Friday, May 17, 2013
Non-State Law and Enforcement
As I mentioned in my last post, I've been doing some thinking about what it means to be non-state law and looking to different types of non-state law - such as international law or religious law - to consider some common dynamics that consistently arise.
One theme that regularly emerges - and is often discussed - in the context of non-state law is the problem of enforcement. Put simply, without the enforcement power of a nation-state, non-state law must typically find alternative mechanisms in order to ensure compliance with its rules and norms. This hurdle has long figured into debates over whether one can properly conceptualize international law as law.
But the focus on enforcement is problematic for a couple of reasons. First of all, the challenge of enforcement for non-state law is in many ways overstated. For example, in a 2011 article titled Outcasting: in Domestic and International Law, Oona Hathaway and Scott Shapiro explored this issue, emphasizing - especially in the context of international - how certain forms of nonviolent sanctions, such as denying the disobedient the benefits of social cooperation and membership, can be deployed as a form of non-state law enforcement. Indeed, the use of outcasting has long been prominent in other areas of non-state law, such as a method to enforce religious law within religious communities.
There's, of course, much more to be said on the relationship between non-state law and enforcement (something I may explore in a subsequent post). But too heavy an emphasis on this piece of the non-state law puzzle is problematic for a second reason - it too often obscures other important ways in which non-state law functions as law. In my next couple of posts what I'd like to do is consider other ways in which various forms of non-state law function as law by focusing more directly on the internal practice of law within the relevant communities.
Posted by Michael Helfand on May 17, 2013 at 04:46 PM in International Law, Legal Theory, Religion | Permalink | Comments (1) | TrackBack (0)
The Modified Workshop Queuing Experiment
In the interest of sharing ideas, I wanted to say a word about workshops. Over the last several years I have co-run with Einer Elhauge a workshop in health policy, biotechnology, and bioethics, where leading scholars present works in progress.
We usually have a significant number of faculty and fellows, as well as several students who enroll for credit. The session is about two hours, with 30 minutes ear marked for the presenter and the rest for Q & A. After observing our faculty workshops and other Harvard Law workshops over the years, I became dissatisfied with standard queue system, in part because tangents or ideas get lost and don’t build on one another as much as I would like. Instead I have used what I call the “modified queue,” am quite happy with it, and want to share it with you (and also get other ideas you have used that work).
Here is how it works (it sounds much harder than it is, it is pretty easy in operation):
- Raise one hand and get listed on the “regular” queue just like in most workshops.
- Raise TWO hands if you have a follow-up question to one that has been asked (or to the answer to it). I always remind people here that they will be policed by the social opprobrium of others if their “follow-up” question does not look sufficiently follow-up-esque. I then go through all the follow-ups and put them on a follow-up queue [But note that if you ask a follow-up to a follow-up you are given no additional priority on the follow-up queue, just put to the end of it]
- If you are on the “regular queue” and you ask a follow-up I “demote” you and put you to the end of the “regular queue” as it now stands, thereby making asking a follow-up question slightly costly in that it means your own question is delayed.
- Occasionally when there are too many follow-ups (say more than four or five) and/or when we are getting towards the end of our time and someone who has been patiently waiting on the regular queue has not yet got to ask their question, I will “cheat” and start putting people asking follow-up questions to the end of the regular queue. This way I ensure that follow-ups don’t swallow the whole regular queue.
I (and I think others who have attended the workshop from what I hear) have been very happy with this system. I have now started exporting it to conference sessions I chair where the format is workshop-y too. Try it out, if you care to, and let me know what you think!
Posted by Ivan Cohen on May 17, 2013 at 10:31 AM in Teaching Law | Permalink | Comments (0) | TrackBack (0)
Thursday, May 16, 2013
Missing Minorities in a New Publication About Law School Diversity
The publication Lawyers of Color just published a special issue on diversity in the legal academy, apparently aimed at students. It identifies "50 Under 50", the most influential minority law professors under 50 years old, a very distinguished group. It also purports to list the most diverse law faculties and to identify every minority law professor teaching at every law school.
