Getting Serious About

Abstract

The motivation for this symposium is Professor Markovits's accusation—or at very least his genuine concern—that some American legal academics these days no longer "take legal reasoning seriously." This is no mere intellectual concern on his part, for he also suggests that this failure has genuine consequences for the practice of law and, ultimately, the quality of American life insofar as it is structured by law. If this be so, it is a grievous fault, and grievously must these academics answer it. But we think that the charge itself needs to be inspected carefully, not merely for what it says, but for what it does. In this essay we are interested both in Professor Markovits's specific views about "seriousness" and the more general question of what it means to take legal reasoning seriously. The two are not identical. Professor Markovits believes that taking legal reasoning seriously requires a commitment to belief in objectively right answers to questions of law that people can arrive at by reasoning about and through certain rights and principles. This theory of "serious" legal reasoning is inspired in large part by Ronald Dworkin's early work, although Professor Markovits apparently now believes that even Dworkin does not take legal reasoning sufficiently seriously.