Sunday, May 31, 2009
Thanks to Dan and Prawfsblawg for inviting me to blog. I enjoyed blogging (albeit not as frequently as I had hoped I would) and look forward to seeing many of you at various conferences, symposia and workshops.
"An artificial perfection of reason": Intimations from Hamburger
I have been making my way through Philip Hamburger's truly magnificent book, Law and Judicial Duty. There is a great deal in this book in the way of assiduously researched detail -- but many of the delicate ornaments and historical baubles are placed in the service of several broad themes; the sweep and significance of the book is very much more than the sum of its details, and it has much to say about the way in which we think about the role of the judge and the institution of "judicial review." In my final post, I want to consider only one of these themes -- artifice, artificiality, and their relationship to law.
The ideal of judicial duty is very much, in Hamburger's telling, the product of the common lawyer's self-conscious effort -- perhaps strategy is even the right word -- to clothe the law in ritual and form. Thus, in at least partial reaction to Cicero's naturalist aphorism, lex est ratio summa, insita in natura, Coke offered that the common law is "an artificial perfection of reason, gotten by long study, observation, and experience, and not by every mans naturall reason." (129).
The very notion of "artificial perfection" may strike modern ears as rather dissonant. Artifice, to say nothing of artificiality, tends to elicit negative responses. What could be less honest, less sincere, less natural -- in a word, less real -- than artificiality? Artifice is what is employed when -- because -- perfection is unattainable.
Hamburger takes the part of Coke here. Of the academic challenge to the common law -- the challenge of the "learned law" (the "scholarly enterprise that encompassed both the civil and the canon law" (103)), and the response of common lawyers to it, Hamburger writes:
The academic ideals have resurfaced in different times in different ways . . . but they have consistently tended to rest on a potent combination of 'realism' and idealism -- on a dismissive realism about the law of the land and the capacity of judges to decide in accord with it and on a high idealism about rational academic models of human law. (611-612).
Hamburger unites the strains of artifice in the common law with those of a formalistic approach to law. It is the artifice and artificiality of the common lawyer's way of approaching the law -- its non-realism and non-naturalism, its quirks, habits, dispositions, and ornamented ways -- that is the distinguishing feature of the common law. This view of law is inherently defensive, pessimistic about law's (and man's) capacity to reach the heights of the academic ideal. It recoils from the elimination of mystery and mystique in law in favor of its all too natural, and all too accessible, rationalization. The common law relies on manner, custom, and artifice to sustain itself in the face of the academic challenge. It keeps always in view a very different understanding of realism, "not an academic skepticism about the law of the land, but a deeper realism about the inadequate intellect and disposition of men." (612).
One of the features of the idea of public (legal) reason that I've always most admired is its aspiration to a self-imposed restraint. Leave aside for a moment that this type of restraint aims ambitiously (though it disclaims ambition) to achieve commonality or an overlapping consensus in the face of the problem of pluralism -- I am much less interested in that than I am in the very notion that restraint is itself a good thing. Restraint implies discipline, a distaste for "letting it all hang out" or "doing what comes naturally." Restraint -- no less in personal deportment than in an institutional setting -- connotes a formal, buttoned-down approach to life and law, one that is always conscious of the niceties and manners of social and professional conduct. And restraint in the law is likewise artifice in the law --a layered, complicated, formal, and baroque approach.
The supporters of this view of law seemingly grow fewer in number by the generation, as we have moved from questioning the artificial ideal to ridiculing it in favor of a realism whose pantagruelian hunger gorges on everything in sight -- gluttonous and, so, entirely unrestrained. Yet the conflict between the real and the artificial in law seems to be a perennial one -- one of those fights where neither side ever claims complete victory.
Does EFCA's Defeat Show the Death of Organized Labor as a Political Force?
While the bloggers here and elsewhere (including myself) are focused on the entertaining but practically irrelevant issue of Sotomayor’s nomination, the really big legal news has been largely ignored by law prawfs. Last week, the Employee Free Choice Act of 2009 (better known as the “card check” legislation) was pronounced dead. Labor could not rally enough Democrats and moderate Republicans to win cloture in the Senate. In particular, Arlen Spector and southern Democrats with lots of non-union businesses like Wal-Mart apparently refused to budge on the bill.
This is extraordinary news, given that EFCA was Labor’s most urgent agenda item. That Labor could not swing the Senate to cloture with an overwhelmingly popular Democratic President and a dilapidated Republican Party speaks volumes for – well, what? The spectacularly unresponsive procedures of the Senate? Or the remarkably marginal influence of labor in the modern American politics? Or both? As I have noted in an earlier post, I am genuinely ambivalent – indeed, schizophrenic -- about EFCA. Fostering a perhaps sentimental Arendtian attachment to participatory democracy, I like the idea of reviving workplace democracy from the clutches of employer coercion. I am not sure, however, that genuinely non-coercive democracy is possible in the economic sphere: There is a non-frivolous argument that the “card check” would substitute one form of (union) coercion for another (management) version.
But, regardless of what one thinks of EFCA, it is simply astounding news – far more significant than anything Sotomayor-esque -- that this Congress and President could not get Labor’s biggest agenda item through the Senate. If not now, when? After this labor debacle, I’d say the answer, for better or worse, is “never.” One is left with the sense that Labor remains politically moribund. But maybe there is a different story?
Some belated thoughts on Iqbal, empathy, and Sotomayor
Fittingly for what is probably my last post on Prawfs for a while, I thought I'd tie together some of the threads that have been running through Prawfsblawg this month, specifically those pertaining to "empathy," the nomination of Sonia Sotomayor to the Supreme Court, and the Court's recent decision in Ashcroft v. Iqbal. I have finally gotten around to reading Iqbal (it's been a busy couple of weeks), and it occurs to me that a pleading standard that demands "plausibility" in a complaint is precisely the sort of case in which, in Marc Blitz's and Orin Kerr's words, empathy is "doctrinally relevant." It seems to me that plausibility as a legal standard -- though it surely makes appearances elsewhere in the law -- inherently calls on the judge to make judgments based on life experiences. Indeed, Justice Kennedy says as much in Iqbal. And you can almost read between the lines to hear him saying, "I have never been a victim of discrimination, and I certainly cannot imagine folks like John Ashcroft and Robert Mueller, folks just like me, engaging in illegal discrimination against Muslims in the wake of 9/11...." A case like Iqbal is the sort of case where a judge like Sotomayor just might view things very differently from Justice Kennedy, Roberts, or the others in the majority, whether we want to attribute that to life experiences due to minority status (see this article from today's NYT) or to some quality of empathy that is perhaps more likely to correlate with minority status, underprivileged upbringing, and the like.
Takaki on "Revolutionary" Thinking
Since a good deal of attention on Judge Sotomayor has focused on her youthful and subsequent interest in "identity politics," and since some scorn has been cast on her helping to start a course at Princeton on the history and politics of Puerto RIco -- scorn that probably finds its reductio ad absurdam in the blog comments linked to here -- I thought it might be worthwhile to quote from a slightly different take on the nature of courses arising from identity politics. It comes from an obituary of Ronald Takaki, who established a doctoral program on ethnicity at UC-Berkeley. Here's the quote:
At U.C.L.A., Mr. Takaki taught the university’s first black-history course, created in response to the Watts riots. When a student asked what revolutionary tools he would be teaching, Mr. Takaki said: “We’re going to strengthen our critical thinking and our writing skills. These can be revolutionary tools if we make them so.”
Giving students feedback on exams
I am halfway through my grading this term, and, as usual, I feel a certain level of guilt at the inadequacy of the feedback that we typically give to our students on their exams. If the only function of the exams is to help legal employers with their hiring decisions, then, of course, feedback is not terribly important. In my more naive moments, however, I imagine that exam-taking could be more than a painful sorting system. Instead, I imagine that it could be a continuation of the teaching process -- a sort of very intense final class -- in which students and prawfs could think about how the material fits together and have a class discussion about the problem.
For exams to serve that function, however, there has to be a feedback mechanism. Ideally, I'd like to have a "post mortem" class in which the students and I would all meet to go over the exam together. Instead, I write up and distribute a "model answer" with marginalia explaining how the arguments in the answer translate (roughly) into points. I also use old exams as hypothetical problems when teaching the course, so that the gap between preparing for the final and preparing for class can be minimized. I've attached my exam question (Download Hills Spring 2009 ARS Exam (Part 1)) and model answer (Download Model answer (with comments)) from this term's course in Administrative & Regulatory State, a mandatory first-year class here at NYU, to give you an idea of my feedback system. (Feel free to crib from the exam question, by the way, if you like it, keeping in mind that both question and model answer are now in the public domain and accessible by your own students).
It is not a very satisfactory system. Few students come by my office to discuss the exam, and I never know whether my model answer makes much sense or just adds to everyone's confusion. So I am curious whether other prawfs have discovered a better, or at least different, way of integrating the exam/evaluation system into the teaching of the course.
Saturday, May 30, 2009
Update: Prawfs-Co-Op Happy Hour, May 30th, 9pm, Marlowe's Denver.
For those of you planning on attending the LSA meeting in Denver at the end of the month, please mark your calendars for Saturday May 30th at 9pm. The festivities will begin shortly after the end of the LSA reception at the University of Denver, and they will continue into the night.
The gathering will be at Marlowe's, upstairs in the Mezzanine. Marlowe's is about a a block away from the Hyatt hotel in downtown Denver at the 16th Street Mall and Glenarm Place. There's a map you can use to navigate. Feel free to call them at 303.595.3700. Lucky for us, we will also have the Happy Hour Drinks Specials. Please spread the word: all are invited.
Friday, May 29, 2009
New info on Lex Opus; an alternative to Expresso?
LexOpus (https://lexopus.wlu.edu) is a recently launched service at Washington and Lee Law School offering free online submissions to law journals. The service has two facets: 1) An author can make an article available to all interested law journals, inviting journals to make offers. Journals are able to limit by subject matter the articles that they see as open to offers. 2) An author can make offers to law journals in an author-specified journal list, LexOpus making on behalf of the author a short-term exclusive offer to each law journal in sequence. For non-peer-reviewed journals 'short term' is one week. Author offers continue past each journal's exclusive period, on a non-exclusive basis, until rejected by the journal or withdrawn by the author, but any journal with an exclusive period always has acceptance priority. An author can make a work 'open to offers' as well as submit to specific journals, or can do one or the other. As the system does permit uploading of revisions, authors might make working papers open to offers and then, if no acceptable offers have been received, when the finished work is available submit that version to specific law journals. Works can be suppressed from public view if the author so desires. Questions can be directed to: John Doyle Washington and Lee Law School Lexington, VA 24450
Urgent Sponsored Announcement from University of TuslaTHE UNIVERSITY OF TULSA COLLEGE OF LAW is urgently seeking a visitor to teach Environmental Law in either Fall 2009 or Spring 2010. The College of Law is particularly interested in talking to candidates who are also willing to teach International Environmental Law, European Union Law, International Law, Antitrust, Banking, Corporate finance, Securities or other business related courses. Candidates interested in teaching Environmental Law along with some other course not listed should also apply as there is some flexibility with respect to course offerings. The visit may be for one semester or for the full academic year. Salaries are negotiable depending upon length of appointment and qualifications. Candidates must possess a J.D. degree from an accredited law school. We seek candidates with superior academic records from highly-regarded J.D. and/or graduate law programs who have a proven record of excellence in teaching and scholarship or have, through their professional and academic performance demonstrated superior potential to excel as teachers and scholars. The University of Tulsa is an equal opportunity/affirmative action employer committed to diversifying its faculty and staff. Members of under-represented groups (including people of color, people with disabilities, women and veterans) are strongly encouraged to apply. Please submit (1) letters of interest indicating qualifications and other teaching interests, (2( a current curriculum vitae, and (3) letter of recommendation to Assoc. Professor Tamara Piety, Chair, Appointments Committee, University of Tulsa College of Law, 3120 E. Fourth Place., Tulsa, OK 74104, or by email to [email protected]
Empathy for Schoolmasters, Bong Hits 4 Jesus, and Lawyers for Change
There’ve been some interesting observations in the legal editorial pages and blogosphere lately about what role empathy does – and should – play in judicial reasoning. There’s a short debate about it in the LA Times between Ilya Somin and Erwin Chemerinsky, and some interesting posts on the subject from Orin Kerr and Ilya Somin at The Volokh Conspiracy, and from Mark Graber and Susan Bandes at Balkinization (and I’m sure many others I haven’t read). But as far as I can tell no one’s yet mentioned the First Amendment decisions in the “Bong Hits 4 Jesus” case (aka Morse v. Frederick) and in Legal Services Corporation v. Velazquez, which I think help shed some interesting light on the question (even if they’re not the only potential sources of such light).