Unfortunately, the reliability of these lists is impaired by the fact that many people were left off the list of minority law faculty. For example, at UC Davis, 10 colleagues were listed, but I was omitted. I might suspect that this was my dean's way of trying to tell me something, but he was another one of the ten faculty in total who were left off. The missing faculty may explain why UC Davis made the National Jurist Diversity Honor Roll but not this list. Seattle University, which has around 18 minority law faculty, was not mentioned at all.
Because this is a digital publication, I hope it can be corrected and updated before students making decisions are misled.
Posted by Jack Chin on May 16, 2013 at 06:20 PM | Permalink | Comments (4) | TrackBack (0)
Learning from exams
I want to own and expand on a comment from Jessie's post about the teaching value of taking and grading exams.
Like Jessie's commenter, grading exams puts in stark relief what I did well and not so well during the semester. My exams showed that the two big problems this semester involved amendments to pleadings under FRCP 15(a) and the primary federal venue statute, § 1391. The answers I saw on the exam showed that the overwhelming majority of students did not understand what the language of either provision means or how the pieces fit together. This is a bit ironic, actually, because both provisions recently were revised (§ 1391 in the Juridiction and Venue Clarification Act of 2011 and FRCP 15 substantively and as part of the Restyling Project) specifically to make them clearer. So much for that. Like Jessie's commenter, I wish I had known this at the time so I could have spent a bit more time going over it.
At some level, the misunderstanding as to both provisions reflects a general weakness in reading and understanding statutes, triggering the ongoing question of how to get students to properly read statutes when they otherwise are focused only on case law.
Continue reading "Learning from exams"
Posted by Howard Wasserman on May 16, 2013 at 03:25 PM in Howard Wasserman, Teaching Law | Permalink | Comments (7) | TrackBack (0)
Spreading out grading
I am happy to say I have finished grading for the semester and it was as thrilling an experience as ever. I experimented for the first time with a mixed short-answer/multiple choice format for the final in Civ Pro and liked it a lot as a testing mechanism; it gave me a good sense of what students did and didn't know (I will have more to say about that in a later post). I also did not find grading it overly burdensome.
The real struggle for me was grading the take-home essay portion--that is the part that feels overwhelming. And it struck me this cycle that the source of the struggle is several-fold: 1) the sheer number of essays to read all at one time, 2) that they all say basically the same thing (things actually, since students wrote on one of 3 questions), and 3) the fairly short time window (about a week) to get them all read, which even if sufficient time, feels crunched. So while it is perhaps too soon (my grades have not yet posted and I have not yet met the deluge of questioning 1Ls), I am thinking about alternative approaches for next spring.
Continue reading "Spreading out grading"
Posted by Howard Wasserman on May 16, 2013 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (6) | TrackBack (0)
Blog Symposium on Radin's Boilerplate
There is a blog symposium at ContractsProf on Peggy Radin's new book, Boilerplate. My micro-review on the fetishization of consent is available here.Posted by Ethan Leib on May 16, 2013 at 09:15 AM | Permalink | Comments (0) | TrackBack (0)
First Amendment Institutions in the Law and Politics Book Review
My most recent book, First Amendment Institutions (it makes a good Victoria Day gift!), is reviewed in the latest issue of the Law and Politics Book Review by law professor Ruthann Robson. It's a tough but fair review. I welcome the criticism, and hope I may be forgiven for cherry-picking a couple of generous lines: the book "provides the most sustained, nuanced, and well-reasoned argument for an 'institutional turn' in First Amendment jurisprudence," and "admirably achieves" the goal of "open[ing] a conversation about First Amendment institutionalism, . . . providing a book that is worth reading, considering, and debating." Obviously, I hope people will read and even buy the book, and take part in that conversation. But it's very much meant to be a conversation, and Robson's criticisms are a valuable part of that. Read the whole review (and the book, of course!).Posted by Paul Horwitz on May 16, 2013 at 08:00 AM in Paul Horwitz | Permalink | Comments (2) | TrackBack (0)
Wednesday, May 15, 2013
Rationing Legal Services
In the last few years at both the federal and state level there have been deep cuts to providing legal assistance to the poor. This only only makes more pressing and manifest a sad reality: there is and always will be persistent scarcity in the availability of both criminal and civil legal assistance. Given this persistent scarcity, my new article, Rationing Legal Services just published in the peer-reviewed Journal of Legal Analysis, examines how existing Legal Service Providers (LSPs), both civil and criminal, should ration their services when they cannot help everyone.
