harsh criminal rule even if doubtful about the facts, or dismiss the rule in cases of doubt and risk disobeying the lawgiver.”

Rabb discovered, however, that the strict textualism that gave rise to this dichotomy departed from the mainstream approach to Islamic legal interpretation historically. Instead, she said, “most Muslim jurists came to see doubt less as an unmitigated burden to be avoided and more as a ubiquitous challenge to be resolved.” Contrary to common thought, “they did so by using a legal maxim that privileged doubt as an interpretive tool to avoid punishment through constructing contextualist meanings of Islamic law.”

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