As Orin Kerr rightly points out, there’s an important distinction to be drawn between empathy which is “doctrinally-relevant” and that which is “doctrinally-irrelevant.” He presents a clear-cut example of the former: “if a state has a rule that a person sentenced to death cannot be put to death using a method of execution that is ‘very painful’” then judges will find it hard to apply that rule without drawing upon their capacity for empathy. Even if they’ve never been on death row awaiting execution – and I’m guessing the closest many Supreme Court Justices have come to that situation is the time when they’re waiting for a skeptical Senate to decide whether to confirm their nomination – they have to find some way to imagine what would be “very painful” for someone in the prisoner’s position. One can also imagine situations where empathy would be completely unnecessary, such as determining whether a particular person is old enough to be a Senator, Representative, or President.
I’d add that for empathy to be a legitimate part of judicial-reasoning, its doctrinal relevance should not only be present in the case, but als the source of the judge’s motivation for drawing upon empathy. Imagine, for example, a situation where a judge shifts his or her favored methods of judicial interpretation in order to get the best result for a favored party or interest group. In other words, an empathic judge might be a textualist when it favors the little guy, and then – to help out the next suffering petitioner – switch to focusing on statutory purpose or legislative history. Empathy might plausibly be said to be doctrinally-relevant in both the first and second cases, but I think something is likely going wrong if a judge is changing judicial philosophies or switching interpretative frameworks simply to get a result that is more emotionally-satisfying for him because it helps a disadvantaged litigant. The same would be true of a a judge who switches interpretative methods to help a certain industry, or big business more generally, because he or she has been a businessperson before (or had lots of clients who were) and finds it easier to identify with their concerns.
I suspect that there are subtle variants of this framework shifting that might sometimes take work and self-reflection to avoid. Imagine, for example, that a Supreme Court Justice is applying the factors set out in Planned Parenthood v. Casey to determine whether they should vote to overrule an existing Supreme Court precedent. It’s quite possible (I’d guess) that varying degrees of empathy with different parties might affect judges’ determinations about when a certain “reliance” interest is or isn’t strong enough to weigh in favor of retaining that precedent, or whether a certain precedent is or isn’t “workable” in the real world – and that judges would thus have to ask tough questions of themselves (and each other) about the legitimacy for deeming a certain reliance or workability concern stronger or weaker than another.
What the Bong Hits 4 Jesus and Velazquez cases highlight, I think, is that it will often be very hard – particularly in Supreme Court cases – to find empathy “doctrinally-irrelevant” and that, for this reason, empathy will often play some role, and present some danger in Supreme Court decision-making. Take the Bong Hits 4 Jesus case, Morse v. Frederick. . As most readers of this blog probably know already, that was the case where the Supreme Court held that a school principle did not violate the First Amendment in punishing a student for displaying a huge “Bong Hits 4 Jesus” banner at a gathering near the school to view and cheer a portion of the Olympic Torch Relay in 2002 Unlike the hypo Orin Kerr offers, where a statutory rule practically requires judges to imagine the perspective of a prisoner in order to decide if an execution method is “very painful,” none of language in the court-crafted rules at issue in Morse clearly required the Court to place themselves in the shoes of school officials or students. The Tinker case required them to judge whether a certain student’s speech would cause a “substantial disruption of or material interference with school activities,” Hazelwood to decide if a certain speech was an example of a “school-sponsored publication, theatrical production, and other expressive activit[y] that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school,” and if so, whether the school’s restriction was “reasonably related to legitimate pedagogical concerns,” and Fraser to ask whether the school’s speech restriction was part of its exercise of its “highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse” (or perhaps some other school function that is equally appropriate?).
One might argue that judges could have made each of these inquiries entirely from where they sit (as judges) instead of by imaginatively placing themselves in the position of a school official or student. But that’s not what they did. Rather, there were plenty of attempts on the part of the Justices to imagine how it would be if they were principals or teachers confronting different kinds of student speech under different possible rules. Justice Roberts observed in the plurality opinion that “principals have a difficult job,” and that the principal in that case “had to decide to act – or not act – on the spot.” In the oral argument, Justice Breyer expressed similar concerns about what it was reasonable to demand of a school principal forced to make quick, on-the-spot decisions about what speech about drugs constitute a threat, and what didn’t: “He doesn’t know the law, the principal. His job is to run the school. And so I guess what I’m worried about is . . . we’ll suddenly see people testing limits all over the place in high schools . . . I want some help here and I’m worried about the principal.” Justice Kennedy noted that a decision in favor of the students’ damages suit would hurt “this principal who has devoted her life to the school.” And Justice Roberts added that such a decision in favor of damages might leave “principals and teachers around the country hav[ing] to fear that they’re going to have to pay out of their own personal pocket whenever they take actions pursuant to established board policies that they think are necessary to promote the school’s educational mission.”
Part of this questioning was made in the context of the argument over whether the principal had qualified immunity, when the Justices were asking the party’s lawyers about whether the relevant law could have been clear enough to someone in the prinicipal’s situation to justify removing such immunity. But empathy was clearly playing a more larger role here: It was contributing to a decision not merely about whether the principal’s judgment was reasonable at the time, but whether an equivalent decision made by another principal (taken after the Morse) decision should or shouldn’t be considered reasonable under the First Amendment going forward. And empathy was playing such a role, I think, because even though there’s no clear verbal command in the First Amendment’s language requiring the Justice to determine someone else’s feelings in a certain circumstance (as a hypothetical statute does when it requires judges to determine if a certain experience is “very painful”) , it’s very difficult for them to understand how a First Amendment regime will work in a school, and the day-to-day consequences it will have, except by imagining how it will look and feel from the vantage point of principals, teachers, students, and their parents.
All of this is consistent with Orin Kerr’s statement that empathy is often indispensable when judges “to try to assess the real-world impact of a particular practice on a person or group of people.” But I also think that, although I haven’t done any kind of survey or case count, that it’s likely to be true of a large percentage of the Supreme Court’s high-profile cases. Justices (and judges elsewhere, for that matter) will often have to get a sense of how the world looks from some party’s perspective in Fourth Amendment search cases, for example, when deciding whether someone had a reasonable expectation of privacy in a certain environment, or in deciding just how significant an intrusion into privacy takes place in a particular warrantless search regime (like a random school or employment drug testing regime). They may likewise have to do so when balancing individual and government interests,, and assessing the risk of existing procedures, and value of additional procedures, in applying the Mathews v. Eldridge test to determine if a person has received the process that is due to her.
Morse v. Frederick also highlights something else about empathy. While having a diversity of backgrounds and life experiences on a court may well make a positive difference in this regard, there’s no way such diversity can possibly provide for all the perspective-taking that happens (and is arguably indispensable) in judicial decision-making. I don’t believe any of the Justices were high school principals before they had their current job. None of them, as noted earlier, were sitting on death row awaiting execution. And none of them, of course, are non-lawyers. So all of them might have to go far beyond their own experience to show doctrinally-relevant empathy no matter how diverse the court is.
And no matter how much capacity for empathy judges bring to the Court, it will probably take a good deal of self-questioning on their part to avoid the dangers of using it selectively and unfairly. As Susan Bandes points out at Balkinization, “despite our best intentions, [empathy] is always selective and riddled with blind spots. We can try to correct for this partiality if we are self-aware. But those who study cognitive psychology and decision-making find that we aren’t all that good at identifying and critiquing our own background assumptions.” Justice Scalia, I think, suspected that precisely this kind of selective empathy was at play in the Court’s decision in Legal Services Corporation v. Velazquez. That case held that First Amendment prohibited Congress from telling Legal Service Corporation what kind of legal arguments lawyers could make with legislative funding for welfare-related legal work. (Congress had told LSC the funds could not be given to any organization challenging existing welfare laws). But it came only a few years after the Court’s decision in Rust v. Sullivan, which permitted Congress and government administrators to impose very similar speech limits on doctors receiving certain federal funds for planning services – limits that barred them from “counseling, referral, and the provision of information regarding abortion as a method of family planning.” Scalia protested that Velazquez was in fact indistinguishable from Rust and guessed that the Court had reached a different result only because the case involved the “work of lawyers” rather than that of doctors and the Court was “display[ing] an improper special solicitude for our own profession.” I’m not sure that’s the right explanation for why Velazquez came out the way it did. But it probably is true that, after decades in the legal profession, it will sometimes take some efforts on the part of judges not to display “an improper special solicitude for [their] own profession.” Some, like Erwin Chemerinsky, have also worried that there are other systematic biases in the way empathy works on the Court. He writes in his LA Times debate with Ilya Somin that “today’s Supreme Court justices apparently feel it more for businesses than employees, and more for victims of crimes than criminal defendants.”
One way of addressing this problem, perhaps, is the one Ilya Somin proposes: that judges determine mental states rather than identify with those mental states. That kind of move sometimes makes a good deal of sense, but it won’t always suffice for the judge’s task. For example, I think it would have been hard for judges trying to get a sense of the challenge facing a school principal to understand that challenge by relying on a purely external indicia of the principal’s feeling state. They needed, and sought to obtain, an internal understanding of the principal’s experience: a sense of how the world looked (and would look) from a principal’s own vantage point. This isn’t to say that their identification with the principal’s visions in Morse, for example, should have led them to ultimately come down on her side. Other legal considerations may trump whatever concerns they have about the difficulties that would face principals in a certain First Amendment regime, including perhaps concerns about what kind of an environment public schools will be for students if the Court adopts a First Amendment regime that is overly generous to certain teachers and principals. Moreover, the result of judges’ placing themselves in another party’s shoes may sometimes cut against that party’s legal position. If, for example, such an imaginative exercise tells them that a certain First Amendment regime **would not** be as burdensome as a party is claiming it is, that may hurt rather than help the case of the party in whose place they are imagining themselves.
Nor is it by itself a corrective to unfairly one-sided exercises empathy for a President to appoint Supreme Court Justices who are unfair and one-sided in a different direction: I doubt individuals will feel much better about a constitutional law decision they perceive as unfair just because there are dissenting justices who are partial towards them instead of towards the winner. The hope must instead be that having judges with very different perspectives and backgrounds will make it likely that all judges will hear questions and arguments they otherwise wouldn’t have heard, and that this will make judges better able to draw upon the right kind of empathy when they need it, and better able to detect and stop themselves from finding themselves emotionally-pulled toward one side of the dispute, when the situations demands more even-handed exercise of empathy (or putting it aside altogether in favor of other sources of legal decision-making).
Is "Business Litigation" a "Background in Business Law?"
Note: The initial version of this post mistakenly attributed the post I discuss below to Brian Tamanaha rather than to Bernard Harcourt. My apologies! I've revised it accordingly.