To illustrate the difficulty these issues involve, consider two types of LSPs, the Public Defender Service and Connecticut Legal Services (CLS), that I discuss in greater depth in the paper. Should the Public Defender Service favor offenders under the age of twenty-five years instead of those older than fifty-five years? Should other public defenders offices with death eligible offenses favor those facing the death penalty over those facing life sentences? Should providers favor clients they think can make actual innocence claims over those who cannot? How should CLS prioritize its civil cases and clients? Should it favor clients with cases better suited for impact litigation over those that fall in the direct service category? Should either institution prioritize those with the most need? Or, should they allocate by lottery?
I begin by looking at how three real-world LSPs currently rationi(PDS, CLS, and the Harvard Legal Aid Bureau). Then, in trying to answer these questions I draw on a developing literature in bioethics on the rationing of medical goods (organ, ICU beds, vaccine doses, etc) and show how the analogy can help us develop better rationing systems. I discuss six possible families of ‘simple’ rationing principles: first-come-first-serve, lottery, priority to the worst-off, age-weighting, best outcomes, and instrumental forms of allocation and the ethical complexities with several variants of each. While I ultimately tip my hand on my views of each of these sub-principles, my primary aim is to enrich the discourse on rationing legal services by showing LSPs and legal scholars that they must make a decision as to each of these issues, even if it is not the decision I would reach.
I also examine places where the analogy potentially breaks down. First, I examine how bringing in dignitary or participatory values complicates the allocation decision, drawing in particular on Jerry Mashaw’s work on Due Process values. Second, I ask whether it makes a difference that, in some cases, individuals who receive legal assistance will end up succeeding in cases where they do not “deserve” to win. I also examine whether the nature of legal services as “adversarial goods”, the allocation of which increases costs for those on the other side of the “v.”, should make a difference. Third, I relax the assumption that funding streams and lawyer satisfaction are independent of the rationing principles selected, and examine how that changes the picture. Finally, I respond to a potential objection that I have not left sufficient room for LSP institutional self-definition.
Continue reading "Rationing Legal Services"
Posted by Ivan Cohen on May 15, 2013 at 02:57 PM in Article Spotlight, Civil Procedure, Law and Politics, Legal Theory, Life of Law Schools, Peer-Reviewed Journals | Permalink | Comments (2) | TrackBack (0)
Buy "The Business of Baby!"
I almost missed it, but you might enjoy, from this weekend's New York Times Book Review, this review by Annie Murphy Paul of "The Business of Baby," a book by the capitalist journalist Jennifer Margulis.Posted by Paul Horwitz on May 15, 2013 at 10:38 AM | Permalink | Comments (0) | TrackBack (0)
JOTWELL: Coleman on Hoffman on federal rulemaking
The latest essay for JOTWELL's Courts Law is by Brooke Coleman (Seattle), reviewing Lonny Hoffman's Rulemaking in the Age of Twombly and Iqbal (forthcoming, U.C. Davis Law Review).Posted by Howard Wasserman on May 15, 2013 at 10:33 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0) | TrackBack (0)
A Jot on "Balkan Ghosts"
The latest con law "jot" from Jotwell: Pat Gudridge on Reva Siegel, balkanization, and equal protection. Enjoy!Posted by Paul Horwitz on May 15, 2013 at 10:08 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack (0)
The Getting (Criminal Law) Scholarship into Courts Project: Litigate This
I'm involved in a new project designed to connect practicing criminal lawyers with useful legal scholarship. I am very excited about it, because, contrary to some, I think law review articles are frequently relevant to legal issues decided by courts. Every month, a committee of practicing and academic lawyers will identify a set of articles about issues practitioners might want to raise in their cases, and the NACDL will circulate them. Here's the first batch, featured in the NACDL magazine, The Champion, which includes papers by Deborah Denno, Glenn Reynolds & John Steakley, and Deborah Tuerkheimer.
The premise is that practitioners do not have time to read law review articles systematically because, many articles, even in the criminal area, will be distant from the kinds of claims and arguments cognizable in court. The result is that lawyers may never see law review articles that could be sources of ideas, cases, and authority. We hope and believe there will be an appetite for innovative, ready-to-litigate articles. We invite all Prawfs readers to nominate recent articles written by themselves or others which might be of interest to lawyers litigating cases (contact Andrew Ferguson at aferguson -at- udc.edu).
My view is that the generally low visibility of articles is unfortunate for both professors and practitioners.
Continue reading "The Getting (Criminal Law) Scholarship into Courts Project: Litigate This"
Posted by Jack Chin on May 15, 2013 at 09:40 AM | Permalink | Comments (3) | TrackBack (0)
Freedom of the Church Without Romance
I'm happy to share my latest draft paper, Freedom of the Church Without Romance. It was written for a symposium at the University of San Diego's law school called "Freedom of the Church in the Modern Era," and I must say that the articles coming out of that symposium, mine excepted, are very strong and will constitute excellent resources for those interested in the increasingly popular subjects of "freedom of the church," religious institutional autonomy, the ministerial exception, and related themes. Some of them are available for download here, and see also these pieces.
Every scholar has articles they're more or less proud of for one reason or another, and I'm quite proud of this one, for two reasons: (1) it takes an idea I have championed and associated myself with and subjects it to critical analysis, rather than simply defending it one more time; and (2) it makes the important (I think) point that church-state legal scholars ought to do much more with the substantial literature on the economics of religion. I hope others enjoy it, and I welcome comments. Here's the abstract:
This Article is part of a symposium issue titled "Freedom of the Church in the Modern Era." Freedom of the church, roughly, connotes the independent nature or sovereignty of the church. The most dramatic moment in its development was the eleventh century Investiture Controversy, with its confrontation between Pope Gregory VII and Emperor Henry IV at Canossa, but it has a long prior and subsequent history. Recently, with the renewed scholarly interest in the institutional rights of churches and religious organizations and the Supreme Court's decision affirming the "ministerial exception" doctrine in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC,the idea of "freedom of the church" has taken on new champions--and critics.
This Article, from an author who has written supportively about freedom of the church and/or religious institutionalism in prior work, takes a deliberately unromantic look at freedom of the church. It evaluates it through two useful disciplinary lenses: history, and the economics of religion.
Both historical and economic analysis of the concept of"freedom of the church" suggest the following conclusions: (1) The concept should be treated carefully and with a full awareness of its mixed history, without undue romanticism on the part of its champions--or a confident conclusion on the part of its critics that it is no longer necessary. (2) Whatever the concept of "freedom of the church" means today, the present version is decidedly diminished and chastened, a shadow of the medieval version. Supporters of freedom of the church should welcome that fact. Freedom of the church persists, and may have continuing value, precisely because it has become so domesticated. (3) There are solid historical and economic grounds for some form of freedom of the church or religious institutional autonomy. In particular, religion's status as a credence good, whose value and reliability is certified by religious agents such as ministers, strongly suggests that state interference with religious employment relations can be dangerous to a church's well-being and long-term survival. (4) The history and economics of religion also teach us something about the optimal conditions for freedom of the church--the conditions under which it is likely to do the most good and the least harm. In particular, they suggest that champions of freedom of the church ought to welcome religious pluralism and a strong non-establishment regime.
The Article closes with some speculation about why there has been a recent revival of interest in freedom of the church, including the possibility that its resurgence, even if it is fully justified, also involves an element of rent-seeking by religious institutions.
There are two broader underlying suggestions as well. First, there are good reasons to support some version of freedom of the church, but it deserves a more critical and nuanced examination by friends and adversaries alike. Second, legal scholars writing on church-state issues have paid far too little attention to the literature on the economics of religion.
Posted by Paul Horwitz on May 15, 2013 at 08:32 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack (0)
Two Moving Testimonies
Here are links to two recent powerful pieces of personal testimony, both dimly but only dimly law-related. The first is this moving letter-cum-tribute between law professor Charles Barzun and his illustrious grandfather, Jacques Barzun. The second, even more powerfully personal, is this piece by lawyer Tony Nitti, about suffering and recovering from a brain aneurysm, in which he observes and explains why, "when recovering from a life-threatening ailment, the real challenge often doesn’t begin until the healing is complete." Both are well worth reading.Posted by Paul Horwitz on May 15, 2013 at 08:16 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack (0)
Tuesday, May 14, 2013
Dean Wu and Judge Chin Reenact Vincent Chin Trial
May is Asian Pacific American Heritage Month, so it is appropriate to share this reenactment of the trial of the men who killed Vincent Chin in 1982. The killing was a transformative event in the history of APAs, and UC Hastings Chancelor & Dean Frank Wu and Second Circuit Judge Denny Chin have presented this trial reenactment in a number of venues. It is quite amazing, in my opinion.