Anent the Sotomayor nomination, natch, Bernard Harcourt has an interesting and impassioned post at Balkinization taking David Frum to task for arguing that Sotomayor has only an "abstract and academic" experience of business law. Frum describes Sotomayor (and other Justices) as having a background only in "academia and government," and laments this as the general state of the current Supreme Court's experience. Harcourt points out that Sotomayor spent eight years as a business litigator. Frum's response to this, apparently, was that "
Atul Gawande has a terrific piece in this week's New Yorker about medical costs. Gawande travels to McAllen, Texas, which he suggests has some of the highest per-person medical costs in the country. On his analysis, McAllen may have fancier care than one might expect, but it does not have better care, as measured by actual patient outcomes. What explains the high costs? Ultimately, he suggests, has much to do with a lack of collaborative monitoring and cooperation to keep health costs down, and much to do with a lack of restraint on the part of local physicians, who "see their practice primarily as a revenue stream" and so order more tests and more frequent office visits, and perform more surgeries, whether those procedures and visits are conducive of better outcomes or not. Gawande argues that more important than whether we have a single-payer or multiple-payer medical system is whether we have in place networks of collaborative medical professionals who practice "accountable-care" medicine.
Getting Real about "Legal Realism": Sotomayor ain't no "Realist"
There are posts -- the Wall Street Journal and Leiter's blog, for instance -- suggesting that the usual law professor's self-hatred might be clouding the question of how one evaluates SCOTUS opinions. In particular, the notion that Sotomayor is a "legal Realist" because she believes that judges' backgrounds affect their decisions so trivializes actual legal Realism that it is hard for a non-self-hating legal academic like myself to stomach.
Legal Realism is not the jejune observation that judges' psychology matters. Realism is (or was) a specific jurisprudential school maintaining that (1) as a positive matter,legal commands are, to varying degrees, indeterminate and that (2) as a normative matter, the gaps ought to be filled by empirically well-informed and normatively candid and well-reasoned policy-making. It is a piece of goofy anti-intellectualism that even I, a card-carrying anti-intellectual, will not swallow that the insights of the Cohens, Llewellyn, Pound, et al can meaningfully be reduced to the banal bromide that one's ethnicity, character, sympathies, etc, will affect one's decisions. If Judge Sotomayor's endorsement of this obviously true proposition makes her a Realist, then Chief Justice William Howard Taft is equally a "Realist": As Robert Post's superb analysis of Taft's Prohibition Era decisions demonstrates, Taft routinely invoked the "traditional Anglo-Saxon respect for the administration of the law" and denounced the decisions of that "Jew Cardozo" for undermining this respect. (He did not like Brandeis much, either, and for some of the same anti-Semitic reasons).
Believing that people's background affects their decisions isn't Realism: That's is just realism -- and realism so obvious that anyone who questioned the position would not be guilty of Idealism but plain idiocy.
By contrast, a bona fide Legal Realist judge (1) acknowledges that the precedents are ambiguous and (2) makes a valiant effort to fill in the socio-political assumptions that underlie the statute, regulations, or judicial precedents as a way of resolving the case. As an example of Realist interpretation, consider Justice Cardozo's decision in Steward Machine v. Davis, in which he argued that the Social Security Act's provision for unemployment insurance was a device to overcome states' fear of being generous with UI benefits and thereby becoming welfare magnets. Cardozo concluded that the federal statute's taxing states that did not provide a federally approved UI scheme did not, therefore, "coerce" states but rather liberated them from a paralyzing inability to address the Great Depression. Note the signature style of Realism: (1) Candid recognition that the Spending Clause precedents (aka Butler) were a mess; (2) Candid recognition of the policy basis for the federal statute (i.e., to stop "unfair competition" among the states -- a practice that conservatives rather endorsed); and (3) a frankly normative prescription that "federalism" is not advanced if states are paralyzed from redistributing wealth by interstate competition for capital -- a position that, of course, some (Richard Epstein, for instance) would dispute.
Find me a single opinion by Justice Sotomayor that is so candid about the judge's policy-making role created by gaps in precedents or statutes. Find me one opinion in which she is willing to make a controversial policy choice based on a federal statute, acknowledging, as did those arch-Realists, Max Radin and Karl Llewellyn, that the choices really were not in the text. There are lower-court judges who do this Realist thing -- say, Richard Posner or Stephen Reinhardt. But Judge Sotomayor is simply not one of their number. The truth is that Sotomayor is a good, solid grinder. As several commentators like Turley and Adam Liptak have noted, her decisions tend to be connect-the-dots affairs that cleave to whatever caselaw exists -- and, when the caselaw dries up, then she clams up (as in the Ricci decision). She has hitherto exhibited an indifference to social science or to normative philosophizing that any good Realist would regard as excessively cautious or even intellectually dishonest.
Nothing wrong with that cautious and workmanlike approach to judging. (In particular, you'd think that conservatives would be pleased with such a modest and incremental approach). But to call this attitude "Realist" is a bit much. Realism is a sophisticated legal theory, not op-ed pop psychology. We legal academics ought to give ourselves and our predecessors a little more credit.
In the Mail: Looseleaf Casebooks!
In going through a 10-day backlog of mail at the office yesterday, I was psyched to receive binders containing looseleaf copies of two of my casebooks for next year: Dycus et al.'s National Security Law, and the brand-spanking-new sixth edition of Hart & Wechsler's The Federal Courts and the Federal System.
Is it just me, or are looseleaf casebooks the coolest thing since sliced bread?
Hispanic or Not, The Man Could Write
All the recent talk about whether Justice Cardozo was in fact the first Hispanic justice gives me a chance to share what I consider one of the great lines in the U.S. Reports. In 1936 the Court decided two companion cases dealing with equal protection challenges to a New York milk marketing law. In one of the cases, Borden's Farm Products v. Ten Eyck, 297 U.S. 251 (1936), the Court upheld part of the law, on a 5-4 vote with the Four Horsemen dissenting. In the next case, Mayflower Farms v. Ten Eyck, 297 U.S. 266 (1936), Justice Roberts switched sides and the Court struck down the other provision, with Cardozo writing the dissent. Cardozo's dissent begins with this beautifully understated zinger:
"The judgment just announced is irreconcilable in principle with the judgment in Borden's Case, 297 U.S. 251, 56 S.Ct. 453, 80 L.Ed. 669, announced a minute or so earlier."
Whatever label we give to his ethnicity, the man could write a good line.
Final version of How Should Punitive Damages Work? now available
Via the Tarlton Library email at UTexas, I just saw that the final version of my recent piece on punitive damages is now out. It's called How Should Punitive Damages Work?, and it's the second in a projected 4 part series of articles designed to rethink punitive damages policy and doctrine. You can find the most recent and final version of it here. If the piece enrages you with its perverse, futile, or wildly reckless and unconstitutional suggestions, then I think Penn LR will be open to publishing responses through its excellent online companion, Pennumbra. As a former Pennumbra author, I highly recommend it--your piece ends up on Westlaw and you get the talented UPLR students working on it too. The abstract of the piece appears after the jump. The article's predecessor, "Retributive Damages," is available here; and a synopsis of "Retributive Damages" can be found on the new Legal Workshop website, over here.
Greetings from glorious Denver. Today was the first day (at least in earnest) of the Law and Society conference. As I think I mentioned earlier, Alice Ristroph and I used the LSA organizational structure to create a mini crim law conference for about 30 people and 8 panels. The first half of those panels was today and the second half is tomorrow (Friday). On the punishment theory panel today, we had really interesting papers by John Bronsteen (Happiness and Punishment, with co-authors Masur and Buccafusco), Don Braman (Some Realism about Naturalism, with co-authors Dan Kahan and Dave Hoffman; Don's powerpoint presentation was both effective and hilarious--make sure you invite him to your school for this presentation), Mark D. White (In Consideration of Consequentialist Retributivism), and a less interesting and more inchoate set of remarks by me (Bentham on Stilts? On the Bare Relevance of Subjectivity to Retributivism, co-written with Chad Flanders). It was definitely one of the best panels I've been on in the last four years, with a really good synergy and engagement by the panelists with each other and with an outstanding set of questions from a great audience at LSA. Every aspect of it was better than I could have hoped for, and I'm grateful to the other panelists and the audience for their thoughtful remarks and participation.
Thursday, May 28, 2009
The Troubling Implications of Justice Thomas's Dissent in Haywood v. Drown
For various reasons, the Supreme Court's 5-4 decision on Tuesday in Haywood v. Drown -- a case in which I co-authored an amicus brief in support of the Petitioner -- has gone mostly overlooked by the media and the blogosphere (for previous posting on the case, see here). I guess between the Sotomayor nomination, the Prop 8 ruling, and the Supreme Court's overruling of Michigan v. Jackson, we fed courts geeks get left behind...
But before the decision fades into obscurity, I wanted to flag the one thing about it that I found noteworthy -- Part II of Justice Thomas's dissent.
By way of introduction, the issue in Haywood is a classic fed courts problem: Under New York law, the State substitutes itself as the defendant in any damages action against a corrections officer brought in the New York state courts. But because states cannot be defendants to claims under 42 U.S.C. 1983, the New York law has the effect (although not the purpose) of barring a certain subset of 1983 claims from the state courts. The question presented was whether, as such, the New York law in question violates the Supremacy Clause (the New York Court of Appeals said no, albeit in a sharply divided 4-3 ruling).
For the majority, Justice Stevens reversed, concluding that the New York law is not a neutral jurisdictional rule, and therefore violates the antidiscrimination principle set out in the Court's prior precedents (e.g., Testa v. Katt), pursuant to which states may not discriminate against federal question suits. Justice Thomas dissented, and in the only part in which he was joined by the other three dissenters (the Chief Justice and Justices Scalia and Alito), he argued for why he believes New York's statute was "neutral," disagreeing with the majority's application of precedent.
More interesting, though, is Part II of Justice Thomas's dissent (in which he was writing only for himself).
Leaving aside his disagreement over the application of precedent, Justice Thomas apparently takes issue with the Court's entire jurisprudence in the field, arguing that "There is no textual or historical support for the Court’s incorporation of this antidiscrimination principle into the Supremacy Clause." He then proceeds to devote half of his 37-page dissent (to a 12-page majority opinion) to explaining why "The supremacy of federal law . . . is not impugned by a State’s decision to strip its local courts of subject-matter jurisdiction to hear certain federal claims." Put another way, Justice Thomas sees no constitutional problem whatsoever with states deciding for themselves whether -- and with what conditions -- federal question lawsuits can proceed in their courts, even when the same state courts are open to comparable claims under state law.
To me, this is a startling argument. Reasonable people will disagree about whether state courts ever have to hear any class of federal question lawsuits without respect to their jurisdiction over comparable state-law claims, and the Supreme Court has assiduously avoided answering that question. But to suggest that states are free to discriminate against federal question lawsuits under almost any circumstance is to turn the Madisonian Compromise on its head, and to invert the Founders' unquestioned belief that state courts, rather than the lower federal courts, would be the more frequent and reliable adjudicator of federal questions.
I often get in trouble with some of my friends because I find deep principles behind a lot of Justice Thomas's jurisprudence, even when I fundamentally disagree with the assumptions behind those principles. Here, though, I'm not sure what the deep principle is, other than an absolute defense of state autonomy at the expense of the supremacy of federal law... If anything, though, such an absolutist view is actually demeaning to state courts, because it undermines the significant role they were always meant to play in interpreting federal law -- just so long as they came to the federal law neutrally.
What, and Who, is a "Good" Justice?
In a previous post I asked whether brilliance is necessary for a justice, and whether more intelligence = better judging. I intimated that my inclination was that beyond a certain (very high) level of intelligence, I saw no evidence that yet more intelligence led to better judging. Larry Solum and others have taken me to task in a variety of ways (check out the comments and Larry's post at his blog for the roasting).
In order to begin to respond to the questions Larry and others raise, let's begin with this: what makes for a good Supreme Court justice? What are the criteria, and who are the examples?
More on the Olson-Boies Lawsuit: Responses to Comments
I appreciate the responses to my original post on the Olson-Boies lawsuit. I tried to post the following comments in reply but for some reason I got rejected (rejected by my own post -- hah!) Apologies for using the post format as a reply mechanism. But here goes:
1. Sam makes an excellent point when he offers an alternative, or maybe additional, explanation for what might be going on in this case. As I read it, Sam's post raises the issue of lawyers, like Olson and Boies, who do both a lot of cause lawyering and a lot of paid advocacy. In particular, Olson's comments at the press conference suggest that he has adopted his clients' position as his own, going farther, I think, than most lawyers do when they're simply paid advocates. In a real way he seems to be adopting the position as his own. That takes me back to my question about lawyers "interfering" (if that's what it is) in cause lawyers' long-term litigation plans.