Posted by Jack Chin on May 14, 2013 at 02:58 PM | Permalink | Comments (1) | TrackBack (0)
Oh, the Cases You'll Know
The faculty at Osgoode Hall Law School offer Seussian encouragement--sort of. (H/T: My colleague Jan OseiTutu)
Posted by Howard Wasserman on May 14, 2013 at 01:11 PM in Howard Wasserman, Teaching Law | Permalink | Comments (1) | TrackBack (0)
Is a broadcast to everyone private under the Copyright Act?
For the final post in my extended visit here, I want to focus on another example in my series of discussions about formalism vs. policy in copyright. Today’s case is WNET v. Aereo, which allowed continued operation of a creative television streaming service. As I’ll discuss below, the case pretty clearly complies with the statutory scheme, much to the relief of those who believe content is overprotected and that new digital distribution methods should be allowed. This time, the policy opposition is best demonstrated by Judge Chin’s dissent in the case.
In the end, though, the case shows what all of the cases I’ve discussed show: copyright was not really developed with digital content storage and streaming in mind. While some rules fit nicely, others seem like creaky old constructs that can barely hold the weight of the future. The result is a set of highly formalistic rules that lead to services purposely designed inefficiently to either follow or avoid the letter of the law. This problem is not going to get any better with time, though my own guess hope is that the pressure will cause providers to create some better solutions that leave everyone better off.
Continue reading "Is a broadcast to everyone private under the Copyright Act?"
Posted by Michael Risch on May 14, 2013 at 08:34 AM in Intellectual Property, Television, Web/Tech | Permalink | Comments (7) | TrackBack (0)
The inevitably phoney textualism of "express" preemption doctrine
Few probably waited with eager anticipation for the SCOTUS to hand down Dan's City Used Cars, Inc. v. Pelkey. To federalism aficionados, however, the opinion illustrates the threadbare quality of the textualist ritual when applied to so-called express preemption cases. The problem is that, for the vast majority of "express" preemption clauses, text does no substantial work: The meaning of the preemption clause generally resides in an opaque prepositional phrase -- "with respect to," "relating to," "based on, "of," etc. -- connecting a noun denoting some category of state law with some noun denoting some category of federally protected activities. Being semantically vacuous, these prepositional phrases cannot really resolve the question of whether a federal statute spares or squashes a state law. Having a textualist axe to grind, however, the Court must pretend to scrape some meaning out of this empty bowl before one goes on to the real business of discerning the unwritten statutory purpose. The result is exegetical hand-waving that distracts the Court from devoting serious attention to the unwritten theory of national interests that is doing the real work in the decision.
Dan's City Used Cars provides a simultaneously entertaining and disheartening illustration of the futility of this semantic exercise.
Continue reading "The inevitably phoney textualism of "express" preemption doctrine"
Posted by Rick Hills on May 14, 2013 at 03:30 AM | Permalink | Comments (0) | TrackBack (0)
Monday, May 13, 2013
Source bleg
I am looking for a source to support following proposition:
A prohibition on some conduct is justified, even if the prohibited conduct and harm does not arise that often, so long as having the prohibition does not impose new/additional costs that exceed any benefits.
Does anyone have suggestions?
Posted by Howard Wasserman on May 13, 2013 at 04:27 PM in Howard Wasserman | Permalink | Comments (4) | TrackBack (0)
Mike Wallace interviews Justice Douglas on free expression (1958)
If, like me, you need excuses throughout the day to take short breaks from grading, this video -- an interview by Mike Wallace of Justice Douglas (about expression, speech, censorship, and "our freedoms" more generally) from May of 1958 -- is an intriguing watch. It was basically about his The Right of the People.Posted by Rick Garnett on May 13, 2013 at 02:56 PM in First Amendment, Rick Garnett | Permalink | Comments (1) | TrackBack (0)
McGeveran on Continuous Assessment
At CoOp, William McGeveran had a post last week on continuous assessment, rather than the traditional hundred percent final, in law school. It didn't receive much by way of reaction or commentary. Given a recent discussion here, perhaps that's for the best, because McGeveran, with candor but not indifference, notes some glitches in shifting from one approach to the other. (He's not alone in this. This is my second year of giving a midterm in con law and my first year of making it graded, and I'm still working out the kinks. My other courses already feature different kinds of continuous assessment.) But I think he's doing the right thing and that the pedagogical justifications for a single, all-in final are very, very poor. I hope more people will read and comment on his post. I will add that, as McGeveran notes, law schools themselves often structure their calendar and operations in a way that makes it difficult to move to continuous assessment, and that this is something law schools ought to act on.Posted by Paul Horwitz on May 13, 2013 at 11:24 AM | Permalink | Comments (1) | TrackBack (0)
Honoring Judge Jane Roth
Last Friday, the Third Circuit unveiled a portrait of Judge Jane R. Roth, which also doubled as a clerk reunion (which I, unfortunately, missed on account of travel SNAFUs at Miami's airport Friday morning). Judge Roth was appointed to the District of Delaware in 1985, elevated to the Third Circuit in 1991, and took Senior status in 2006. I clerked for her in 2000-01.
In the exchange of emails that lead up to the event, I was struck by the number of former clerks who went into teaching--by my count (and I apologize if I missed anyone--I am going by "edu" email addresses), there are 13 law professors (including GuestPrawfs Chad Oldfather and Miriam Baer), one anthropology professor who teaches in both a law school and Anthro department, and one professor of medicine. Judge Roth has had 78 total clerks (including the three clerking for her right now), so that means 75 former clerks, 15 of whom (20 %) went into teaching. This struck me as a lot, although I could be wrong. Judge Roth was never a full-time academic, so she is not necessarily a judge whom a clerk with clear academic aspirations would target (beyond being incredibly smart and a great judge). We talk a lot about feeder judges to SCOTUS; it would be interesting to identify feeder judges to the academy, particularly by separating out those judges whose clerks go on to teach without stopping off at SCOTUS (so we are not conflating SCOTUS feeders with academy feeders).
The run-up to the ceremony also reminded me that my fascination with the jurisdiction/merits divide was, if not born, certainly nurtured during this clerkship. One of my favorite cases of that tern was Powell v. Ridge, which arose out of a lawsuit alleging that the state system for funding education violated Title VI. Several state legislators intervened as defendants, then asserted legislative immunity from having to respond to discovery; when the district court denied immunity, the legislators sought to immediately appeal under the collateral order doctrine. The majority held there was no appellate jurisdiction because the immunity the legislators were asserting did not exist. Judge Roth concurred in the judgment, agreeing that the asserted immunity did not exist, but insisting (sound familiar?) that this went not to the court's appellate jurisdiction, but to the substance of the asserted defense. Instead, she argued, we had appellate jurisdiction because the asserted immunity was "legislative" (which is immediately appealable under the C/O/D), but the district court was right to reject the immunity.
Update: I received an email from one of Judge Roth's 2024-15 clerks, who hopes to go into academia. He said his teaching aspirations came up during his interview with the judge and she talked about the number of clerks who have gone into teaching. So she is aware of the trend and uses it as a selling point for the clerkship.Posted by Howard Wasserman on May 13, 2013 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (3) | TrackBack (0)
Sunstein on Albert Hirschman
In the new New York Review of Books, Cass Sunstein has a very enjoyable essay on Albert Hirschman, jumping off of a recent biography. Hirschman's classic book Exit, Voice and Loyalty is well known to legal scholars, with some 870 cites in the Westlaw legal periodical database (including a good new piece by Heather Gerken in the Duke Law Journal). Indeed, I assume many of the authors who cite it have actually read the book! But Sunstein usefully shines a spotlight on other major works by Hirschman, which seem like natural reads for legal scholars but have gotten less attention from them. (In particular, Shifting Involvements, which has 54 cites, and The Rhetoric of Reaction, "a study of the reactionary’s tool kit, identifying the standard objections to any and all proposals for reform," a subject of central concern to much reform-oriented legal scholarship, which has only 84 cites.)