2. I understand Hillel's argument, which is why I framed my post as asking the question rather than stating a view. Of course it should be clear from the post that I do have a strong view about the wisdom of bringing this case, and about the hubris (if that's what it is) of a high-profile litigator who enters an area he's never engaged with before and brings something akin to a bet-the-cause lawsuit (see point 5, below). But as a matter of the professional judgment underlying this decision, well, that I don't know. Boies and Olson are sharp lawyers, to say the least. As Hillel says, they're certainly capable of making their own strategic calculations. So what's the argument for deferring? Maybe professional respect: if they really care about the cause they're advocating I could see them deferring to the people whose judgments have been pretty good up to now, especially when the costs of a loss are high. Those advocates have lived with this issue for years, and it seems to me that both their investment in ultimate success and their obvious continued diligence in getting there (i.e., it's not like they are shirking or getting timid) warrants some deference to their judgment that more building blocks have to be put in place before making the grab for final victory. (At the very least Olson and Boies could have done them the decency of either consulting or even just warning them, which it doesn't seem like they did, at least from the news reports -- though I could easily be wrong about that. But if they didn't that just heightens the sense that they're being both reckless and disrepectful, neither of which heightens my confidence in their refusal to defer.)
I'll be the first to admit that this argument doesn't fully persuade. Maybe it doesn't even come close. Ultimately, maybe I can't get over the hump of trusting Ted Olson's good faith, and I'm hiding that distrust behind an institutional deference argument. Or maybe I'm just someone who values procedure, chains of authority and respect for people who have proved themselves. On those attitudinal questions I tend to be on the Burkean conservative, traditionalist side (my husband constantly mocks me for being a rule follower). Maybe that's what's coming out; maybe I think lawyers, including cause lawyers, should err on the side of relying on the advice of those that have gone before, and successfully so.
3. As for Ethan, I never thought the amendment/revision argument was as bad as he seems to think it was. I think ultimately it was correctly rejected, but I don't think its flaws were so obvious that the gay rights advocates who made it have forfeited any claims to leadership. Moreover, the anti-8 argument really was defensive; by contrast, I worry that the Olson-Boies suit is an ill-considered attempt to grab the brass ring all at once. So ultimately, I don't fault the gay rights leadership for using the courts to attach Prop. 8, just like I don't fault the pro-8 forces for aggressively defending its legitimacy as an amendment.
4. JP's concise comment seems pretty perceptive to me. S/he's absolutely right that making policy through litigation carries with it the risk of cause lawyers losing control of the litigation (and thus the policymaking) agenda. My original post compared the situation today to that faced by Thurgood Marshall when he was running the NAACP's litigation effort. I'm absolutely no expert on the history of cause lawyering, but I guess what we're now realizing is that, in a real way, a difference between his NAACP world and today is that today litigation can't be controlled by a single group of cause lawyers. It seems to be a complex question. Maybe Marshall had the luxury of that control because so few wealthy people cared about the cause he was espousing. Or maybe those that did care and had the resources to litigate on their own had a greater sense of deference or loyalty. Or maybe there was some other dynamic. If Sam's speculation is correct, and this lawsuit is being funded by pro-gay rights folks with deep pockets, then this suggests that both of the characteristics that might have benefitted Marshall have broken down, at least with regard to this issue. I'd love to hear the thoughts of others who know more about cause lawyering, both then and now.
5. Finally, the tone. Fair enough: Regardless of any hand-wringing about professional judgment, I am pretty annoyed at this lawsuit. I have a lot of respect for public interest/cause lawyers who spend a lot of time -- yes, all their professional lives -- crafting a long-term litigation/legislation strategy to get from point A to point B. For a couple of high-profile litigators to suddenly enter the fray and make a high-stakes, high-risk legal claim may be their right, but it's hard to believe that it's being done in good faith. Why didn't they write an amicus brief in the Prop. 8 case, warning that upholding Prop. 8 would raise serious federal constitutional issues? Why haven't they participated in any of the state constitutional litigation over the last ten years? Why only now, and why the riskiest argument?
So, in answer to law type, I do have a personal reaction to this -- resentment, but not envy -- because I feel like my rights are now in the hands of people who have no particular track record of demonstrating that they have my best interests at heart. If in fact they do, then at best they seem to be recent volunteers for the front lines, rather recklessly implementing their own strategy when a defeat has consequences for millions of other people. The gay rights leadership may or may have done a good enough job to warrant my trust or Olson's and Boies's deference (though I have to say I would never have predicted the progress that's been made in such a short time). But at least I know they've been out there, fighting the good fight on my behalf for a long time. Ted Olson? Not so much, though again I'm loathe to discount the possibility that he's had a conversion that places him in opposition to the political forces he's publicly supported for decades, and that has motivated him to take this highly public and risky move on behalf of people whose rights his side has always opposed.
Who knows? Maybe the combination of Ted Olson and David Boies will persuade Justice Kennedy to take the leap. If it does then I'll nominate them to be grand marshals of the next Gay Pride Parade, confess during my next Prawfs stint that my susicious overly-cautious attitude would have delayed our victory for decades, and give thanks that people like me are safely in academia where we can't do any harm. If it doesn't, and if the lawsuit crashes and burns and sets back litigation efforts for years if not decades, I'll look foward to seeing Ted Olson lobby just as publicly for a pro-same-sex marriage plank in the 2012 Republican platorm. And David Boies doing the same on his side, for that matter.
We are all Realists - but don't tell anyone
One of the things that’s always struck me about judges is how reluctant nearly all of them are to acknowledge the extent to which there is a lawmaking role to the job (at least at the appellate level), and more generally how underdetermined an awful lot of legal questions are. Given that we’re all Realists, as the cliché has it, and have been for quite some time, one might expect that the ideas would be so ingrained as to be unremarkable. That’s not the case, of course. Just today the Wall Street Journal reports that Judge Sotomayor’s acceptance of Realism “is riling conservatives opposed to her nomination.” And there is also the glee with which those lining up against Judge Sotomayor are pointing to the video of her acknowledging that court of appeals judges make law. All of which, I suppose, demonstrates why a judge might think it appropriate not to acknowledge the lawmaking aspects of her job.
So let me now do that thing where I say something like, “if you think that’s bad, then check this out. Imagine the reaction if this judge ever got nominated for the Supreme Court.” And then, of course, I’ll hit you with the surprise answer at the end.
Here, then, are some quotes from an actual judicial opinion:
“Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so.”
“The complete separation of the judiciary from the enterprise of ‘representative government’ might have some truth in those countries where judges neither make nor set aside the laws enacted by the legislature. It is not a true picture of the American system.”
“In fact, however, the judges of inferior courts often ‘make law,’ since the precedent of the highest court does not cover every situation, and not every case is reviewed.”
The quotes are from Justice Scalia’s opinion for the Court in Republican Party of Minnesota v. White. I realize that there are grounds for distinguishing the two sets of statements if one is so inclined – Justice Scalia’s opinion was talking about state courts, Judge Sotomayor also said that the courts of appeals “make policy,” and so on. But at a descriptive level they seem to be saying more or less the same thing, and it strikes me as something that ought not be controversial, and probably isn’t among this crowd.
There is, of course, plenty of room for legitimate debate over the normative question of how courts ought to go about the task of exercising this authority to make law. One of the more frustrating aspects of much public discussion relating to the judiciary is the frequent conflation of these two questions. I’d like to live in a world in which appellate judges were not conditioned to believe that “making law” is something they must never acknowledge doing. What follows is a gross oversimplification, but it seems to me that if making law is something that judges must deny doing, then it becomes something that they will not do openly (even as they will necessarily continue to do it). That, in turn, tends to make it more difficult for the various forces that shape and constrain judicial behavior (see, e.g., Llewellyn's "major steadying factors") to operate effectively, and perhaps easier for the lawmaking power to be exercised irresponsibly. And that strikes me as more worrisome than an awful lot of what is often lumped under the heading “judicial activism.”
The Walls They Are A-Changin'
I have been teaching Art Law for a number of years, so an article in the WSJ about White House art caught my eye. It seems that along with a changing of the guard comes a changing of the walls. There are also a number of law schools and firms with impressive (if not renowned) collections. As examples, the collections at Kutak Rock and Cleveland-Marshall come to mind. If you could choose any famous work of art in the world to hang in your office, what would it be?
I have been teaching Art Law for a number of years, so an article in the WSJ about White House art caught my eye. It seems that along with a changing of the guard comes a changing of the walls. There are also a number of law schools and firms with impressive (if not renowned) collections. As examples, the collections at Kutak Rock and Cleveland-Marshall come to mind. If you could choose any famous work of art in the world to hang in your office, what would it be?
Ricci v. McCormack
Some of the attention focused on Judge Sotomayor's position in the Ricci case has discussed the likelihood that the Supreme Court will take the opposite view within the coming weeks, in the middle of the confirmation process. If that is so, I imagine some writers will take the view that being reversed in a high-profile case says something pertinent about whether Sotomayor is worthy of confirmation, or that it is a deliberate public blow against Sotomayor by the Court, one that is warranted or unwarranted depending on one's viewpoint. I thought it might be worthwhile to remind readers of a similar incident, one that is interestingly recounted in Woodward and Armstrong's book The Brethren. The tale concerns Chief Justice Warren Burger. A week after his confirmation, and one week before his swearing in, the Supreme Court announced its decision in Powell v. McCormack, holding that the House could not deny Adam Clayton Powell his seat for reasons that fell outside the scope of the Qualifications Clause. The decision overturned an opinion written by then-Judge Warren Burger.
A Tour of New York City's Zoning Dysfunction
I live in the Cobble Hill area of Brooklyn, giving me easy access to one of my favorite running routes – a roughly five-mile stretch of waterfront on the Upper Bay and East River that I call the “dysfunctional zoning tour.” Starting at the IKEA store in Red Hook and running past the Fairway Grocery, I can make my way north along the waterfront on Connoyer, Van Brunt, and Columbia Heights to Furman (right under the Brooklyn Heights Promenade) and on into DUMBO. The running route provides both athletic and academic benefits: There are few busy intersections at which an inattentive runner could be squished, and I get a worm’s eye perspective on what one might reasonably view as the Great Zoning Disaster of 1961 – non-cumulative industrial zones (“NCIZs”), meaning zones from which residential uses are forbidden in order to preserve space for manufacturing.
I can almost hear you yawning over the internet: You think that NCIZs are a topic only the wonkiest of local government law junkies (like myself) could love. But think again, gentle reader: As I shall suggest after the jump, it is possible that NCIZs have devastated the housing market not only in New York City but other big cities where they are used to retain industrial jobs. That these zones have persisted for almost a half-century is, I think, a tribute to the potent combination of (a) developer-driven corruption, (b) the Planner’s Meglomaniacal “Field of Dreams” theory that If You Zone It, They Will Come, (c) the political sclerosis induced by NIMBY-besotted neighborhood activists whose sense of civic duty ends at the shadow cast by whatever building is proposed next door, and (d) a Union-Town mentality that sees the retention of any manufacturing job in the city is worth any cost.
If I am right, then reports of some deregulating frenzy during the 1990s and early 00s might be exaggerated – or, at least, these alleged national trends never penetrated the Big Apple. NCIZ might also be a cautionary tale that our new distrust of markets in the wake of the financial crisis should not lead us too readily to jettison "public choice" skepticism about regulation.
My running route provides an object lesson of the zoning dysfunction. The view of the upper bay and Manhattan is spectacular, stretching from the Brooklyn Bridge to the Verrazano. These are obviously prime acres for residential real estate. Retailers like Fairway and IKEA who depend on residential consumers obviously think so, as do the developers with whom I’ve spoken. But the land, like roughly a third of NYC’s waterfront, is almost entirely zoned non-cumulatively for manufacturing, meaning that residential development is forbidden. Lest you think that this “manufacturing” land is teeming with busy wharves and cranes manned by highly paid union workers, think again: Much of it is empty lots or under-used warehouses. Some of the buildings are abandoned and downright derelict. American Stevedoring Inc still operates a small container port, aided by several millions in subsidized rent from the Port Authority. Golten Marine has a maritime repair facility next door. But, for the most part, my casual glance suggests that Marlon Brando would not be battling the mob but rather unemployment on this waterfront.
Why not let residential development in manufacturing zones as of right, protecting the latter from nuisance suits by the former with a “regulatory compliance” defense? The reason is an odd planners’ ideology, first triumphant with the 1961 zoning resolution, that seeks to reserve land for industry in NYC by preventing residential developers from bidding against manufacturers for lots. This theory maintains that, by protecting manufacturers from this competition, the city can keep good, high-paying union jobs in the city through a sort of indirect and off-budget subsidy of cheaper land.
I’ll assume, as a patriotic New Yorker, that keeping employment in the City from departing to New Jersey serves some greater social good, on the theory (I guess) that somehow Newark just does not need all those jobs as much as we do. Even so, NCIZs strike me as a terrible way to subsidize industry when compared to outright grants of tax revenue because they (a) impose large deadweight losses on residential users desperately seeking housing without actually guaranteeing good jobs; (b) are well-nigh invisible because they are off-budget, inviting tiny numbers of manufacturers to extract cheap land at excessive cost; and (c) encourage well-connected developers to snap up cheap land and then use their connections to secure a re-zoning to residential when the time is ripe for development.
Here is some initial evidence for my three objections to NCIZs. First, they hardly seem to be working well: NYC, after all, had 500,000 manufacturing jobs in the 1970s and only 118,000 manufacturing jobs in 2005. Maybe the thousands of acres of NCIZ'd land is somehow stemming an even greater outflow, but NCIZ defenders rarely tote up the costs of each job preserved in the City in terms of lost housing and foregone tax revenue. One study of Chicago found that Planned Manufacturing Districts did not do much to preserve high-paying manufacturing jobs. I know of no econometric study that makes any effort to see if the NCIZ game is worth the candle. Lots of planners, to be sure, tout the benefits of preserving manufacturing jobs in the City. (See, for instance, the Pratt Institute's study). But they make no effort to consider the opportunity costs of each job preserved in terms of lost housing and tax revenue.
Second, the "cheap land subsidy" provided by NCIZs is really hard to see when compared to on-budget costs of outright grants or even with tax subsidies. This invisibility invites enormous deadweight losses to preserve tiny numbers of jobs. When a manufacturer gets a grant or tax abatement, then it is obvious to minimally informed observers that they are receiving an unusual benefit for which they should be held accountable, because the layperson’s baseline of expectations is that one normally pays taxes and normally does not get grants of money from the City. By contrast, when a manufacturer gets a cheap lot because competing bidders have been zoned out of existence, there is no intuitive baseline of expectations by which to identify or measure the benefit. No one can tell why the residential users never bid on the lot (maybe the land just was not suitable for housing even if re-zoned), let alone the magnitude of the price reduction that the manufacturer received as a result of the zoning restriction.
Third, developers are notorious for seeking re-zonings of NCIZ’d land through intense lobbying through the Uniform Land Use Review Procedure (“ULURP”) of city council in which affordable housing, schools, and other blandishments are offered to buy support from politicians. This might be a nice sort of Henry George-style taxation of land rents if there were any systematic effort by the City to compare developers’ gains to the payout. But there is not, and, as Jerold Kayden noted long ago when studying plazas supplied by developers to the city in return for development rights, the evidence that the City is a good bargainer is not strong. (For the continuing wisdom of Kayden's observation, see this news item). The ongoing effort by the Walentas family to secure a residential re-zoning of land on Dock Street in DUMBO, greased by side payments of schools and affordable housing to city councillors, seems to be a typical illustration (conveniently located on my running route).
Why not, then, allow residential uses as of right in manufacturing zones, depriving the well-connected developers of their competitive advantage and enlarging the supply of buildable land for housing by the over 20,000 acres occupied by NCIZs? (If one wanted to keep that Georgist tax on the unearned increment from the change in use, then just impose a stiff tax on the increased valuation resulting from the re-zoning -- keeping the tax uniform to prevent the orgy of deal-making that would otherwise ensue). My guess, however, is that New York City is a union town with a planner's mentality and too many red diaper babies-turned-Brownstoner ever to adopt such a rational solution. Even the efforts of former deputy mayor David Doctoroff could not penetrate this potent combination. Instead of a frontal attack, the Bloomberg administration has assiduously pecked away at NCIZs by granting specific developers' applications for re-zoning or engaging in laborious re-zonings of selected sites (Gowanus, Red Hook, etc) through pitched battles with unions, neighbors, and land-use activists. Whether this grinding process will eventually produce a sane allocation of land is anyone's guess. But the decades of housing lost is a cost whatever the final outcome.
What's Your Family's Catch Phrase?
Did anyone else here catch the show that was on the other night which counted down the fifty top funniest phrases in TV history? It was a pretty funny program, although the absence from the countdown of either Good Times' "Dyn-o-mite!" or Different Strokes' "What you talking 'bout Willis?" was really inexcusable. Among the fifty were such gems as "Two wild and crazy guys," "Aaaaay," "Nanu-Nanu," and "Up your nose with a rubber hose." The top phrase was "Yada Yada Yada" from Seinfeld.
The program got my family thinking that maybe we should have a catch phrase. Doesn't every family really need one? I talked to my wife and son about it, and we decided to adopt the phrase "Daddy Doesn't Know" as our catch phrase. It's something I say all the time in response to their questions because I don't really know a damned thing. The catch phrase, though, involves more than just saying the words. There's kind of a special way to say them and some body movement as well. If you're interested in checking it out, we've posted a very short movie on YouTube, and I invite you to give it a look.
Does your family have a catch phrase? If so, I hope you will share it with us here.
"Federal Court? Wow. Never Thought of That."
The above quote, from Matt Coles, Director of the ACLU's LGBT Project, appears in the New York Times article reporting on the Ted Olson David Boies lawsuit challenging Prop. 8 in federal court. (Ethan blogged about this lawsuit yesterday.) One of the commentors to Ethan's post expressed some cynicism about Olson's agenda, and in the Times article a number of prominent gay rights advocates, like Coles, expressed some reservations about the timing of the suit. I have no clue what Olson's (and Boies's) reasons are -- maybe they're sincere, or maybe, as suggested by a commentor to Ethan's post, they're cynical. It's surely the case that the lawsuit represents a massive gamble: if it's successful in the lower courts the Supreme Court is bound to step in, and if Olson and Boies lose at the Court then the issue will be off the federal constitutional radar for a long time, maybe decades.
What I'm curious about is the appropriateness of cause-driven lawyers taking up a cause that wasn't previously theirs, and taking steps opposed, or at least avoided, by the architects of that cause's long-term litigation strategy. To translate: it's apparently been the common wisdom among gay rights advocates that premature federal constitutional litigation on gay marriage could be harmful to that cause. That makes a lot of sense to me, though for present purposes what's important is that the (fair enough, self-appointed) leaders of the movement think so. Then in step Olson and Boies, filing their challenge the very day the state supreme court announced its impending decision in the Prop. 8 case.
Again, leave aside the possibility that this suit is a cynical ploy to create a blockbuster Roe-like federal constitutional/political issue just as the Republican Party is finding itself devoid of winning arguments it can make to the American people. I don't like casual allegations of bad faith, and it would impugn a lawyer's reputation to make this kind of charge without evidence. And the presence of David Boies -- surely, nobody's fool -- casts further doubt on the conspiracy thesis, unless Olson and Boies are simply making different political calculations. Rather, what I'm interested in is the interloper aspect of the lawsuit, where Olson and Boies swoop down, pluck some plaintiffs off the ground and fly off the federal court with a high-profile lawsuit and even a fancy new organization.Is this appropriate? Note, this is not an average litigator getting a visit from a same-sex couple who really want to get married and decides to not worry about larger political implications but simply to advocate for the rights of the clients in front of him. That seems absolutely appropriate to me -- maybe even compelled, though I don't know enough about the relevant legal ethics rules to make that last judgment. I have got to assume that Olson and Boies picked this cause, and only then went looking for clients. Indeed, Olson's comments yesterday support this interpretation, which of course jibes with what we all know about high-profile lawyers like these two -- a lot of their work is all about causes, not individual clients per se.
If that's true then it's hard to avoid the conclusion that Olson and Boies have intervened in the strategy directed by other cause lawyers -- among others, the ones quoted in the Times article as expressing concern and even annoyance about the lawsuit -- who have made gay rights their lives' work. (Hence the title of this post.) At best this strikes me as naive; at worst (again leaving aside the cynical political explanation) it strikes me as an arrogant hijacking of a long-term process worked out by someone else. If Thurgood Marshall were still alive he would probably react to this lawsuit by expressing gratitude for the unpopularity of civil rights litigation in the 1930's: at least he didn't have to fend off others' attempts to bring a school desegregation case to the Court before the time was ripe.
Just to state the obvious: if this lawsuit is successful then I'll be thrilled. I wish Olson and Boies good luck and good lawyering. But they've grabbed a baby out of someone else's hands and are running pretty fast with it. I really hope they don't drop it.
Wednesday, May 27, 2009
Can a Run Really Count When the Runner Never Crosses Home?
So I'm taking a break from grading con law exams to watch my favorite team (the Mets) beat up on my least favorite local team (the Washington Don't-Call-Them-"Natinals"), and there was an odd play in tonight's game:
With no one out and Gary Sheffield on first base in the bottom of the sixth inning, Daniel Murphy hit a ball that appeared to glance off the facade of the second deck before landing in fair territory. On the field, the umpires ruled that it was in play (and so must not have hit the facade), and Sheffield was thrown out at home trying to score. After going to the video, the umpires overturned the call, and ruled it a two-run homer. Murphy, who stopped at third, finished trotting around the bases, and the Mets took a 5-3 lead.
Here's my question, though: What about Sheffield, who was thrown out at home before the replay? Doesn't he have to go back and touch home at some point? If not, is it possible that I witnessed the first time (or, at least, one of the first times) in major league baseball history that a run "scored" without ever crossing home?
I raise this because baseball's rules are notoriously formalistic when it comes to crossing home -- think back to Robin Ventura's "Grand Slam Single" in the 1999 NLCS. So even if Murphy's shot is a homer, doesn't Sheffield have to cross home before his run can count?
Or is this just proof that technology will overcome even the most fundamental of all rule-based systems? Where are our jurisprudence scholars when we need them??
And Now for a More Plausible Challenge to Prop 8 . . .
I have to confess that I never thought the Prop 8 challenges in state court had a legal leg to stand on. I'm not happy with the outcome of the case because I take no pleasure in my state's denying gays the equality they so obviously deserve. But the consequences of the court striking down Prop 8 under the theories offered by the opponents of Prop 8 in state court would really have been quite serious: coming down the other way would essentially have made a mockery of governing law in this area and would have been itself a quite serious constitutional revision of direct democracy's role in California's governance and state constitution. Many people don't like direct democracy and would love to undermine it in any way possible. But I didn't think this was the right way to revise California's constitution. I'm a gay rights advocate. Not this way, though. And I had assumed we'd win at the polls soon enough.
But I confess I do take great pleasure in Ted Olson taking on the case. The Bush lawyer in Bush v. Gore is now filing a federal lawsuit to have Prop 8 overturned on federal grounds: that denying same-sex couples the right to marry violates the federal Constitution. And he's looking forward to arguing it in front of his buddies at the Supreme Court. Now that argument just might be a winner -- and there is certainly a firm legal footing to support that argument even if it loses the day. One can still worry about backlash, about judicial role, and about whether gay rights advocates should go this route instead of a more piecemeal legislative and hearts-and-minds campaign. But the nerdy lawyer in me has no qualms about this lawsuit the way I had serious reservations about the legal house of cards upon which the state argument was made. And I'm delighted by the courage Ted Olson is showing in making the right argument against Prop 8, even if it alienates him from large segments of the Right and even if the Left wasn't quite ready to take the gamble. Ted Olson is now making the argument gays strategically avoided, the Republicans can't stomach, and even our audacious President is too scared to make. Quite an interesting turn of events.