I found the following passage from Sunstein's celebratory essay especially valuable:
Hirschman was a great believer in doubt—he never doubted it—and he certainly doubted his own convictions. At a conference designed to celebrate the thirtieth anniversary of his first book, who else would take the opportunity to show that one of his own central arguments was wrong? Who else would publish an essay in The American Economic Review exploring the “overproduction of opinionated opinion,” questioning the value of having strong opinions, and emphasizing the importance of doubting one’s opinions and even one’s tastes? . . . [Hirschman suggested] that doubt could be a source not of paralysis and death but of creativity and self-renewal. One of his last books, published when he was about eighty, is called A Propensity to Self-Subversion. In the title essay, Hirschman celebrates skepticism about his own theories and ideas, and he captures not only the insight but also the pleasure, even the joy, that can come from learning that one had it wrong.
This sounds, alas, like the exact opposite of the behavior and incentives of junior legal scholars (and too many senior scholars) today, as well as the law review editors to whom they often cater. I've complained here before about the apparent rise of excessive novelty claims in recent legal scholarship, including articles published in many leading law reviews, which in turn will only encourage that trend. Too many articles today claim, on dubious grounds, to be the "first" or "only" paper to consider some issue or make some argument. Combine that with the frequency of "unified theory" approaches in legal scholarship and the general overconfidence that prevails in the field, and you get a lot of hubris. Some of this is surely strategic; I've heard privately from various scholars who acknowledge that their articles and abstracts overclaim but swear they'll cut out those claims by the time the article has been accepted and moved into the editing process, a move I find questionable as an ethical matter and one they don't always follow through on anyway. But much of the hubris is genuine, and even when it's not it's still there in the articles and may leach into the writer's thinking.
It's possible that this is just a particular phase in the life-cycle of these scholars, just a function of brash youth and careerism, and that they will think better of it when they get older and wiser. Having built their careers on an insistence that they have offered a "new" and/or general theory, however, I fear that these scholars will only get older, not wiser, and that they will be boxed in by their earlier claims and by the trend in legal scholarship that they helped to encourage and benefited from. How many of them will come back to the work that launched them and consider whether it was wrong? If they do, will those sober second thoughts be prominently published, or noticed at all?
As a personal note, I should add that I have been guilty too, not so much of overclaiming as of providing sweeping general theories and approaches. And yet, the most fun I've had in my work recently has been on two pieces. One gives a more positive assessment to the use of equality in law and religion doctrine, about which I've been skeptical before. The other is a clinical and critical examination of "freedom of the church," of which I've written quite positively in several articles. Any idea worth championing is surely worth going back and reconsidering critically. Indeed, I would think a serious scholar has a positive obligation to reconsider and sometimes disclaim his own past work. I worry that the pace, structure, and incentives of legal scholarship don't much encourage this. Perhaps Ross Davies could start yet another legal journal, this one called "The Journal of Law and Second Thoughts."
Posted by Paul Horwitz on May 13, 2013 at 08:42 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack (0)
The Tragedy of Religious Freedom: Available Now
I'm pleased to announce that my new book, The Tragedy of Religious Freedom, is now available for
purchase from Amazon (official publication date is June 1). Here is Harvard University Press's page for it. The book is specifically about the First Amendment religion clauses but it also involves more general questions about the relationship of legal theory and legal practice, and the tasks that legal scholars set for themselves. I hope that it will appeal to folks interested in those rangier questions as well as to readers with particular interests in religious freedom and conflicts among civil rights.
Here are the blurbs on the jacket:
“The Tragedy of Religious Freedom is a first-rate contribution to the law-and-religion conversation. This conversation—how to think about, and how to effectively protect in law, religious freedom in a constitutional democracy—is a lively and timely one, and DeGirolami is an impressive participant.”—Richard W. Garnett, Notre Dame Law School
“A sophisticated and thoughtful book, which offers fresh insights on a central question of religious liberty.”—Philip Hamburger, author of Separation of Church and State
Posted by Marc DeGirolami on May 13, 2013 at 08:00 AM | Permalink | Comments (4) | TrackBack (0)
Sunday, May 12, 2013
Marty Redish and A Jurisdictional Perspective on New York Times
The latest issue of the Northwestern Law Review contains the Martin H. Redish Festshcrift, a symposium celebrating Marty's 40 years on the Northwestern faculty and 40 years of influential scholaship in Civ Pro, Fed Courts, and First Amendment. The live symposium last March featured top scholars in all three areas, as well as a panel of Marty's former students who have gone (or are thinking about going) into law teaching.