Alex Acosta to be dean at FIU
I am thrilled to report that R. Alexander Acosta, currently U.S. Attorney for the Southern District of Florida and former head of the Civil Rights Division at DOJ, will be the new dean of FIU College of Law. Acosta graduated from Harvard College and Harvard Law School and clerked for Samuel Alito on the 3d Circuit (my old circuit). FIU press release here.
This is a great hire for us. Acosta has connections in the Miami market that will be a tremendous help for us in attracting students, getting them jobs, and raising money--the three areas in which we are most lagging. I admit to having been initially apprehensive about a non-academic dean. I was won over by hearing about Acosta's efforts as a non-prosecutor taking over a prosecutors' office; the parallels to a non-academic taking over a law school were pretty striking. And we are in pretty good company with schools that recently have gone the non-academic route for dean. Could this be something of a new trend?
And, of course, there is the fact that this played out so publicly, thanks to Florida's Sunshine laws and having a high-profile political figure in the mix. In the end, I do not believe the coverage skewed the outcome, but it definitely changed the way the process worked.
I would pause to compliment and thank our outgoing dean, Leonard Strickman, who got the place off the ground and carried us through the fill-in-the-box steps of ABA and AALS accredidation. Acosta's role is to get us to the next level and I am convinced we got the right person.
The symbolic stakes of the Establishment Clause
It seems to me that the Establishment Clause, at least as it is viewed by the Supreme Court, it increasingly about symbolism. What I mean by this is that more and more, the Establishment Clause disputes that tend to make it to the Supreme Court are over religious speech, symbolism, and the like, where no real financial or other "concrete" stakes are involved. I wouldn't be surprised, moreover, if this reflected a trend in the lower courts as well.
For example, if I'm not mistaken (and I'm sure someone will correct me if I am), all of the Supreme Court's Establishment Clause cases since 2004 have revolved around symbolic or verbal endorsements of religion, with the sole exception of Cutter v. Wilkinson (2005). One might even say that this trend reaches back to the 1990s, in which the big cases were primarily about symbolic government endorsement of religion, except that there were a few equal-access cases mixed in (Rosenberger, Lamb's Chapel, etc.) that can't completely be categorized as such, since the parties were fighting in those cases at least in part over funds or access to other privileges that are not purely symbolic in nature. But contrast those two decades with the 1980s, in which the Court spent much of its energy hashing out the minutiae of the Establishment Clause problems involved in channeling funds to religiously affiliated entities.
What to make of this difference? More after the jump.
Now, I'll admit I've identified a fairly small "n" from which to generalize. Nonetheless, I'd guess a few things are involved: first, it simply may not be worthwhile to challenge funding programs that benefit religiously affiliated institutions anymore, since Zelman v. Simmons-Harris, the 2002 Cleveland school vouchers case, seemingly created a situation where governments would almost have to be trying to violate the Establishment Clause for a funding scheme not to pass muster. Second, perhaps we are now, in the age of the culture wars, simply more attuned to and concerned about the symbolic or expressive dimensions of government conduct and its implied designation of insiders and outsiders. Finally, and relatedly, I would like to suggest that a concern about symbolic favoritism toward religion is and really always has been at the heart of the meaning of the Establishment Clause. The Framers themselves agonized over the constitutionality of legislative prayer, Thanksgiving Proclamations, and the like, though no significant concrete or financial benefits from the government flowed from them.
Classroom Twitter Pages
Many of us already use a variety of electronic resources in the classroom, but what about using Twitter? Personally, I think it might be useful for some purposes, but I can't imagine it replacing TWEN or basic e-mail. It could create interesting opportunities for faculty and students from a variety of law schools to communicate with each other, and the 140-character limit would make reading go quickly (and encourage tweeters to get to the point). There are certainly pros and cons to consider. If you're already using it, how is it working? If you're not using it, would you consider it?
Deborah Hellman on Prop 8 decision, Peter Westen, & Equality
Deborah Hellman sent me the following thoughts on the California Supreme Court's Prop 8 decision and Peter Westen, which I post below:
"Peter Westen famously argued that equality is an empty idea. The basic point he made in his influential article was that the idea of equality could never tell you how much of a particular good a person is entitled to, nor whether she has a particular right. Moreover, equality cannot require that the state treat each of us the same, as the state clearly may treat us differently when there is good reason to do so. The famous aphorism for the rule of law ideal, “treat like cases alike,” is meaningless, he argued, because the important question will always be: which cases are relevantly like which others? And the California Supreme Court unfortunately agrees.
"Yesterday, that court decided that Proposition 8 – which “added” text to the California Constitution providing that “[o]nly marriage between a man and a woman is valid or recognized in California” – was an amendment to that state’s constitution rather than a revision of it. Because an amendment requires only the process used to pass Prop 8 (a referendum), while a revision would require a constitutional convention, this decision upholds Proposition 8. Prop 8 itself overturned the prior decision of the state’s highest court holding that the California Constitution forbids limiting marriage to opposite-sex couples. The court reached the conclusion that Prop 8 is only an amendment to the constitution by finding that the change it makes is not to constitutional fundamentals. It did this by reading equality as an empty idea.
The court reasoned that gay men and lesbians can afford themselves of the civil union opportunities California provides. In the court’s view, while restricting the designation of “marriage” to gay couples is not irrelevant, it does not constitute an abandonment of the state’s commitment to equality because this is a fairly limited restriction. Prop 8 is a constitutional amendment because it makes a minor change, merely limiting the designation of “marriage” to some people while still affording others the actual rights they deserve – to be able to form families, have meaningful relationships, etc.
"This decision shows Westen’s mistake, as well as what is at stake in how we conceive of the norm of equality. Equality is not an empty idea. It requires that the state treat each of us as equals. Westen is right that equality does not require that the state treat us the same in all circumstances. Nor does the norm of equality tell us what particular rights (other than equality) we each have. If the state wanted to stop granting marriage licenses to anyone, essentially leaving the designation “marriage” to religious or other private parties to confer, and simply grant civil unions to both straight and gay couples, the right to equality would not be offended. In that sense, no one has a right to “marriage.” But what equality does demand is that the state must treat us as people of equal worth. This command forbids the state from drawing distinctions among people in a way that is demeaning. Justice Moreno of the California Supreme Court explains in his opinion, concurring in part and dissenting in part, that “[d]enying same-sex couples the right to call their relationships marriages treats them as ‘second-class citizens.’” It is this that equality forbids.
"One cannot help but think of Justice Harlan’s famous dissent in Plessy, “as all will admit, … the real meaning of...” the law is “that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens.” Today we might say, “as all will admit”, the real meaning of Prop 8 is that the relationship between couples of the same sex is not equally valuable as the relationship between opposite sex couples and therefore does not deserve the name of 'marriage.' While this is not exactly the same as branding gays as inferior, Prop 8 surely brands their relationships as inferior, which is awfully close."
Affirmative Action in Michigan & the Hunter-Seattle Doctrine
What should a law professor think of judge’s refusal to enforce plainly applicable doctrines simply because those doctrines are politically unpalatable? The ongoing litigation against my old academic home in Coalition to Defend Affirmative Action v. Regents of University of Michigan raises precisely this question. The plaintiffs are challenging the constitutionality of a state constitutional amendment (“Proposition 2”) banning the University of Michigan’s affirmative action programs. The district court has ruled against the plaintiffs, and the briefs have been filed in the Sixth Circuit. But one suspects that the doctrinal niceties of the case are dwarfed by the following obvious political reality: No court will ever declare that a state’s voters are constitutionally prohibited from jettisoning affirmative action if they so desire, because judges regard the voters’ power to control such controversial policies as essential to those policies' democratic legitimacy.
At issue in the case is whether Michigan’s affirmative action ban falls afoul of the slippery equal protection doctrine of Hunter v. Erickson, 393 U.S. 385 (1969) and Washington v. Seattle School District No. 1, 458 U.S. 457 (1982) invalidates this state constitutional ban on affirmative action (“Proposition 2”). These cases have come to stand for the principle that state law may not “allocate governmental power nonneutrally, by explicitly using the racial nature of a decision to determine the decisionmaking process.” Washington, 458 U.S. at 469. Invoking this principle, Hunter struck down a city charter amendment barring the city council of Akron from enacting Fair Housing ordinances prohibiting discrimination on the basis of race. Likewise, Washington struck down a state-wide ballot initiative prohibiting school districts from adopting race-based student assignments not required by the Fourteenth Amendment.
As a purely doctrinal matter, it is difficult to see how this doctrine should not also result in the invalidation of a state constitutional ban on affirmative action. In upholding Prop. 2, Judge David Lawson argued that, unlike Michigan’s affirmative action programs, “racial integration programs [like Seattle’s busing program] do not presumptively offend the Equal Protection Clause” and that “[race-based] [d]esegregation [in K-12 education] is constitutionally required in certain instances” whereas “the Supreme Court has never held that affirmative action is required, and Grutter made it clear that it is barely tolerated” (Pages 5-6 of Judge Lawson’s opinion denying plaintiffs’ motion to alter or amend judgment). None of these arguments are very persuasive in the wake of Parents Involved in Community Schools v. Seattle School District No. 1, 127 S.Ct. 2738 (2007), in which the Court held that race-based student assignments in K-12 education are now just as suspect as any other race-based classifications. If Washington’s ban on (presumptively unconstitutional but sometimes permissible) race-based busing is unconstitutional because that ban “mak[es] it more difficult for certain racial and religious minorities to achieve legislation that is in their interest,” then it is hard to see why Michigan’s ban on (presumptively unconstitutional but sometimes permissible) affirmative action is not equally an infringement on these minorities’ power to achieve (admittedly suspect) legislation.
But the doctrinal details are obviously beside the point: It is hard to avoid the conclusion that Judge Lawson simply could not swallow the idea that Michigan’s voters cannot get rid of affirmative action if they so desire. Was this lawless behavior, or was it a judge’s legitimate (albeit clumsy) effort to reconcile norms of federalism and popular sovereignty with a doctrine that seemed to cut too close to those constitutional values?
After the jump, I’ll offer a couple of reasons why federalism and popular sovereignty might not be offended by invalidating initiatives like Prop 2 on Hunter-Seattle grounds. But my larger question is whether readers believe that it is appropriate for an inferior court to take such big structural considerations into account to “construe” and limit a precedent that otherwise seems plainly applicable.
On the specific question of whether the Hunter-Seattle doctrine, rightly understood, interferes inappropriately with federalism, I (a certified federalism nut) think that the question is more uncertain than many allow. The doctrine, after all, does not prevent Michigan from prohibiting affirmative action programs. If the state’s voters want to create a comprehensive code for public universities listing the factors that can play a role in university admissions but leaving out race, then they are free to do so so far as Hunter-Seattle is concerned. The Hunter-Seattle problem arises only because the state has set up a system of administrative discretion in which (for instance) the University of Michigan’s regents have broad discretion to decide whether or not to consider any number of educationally tangential factors – alumni status, geographic origin, poverty, professional experience, extra-curriculars like jazz band or debate club, etc – but must ignore any plea by their constituents to consider race. This is the sense in which Prop 2 is (in Justice Harlan’s words from his Hunter concurrence) akin to “dilut[ing] [a] person’s vote or giv[ing] [a] group a smaller representation than another of comparable size.” If Michigan wants to amend their constitution to get rid of the Board of regents and turn their functions over to the state legislature, they are free to do so under Hunter/Seattle. Likewise, Michigan’s voters could simply enact a “university admissions code” that left out race altogether from the list of permissible factors without offending Hunter/Seattle. But, having given their regents enormous discretion over university policy, Michigan's voters cannot then gerrymander an exception to this broad jurisdiction just for issues especially beneficial to a racial segment of the population.
Is such a doctrine consistent with federalism? Consider the following defense of the doctrine in terms of federalism. Federal regimes are valuable because they protect institutions (states) that are politically accessible to a lot of constituencies. Each state is not a monolithic entity but rather a collection of counties, municipalities, special districts, public universities, and literally hundreds of elected executives (e.g., insurance commissioners, D.A.s, sheriffs, drain commissioners, etc), all unified by a constitutional framework that allows them to make coherent policy without treading too injuriously on each others’ toes. These polyglot entities are superior (in my mind) to the federal government precisely because they radically reduce the costs of political participation by shrinking the size and multiplying the number of electoral districts: The average member of the U.S. Representatives raised roughly $2 million in 2005-2006, while expenditures in state elections tend to be much smaller, ranging from $10,000 per representative in states like Idaho that have electoral districts with very small electoral districts to $500,000 in California’s much larger state senate districts.
But the democratic legitimacy of this highly permeable system is undermined by “carve-outs” that eliminate the ability of certain constituencies – especially racial ones – to take advantage of the access that the system affords. Hunter-Seattle can be regarded as a safeguard against this sort of carve-out by requiring that states' voters or legislatures define the powers of the state's institutions without reference to the interests of particular groups. For instance, if the state wants to centralize municipal benefits policy in, say, a single administrative board, then it can do so under Hunter-Seattle. But a state’s banning cities only from providing same-sex employment benefits comes close to offending the principle of equal political access (assuming that the Hunter-Seattle doctrine extends beyond the racial context).
In this sense, Hunter-Seattle is consistent with that other Hunter doctrine -- Hunter v. City of Pittsburgh, 207 US 161 (1907), which declared that cities lack constitutionally protected property or contract rights against the states that create them. Hunter-Seattle preserves this state discretion to centralize vast swathes of policy-making (university admissions, public employee benefits, etc) just so long as the state paints with a reasonably impartial brush.
I do not pretend that these formulations resolve the predictable questions of what it means for jurisdiction to be defined with "reasonable" impartiality. But I do not think that the threat to federalism or popular sovereignty posed by Hunter-Seattle is plain enough to justify a lower federal court's evasion of the doctrine's plain terms.
Trial experience, pleading, and the Supreme Court
One thing that has not been talked about at all is that, if confirmed, Sonia Sotomayor would be the only justice with experience as a trial judge. One criticism leveled at the Supreme Court for its recent pleading decisions has been the justices' apparent lack of awareness or care for how trial pretrial practice works on the ground or for how difficult it is for lower courts to make heads or tails of the Court's "guidance" on the issues. The hope is that a justice with trial-court experience can make her colleagues aware of life and litigation on the ground.
On subjects such as pleading, this may cut in multiple directions. As several commenters on some recent pointed out, there has been an ongoing back-and-forth between SCOTUS and the lower courts over pleading. Until Twombly in 2007, it had been the lower courts trying to ratchet the requirements up (especially in civil rights and antitrust cases) and the Court pulling them back (likely to the chagrin of the trial courts, who were looking to control their dockets). Now, it is SCOTUS taking the lead on telling the lower courts to demand more from the complaints, but with somewhat mixed signals and without much specificity as to what they should be looking for from pleadings. The result may be more cases being dismissed at the pleading stage, or it may just be another round of motion practice that district judges are going to be forced to deal with.
Moreover, the solution of ratcheting up the pleading requirements is based on the assumption that there is no other way to avoid abusive, expensive, and burdensome discovery for ultimately unfounded claims. The Court has twice rejected the idea that we can trust trial judges to wisely exercise their discretion and to keep discovery in check. It will be interesting to see if a former trial judge is as willing to assume such a lack of competence by lower-court judges.
Sotomayor <> Miers: A Brief Rundown
Sotomayor is not a close friend and counsel to the President; Miers was.
Sotomayor has the most federal judicial experience of any Supreme Court nominee in over a century; Miers had none.
Most importantly, Miers suffered from a crippling ideological disconnect from the base of the President that appointed her. Sotomayor has no such disconnect. It was the right wing of the GOP that killed Miers. I'm baffled that folks like Ponnuru and Buchanan seem to have blocked this out.
Daily Kos has a cute analogy game here. Anyway, I think there's one more difference: Miers was great for the legal blogosphere. Sitemeter was off the charts! I predict no such boom for Sotomayor.
Tuesday, May 26, 2009
How Smart Do You Really Have To Be?
Note: I have edited the title of the post to better reflect its intent and content. --HYL
Okay, so I was a little off. Stunningly wrong, actually. This is why they don't pay me the big bucks. Then again, people pick the Cubs to win the World Series every year and still get paid the big bucks.
I want to ask the prawfs community a question.
We have already seen a lot of punditry on whether Judge Sotomayor has the intellectual chops necessary to be a good Supreme Court Justice, and we can expect to see much more. (As I argued in my previous post, I think she obviously does.)
Lurking in the background of this debate is an unstated assumption that being a Supreme Court Justice is an extremely difficult job that requires intellectual capabilities that only a few of even those most obviously qualified possess.
My question is simple: how smart do you really have to be to be a good Supreme Court Justice? And, as a follow-up, exactly what is it about Supreme Court judging that requires this level of brilliance?
Some Quibbles With Rick
Rick has posted a well-written comment on the National Review's Bench Memos blog, which I've already had occasion to speak ill of once today. I stand by that, by the way, not because it's conservative but because I think too many of the bloggers there are reflexive, rabid, and, well, silly -- Rick (and a perfectly fair post by Gerard Bradley) excluded. As always, I don't think such traits are exclusive to the right, and that's why I rarely read either NRO or its mirror-image blogs on the left. But my writing about Wendy Long sent me back there, and I ran across Rick's post. He writes, in substantial part:
Look for expressions of regret [over potential smear tactics], and calls for seriousness, civility, and the like, in the days to come from President Obama’s surrogates in the press and in the activist groups. You will have to look harder, though, for journalists to observe, and these surrogates to admit, that (a) the “let’s use Supreme Court nominations as occasions to smear good people” tactic is one that the Democrats — but not, in fact, the Republicans — have practiced enthusiastically; (b) that Justices Breyer and Ginsburg were easily confirmed, with substantial Republican support, not because they were “moderate,” but because the Republicans voted in accord with the “President gets his (qualified) nominees” standard; and (c) that dozens of Democratic senators, including the president, abandoned this standard (to the extent they ever respected it) and disgraced themselves by voting against Justice Alito and Chief Justice Roberts, easily among the most impressive nominees in history.
It also seems safe to predict that the press will, as they swoon over Judge Sotomayor’s personal story and Ivy League credentials, forget the extent to which Justice Thomas’s own story did not protect him from outrageous attacks, and his own prestigious degrees did not prevent snide insinuations that he was merely the beneficiary of affirmative action.
Initial Thoughts on the Prop. 8 Decision: Back to Where We Started?
The California Supreme Court has issued its decision in the Prop. 8 case, upholding (on a 6-1 vote) the validity of Prop. 8 as an amendment to (rather than a revision of) the California Constitution, but also upholding (on a 7-0 vote) the validity of the approximately 18,000 same-sex marriages (including mine) entered into between June and November, 2008. Chief Justice George, who wrote the opinon granting same-sex marriage rights, wrote the opinion released today. Justice Kennard concurred and Justice Werdegar concurred in the judgment (disagreeing with the majority's amendment-revision analysis but agreeing with the result). Justice Moreno was the dissenter (he was on at least one Obama short-list for the Sotomayor nomination; I wonder how much they knew about his impending dissent).
It's a long opinion (the majority comes in at 136 pages), and since I've only had a chance to skim it lightly I won't comment on the merits of the analysis. But one interesting issue popped up relatively early in the opinion: the possibility, about which I blogged last November, that a ruling in favor of Prop. 8 left some room for an advocate to argue that the only way to comply with both Prop. 8 and the constitutional analysis in the Marriage Cases was to deny the status of marriage to everyone.
The basic version of the argument is fairly clear: Prop.8 states that only opposite-sex marriages are valid and recognized in California, but the state constitution's equal protection guarantee requires that sexual orientation classifications be subjected to strict scrutiny. Presumably, the state can honor Prop. 8's language without discriminating against gays and lesbians only by denying marriage to everyone. Q.E.D.
Chief Justice George may well have been aware of this issue. Thus, early in the opinion he characterized the Marriage Cases as defining the substantive right at issue as "the opportunity of the individual to establish . . . an officially recognized and protected family . . . entitled to the same respect and dignity accorded a union traditionally designated as marriage" -- a right "distinct from the right to have one's family relationship designated by the term 'marriage'" (p.34). Today's opinion makes it clear that that latter right -- the right to a status that has all the respect and dignity of the status of marriage -- is not affected by Prop. 8.
This analysis complicates the simple version of the argument described before the jump. Now the issue becomes whether denial of the term "marriage" to same-sex relationships implies unequal respect or dignity. This is, of course, exactly what many same-sex marriage-rights advocates have been arguing all along, especially once civil unions started to be offered as a way of resolving the issue. It surely seems to open the door for a legal argument to that effect.
Are there any clues about how the court might resolve that argument? Justice Werdegar, in her concurrence, wrote, after noting the strict scrutiny requirement that remains in effect after today, that "all three branches of state government continue to have the duty . . . today as before the passage of Proposition 8, to eliminte that remaining important differences between marriage and domestic partnership, both in substance and perception." (p. 9) (italics added) She then drops a footnote that says in part that in the Marriage Cases the court "explained how the assignment of a name other than 'marriage' to same-sex unions creates the perception of second-class status, perpetuates disparagement based on sexual orientation, poses practical difficulties for same-sex couples and their children, and threatens privacy." (pp.9-10, fn.8) She concludes the text of her opinion as follows: "For the state to meet its obligations under the equal protection clause will now be more difficult, but the obligation remains." (p.10)
Of course hers is just a concurrence, but, combined with the majority's language there's at least room for litigation. But also room for creative action by the state. Given how much the court relies on the technical status of marriage as the only item affected by Prop. 8, and given the constitutional imperative to maintain a same-sex relationship status that has the equal dignity of marriage, I wonder if we're going to see proposals to essentially have exactly the same forms, legal status and procedures imposed for both marriage and domestic partnerships, with the caveat that only opposite-sex relationships will be referred to as "marriage." I mean, for example, literally, a form that is entitled "Application for Marriage/Domestic Partnership" and a certificate that says "Certificate of Marriage/Domestic Partnership" with boxes for the clerk to check based on whether it's a same-sex or opposite-sex couple. And amendment of all state laws to substitute "marriage or domestic partnership" where "marriage" used to be.
Even if the state does this, there may well be litigation. And it might be fascinating to watch. If domestic partnerships really do get all this equal legal status, the the marriage/domestic partnership distinction almost becomes a distinction made for its own sake. That characterization would seem to tee up a federal equal protection challenge, if anyone was willing to bring it.
Who knows. But certain things do seem clear at this point. First, today's opinion doesn't settle the issue of what marriage law will look like in California. Second, ironically enough, in the course of settling the law we may be back to the same question that's been on the agenda for several years now: how important is the word "marriage" to the true equality of same-sex couples with their opposite-sex counterparts.
Again, this is all based on an exceptionally quick read. If I missed something I'd love to hear it. I'll be saying more about it after I do some more grading!
How Should We Play the [Sotomayor] Game?