My contribution, A Jurisdictional Perspective on New York Times v. Sullivan, explores the subject-matter jurisdiction controversies that affected how New York Times was litigated and, in a sense, how it was decided. I am glad I finally got to write this piece, both as a fitting tribute to Marty and in anticipation of Sullivan's 50th anniversary next year.
Here is the abstract:
New York Times v. Sullivan, arguably the Supreme Court’s most significant First Amendment decision, marks its fiftieth anniversary next year. Often overlooked in discussions of the case’s impact on the freedom of speech and freedom of the press is that it arose from a complex puzzle of constitutional, statutory, and judge-made jurisdictional and procedural rules. These kept the case in hostile Alabama state courts for four years and a half-million-dollar judgment before the Times and its civil-rights-leader co-defendants finally could avail themselves of the structural protections of federal court and Article III judges. The case’s outcome and the particular First Amendment rules it established are a product of this jurisdictional and procedural background.
Martin H. Redish has produced a lengthy record of influential and cutting-edge scholarship on civil procedure, federal jurisdiction, and the First Amendment, and has been a sharp and unforgiving critic of many of the jurisdictional rules that kept the case out of federal court for so long. It is appropriate to recognize Redish’s scholarly legacy by examining this landmark case, which sits at the intersection of his three scholarly pursuits and demonstrates why many of his arguments and criticisms are precisely correct.
Posted by Howard Wasserman on May 12, 2013 at 09:42 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0) | TrackBack (0)
A Mother's Day Essay In Praise of Pioneers
Most strongly held views of parenthood make heroically unrealistic assumptions about what parents ought to know about parenting. This obligation for omniscience spans familiar divisions among parenting reformers. Regardless of whether they favor Tiger Moms or children’s self-esteem, parenting advocates today agree that parents know – or ought to know – how their parenting decisions will affect their kids. Parenting handbooks abound, each promoting diametrically opposed views of what parents must do to assure their child’s well-being. As Ann Hulbert has argued in Raising America: Experts, Parents, and a Century of Advice About Children, however, these books’ popularity has always been rooted more in current political and cultural fashions than in any rigorous data or method. Pick a book, any book -- Chua or Spock or Rousseau or Ferber – and you can rest assured that your choice will not contradict – or be confirmed by - any solid social science. Your book instead will likely reflect what you and your social set would have done anyway. To paraphrase Marx, the parenting handbooks are pure super-structure, one's personal untheorized prejudices, base. Parenting theories are just comforting nightlights to reassure new parents who do not like facing up to the reality that raising a kid is a shot in the dark.
Keeping in mind our fundamental ignorance about what makes kids do well, I would like, on this Mother’s Day, to celebrate parenting pioneers who had no such comforting illusions to cling to. In particular – naturally – I want to praise my own Mom, and other working moms from her generation.
My parents had their first child in 1961 and their last in 1970 – a decade in which social norms about women’s roles in the workplace were just beginning to shift. They did not have any movement to join or role models to follow on Twitter. In particular, if you were a smart, public-spirited, and hard-working young female lawyer in 1960 who wanted to make a difference in the public sphere, there was no comforting nightlight, no camp to which you could attach yourself to delude yourself with the false hope that you knew what you were doing. Nowadays the lines are well-defined, the factions each have their battle cries that have gone viral – demands that one get tigerish or instead get in that Park Slope helicopter and hover, forego having it all or instead lean in. Back in the early 1960s, there was pretty much just Dr. Spock inducing female guilt in a "Mad Men" world.
Only after the last of our two daughters departed for college this Fall could I sit back and reflect on what a daring and scary decision it must have been for Mom to undertake to raise four children while pursuing a demanding legal and governmental career. Maria and I counted as a working couple – but working as two professors was nothing compared to the work that my parents undertook.
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Posted by Rick Hills on May 12, 2013 at 11:42 AM | Permalink | Comments (0) | TrackBack (0)