So, the announcement has been made, and the press releases -- pro and con -- that have been sitting ready for days and weeks now are shooting their way back and forth like a screen-capture from Joshua in Wargames. Not to mention the oncoming barrage of blog posts, which, although perhaps not drafted in advance, in many cases will prove no more fresh or surprising than if they had been. I have written before that the Supreme Court confirmation process has become, in effect, a game. Not in the sense that it's meaningless or trivial; of course it will have real-world effects, although those effects will be far less great than some of the ensuing arguments will make it seem. Rather, it's a game in the sense that it follows an evolving but reasonably stable set of standard rules and moves, in which everyone knows and plays their part. That many people will be passionate about this -- that they will be convinced that they are not simply playing a part, that this nomination and this nominee matter more than most -- does not refute this point; football players and their fans go through the motion about a dozen times a year, and to tell them each game is the same old game, that each is more or less predictable as a game, if not in outcome, and that there's no point getting worked up about it would be a pointless conversation. And, as I've also written, like other games, the Supreme Court confirmation game is also about goods that precede and in some ways can be more important than the actual identity of the nominee (hence the brackets around Sotomayor's name in the title of this post), because it serves other purposes: fundraising, ideological wagon-circling, political advantage, and, tying these all together, the simple perpetuation of activities -- and jobs! -- that depend on a continuing supply of those goods. So, of the Sotomayor nomination, I say with weary resignation, let the games begin.
Judge Sotomayor is a liberal judicial activist of the first order who thinks her own personal political agenda is more important that the law as written. She thinks that judges should dictate policy, and that one's sex, race, and ethnicity ought to affect the decisions one renders from the bench.
worked closely with some of the very best minds in the world, in both law (at Yale Law School and in the legal academy) and philosophy (at both Harvard College and the University of Michigan’s graduate school, which was widely considered the best department in ethics in the world when I was there.) Judge Sotomayor stands out from among these people as one of the very brightest; indeed, she is in that rarified class of people for whom it makes sense to say that there is no one genuinely smarter.
I can't, of course, say that this is untrue, not having met Sotomayor or, I dare say, most of the smartest people in the world. I would note that that the comma between "world" and "in both" in Rob's sentence above should be omitted if his statement is to be genuinely accurate. I highly doubt that the very best minds of the world can be found in either law or philosophy; Rob has, at best, worked closely only with some of the very best minds in the world in law and in philosophy, and that's not at all the same thing as working with some of the very best minds in the world tout court. I doubt even the more qualified version of Rob's statement. I don't doubt that some of the best minds in law and in philosophy could have been found at Yale and Michigan, but both faculties obviously also contain some lesser minds, and for many reasons, geographical and so on, many of the genuinely very best minds are likely to be found dispersed among many other institutions or, in the case of law, in private practice. (Not to mention the likelihood that many of the very best minds in either subject are not English speakers or Anglo-American lawyers.) Even assuming that the qualified version of Rob's statement is true, I do not assume that working closely with these individuals is a good way to evaluate how brilliant they are. Surely all former proteges and law clerks realize just how much their relationship to their mentor or judge, the particular nature of that relationship, the filio-piety of the academic and legal worlds, and their own experience can distort an objective evaluation of the people with whom they have worked closely. The last person I would go to for an objective evaluation of, say, Harry Blackmun, is a former Blackmun clerk. So maybe Sotomayor is as brilliant as Rob says -- maybe there are none more brilliant -- but I doubt it.
One Small Victory
I don't have strong views about the merits of President Obama's decision to nominate Judge Sotomayor to the Court. But I am pleased that now she will not be defined by the speculation that's swirled around her over the last few weeks. I don't know her, and don't know her judicial work, but she's obviously highly accomplished with an extraordinary personal story. It's unfortunate that in our political culture it's normal for such accomplished people to be mentioned as a candidate for a high position, only to be brought down before that person has had a chance to speak for herself. Instead of going down in history as the judge who was deemed not smart enough to be on the Court, without any chance to rebut that charge on the national stage, she will now get her chance. Regardless of what one thinks of her work or her politics or even her suitability for the Court, that's a small victory for decency that should please everyone.
Debating the Guidelines
In my posts so far, I have simply assumed that there exist reliable quality guidelines to measure the quality of empirical work, and then I have looked at how these guidelines should be used. To understate things, this is a substantial handwave. These guideline can be quite difficult to develop, and in this post I want to touch on some of the important issues raised by these challenges, particularly for litigation.
The litigation problem is easy to define:
1. In many cases, the scientific dispute can be dispositive.
2. Different guidelines can reach different conclusions, even when applied to the same set of studies.
3. The result of a case can thus turn on which set of guidelines is used.
4. It is hard if not impossible to assess which set of guidelines is superior.
At first blush, then, shifting from jury fact-finding to systematic reviews simply replaces one kind of arbitrariness--that arising from epistemic incompetence--with another, namely the choice of guidelines. There are, however, two responses to this, one short-run and the other long-run.
The short-run response is that this may be a short-run problem. Quality guidelines are still in their infancy, and some of the disagreement across guidelines will, I hope, disappear as the field matures. After all, many guidelines fail to agree on what constitutes quality in the first place; and quality terms are often asserted, not empirically validated themselves. But with time, definitions of quality should converge, and already there is work on testing the relevance of particular quality items. In fact, the short-run conflict in guideline outcomes could have long-run benefits, since it highlights the issues that need attention.
But long-run problems will persist, both with regards to quality and empirical validation/guideline disagreement.
1. Quality. At the end of the day, quality is a normative issue. All might agree that minimizing bias is important, but there is no objective way to state how bias and efficiency should be balanced, and there may be normative disagreement about the very relevance of other quality components (such as the ethics of the study design). There are two ways to approach this problem.
First, we can think of quality's definition as a matter of law for the judge to settle. What counts as quality can be left to the judge. And defining what quality is is likely a far easier job, and one judges are far more capable of undertaking, than deciding whether a particular study meets that definition. Moreover, this is the kind of task we frequently ask judges to do. In many ways a ruling about whether evidence should be excluded from a criminal trial is a question about how our definition of quality should take into account a constellation of normative values.
Second, and more challenging, empiricists in all fields--not just epidemiology--may be forced to confront the deeper epistemic challenge laid down by Diana Petitti:
[I]f epidemiologists cannot define what constitutes quality in non-experimental studies, how is it possible to do studies that we all agree have merit? If meta-analysis fails because quality is elusive, then all of non-experimental epidemiology fails for the same reason.
This is not an issue for the courts to resolve, but the sciences. As they wrestle with this significant problem, the legal system may likely be able to do no better than judicial definitions. But explicit judicial definitions of quality would be a huge step forward, injecting a powerful dose of transparency into the process, and perhaps encouraging a debate within the law about what good evidence should look like (without requiring legal actors untrained in the sciences to debate whether particular projects satisfy those standards).
2. Dueling guidelines. Over time, guideline standards may converge. But at least two problems should remain, one of which cannot be eliminated. Some disagreement in how to measure particular quality elements may persist, and different analysts always run the risk of applying identical guidelines differently.
First, what happens if two sets guidelines agree on what is quality, but (1) disagree about how to measure it, (2) each use empirically validated measures (and neither can be shown empirically to be better than the other), and (3) reach different conclusions? This could be seen as a flaw in guidelines. I see it as a core strength. Dueling validated guidelines are epistemically informative: they tell us the answer, and that answer is "we do not know." This is an answer we must become more comfortable with, an issue I will turn to in an upcoming post.
But guidelines are often developed for a particular problem, so at least in the litigation setting we won't have dueling guidelines, just the awareness that a different set of guidelines has the potential to reach a different answer. Does this eliminate the usefulness of guidelines for litigation? No. First, the development of off-the-rack quality terms and validated measures will minimize this problem. Second, it is important to avoid the utopian fallacy. Sure, different guidelines could reach different answers. But so too could different juries listening to the same experts. The real question is: will guidelines lead to the right answer more consistently? Or, perhaps: will guidelines lead to the right answer with sufficiently greater frequency to justify the impositions they put on, say, party control?
This utopian fallacy argument can be used to address the second problem as well, namely the important role of judgment in guidelines. Guidelines ultimately will include some sort of subjective element ("does the study properly control for endogeneity?" or "is the sample size sufficiently large?"), and different subjective answers can lead to different outcomes. But again, jurors and partisan experts are applying their subjective judgment, so the question is whether independent experts limited by rigorous guidelines will do a better and more consistent job at doing so. By now, it should be clear what my prior beliefs are about the answer to that question.
Evidence based policy is still in its infancy, and how it should fit into the legal system is a question that scholars and legal actors are only just beginning to address. It may be that EBP will have to mature more before it is ready to be incorporated into the legal system, and so we should not stop considering less extreme alternatives (such as hot-tubbing) in the interim. But at the same time, we should not look at the current limitations of EBP and despair of it ever being useful to the law. It is a growing field, one that is maturing every day. And after all, at one point in his life, Usain Bolt couldn't even walk.
Six (!) Catholics on the Court?
So, it sounds like President Obama will nominate Judge Sonia Sotomayor to replace Justice Souter. Could it be that we will soon have a Supreme Court that is two-thirds Catholic (and 1/9th "White Anglo-Saxon Protestant")? Poor Chris Hitchens! And now for some bold punditry: I am going to go out on a limb an predict that we will not seen op-eds like this one if Justice Sotomayor's votes are consonant with the social-justice teachings of the Catholic Church.
Padel's Resignation from Oxford
The AP via NYT reports:
Oxford University's first female Professor of Poetry resigned Monday after acknowledging she had helped publicize charges that her rival for the post had sexually harassed a former student. Ruth Padel,
the great-great-granddaughter of Charles Darwin, made history at Oxford when she became the first woman to be elected to the position of Professor of Poetry since the job was created in 1708....But Padel's election was marred by Nobel literature laureate Derek Walcott's decision to withdraw as a candidate from the election after anonymous letters attacking him were sent to Oxford academics. British newspapers reported that the letters made reference to an allegation of sexual harassment made against the St. Lucia-born poet by a former student in the 1980s. The papers said the letters included references from the book ''The Lecherous Professor: Sexual Harassment on Campus,'' by Billie Wright Dziech and Linda Weiner, which carries allegations against Walcott made by a Harvard freshman in 1981. At the time of his resignation, Walcott said he had never commented on the claims and would not do so now. But he called the anonymous letter campaign an attempt at character assassination. Padel came under increasing pressure after The Sunday Times quoted e-mails it said she had sent to two unidentified journalists drawing their attention to the book. In a statement announcing her resignation, Padel acknowledged sending the e-mails. But she said she did not engage in a smear campaign, explaining that she had only passed on information already in the public domain. ''I acted in complete good faith, and would have been happy to lose to Derek, but I can see that people might interpret my actions otherwise,'' she said in the statement. Oxford University, which has been embarrassed by the controversy, said it respected Padel's decision and that ''a period of reflection may now be in order.'' A new election is expected sometime before the current Professor of Poetry, Christopher Ricks, steps down from his post at the end of the summer.
What do you all think about this? Is it wrong to draw attention to material in the public sphere--or to do so anonymously when one is the other candidate for the position? Was Padel engaged in a form of anonymous cyber-bullying? Was Walcott's resignation an appropriate form of just deserts? What if Padel had been approached by the journalists and/or offered the information on background and acted in response to student concern? Is it really enough to warrant the claim that she won the professorship as part of a "scurrilous ... campaign"? Last, consider this provocative, but probably unreasonable, claim by one commentor for the Independent:
With Padel too, the shockwaves set off by her emails suggests that ambitious women are not allowed to play hard. Men can and do use any weapons they have when battling against competitors, but not so the gentler sex. How many male professors across the land can honestly say they have always played fair to reach where they are?
I confess, I have no idea how this issue would play out in the US. Some of it reminds me of The Human Stain and Disgrace--two super novels by Roth and Coetzee, respectively. Thoughts?
Sunday, May 24, 2009
Books of Brilliance
Since Paul has already identified the truly important material in this week's NY Times book review, it remains for me to note David Brooks's piqued reaction to Simon Schama's "The American Future: A History." Brooks disdainfully places it in the "brilliant book" category -- "the sort of book written by a big thinker who comes to capture the American spirit while armed only with his brilliance," and one can feel the indignant irritation radiating off the screen. The genre includes Bernard-Henri Levy's psychological road trip across America, "American Vertigo," in which the redoubtable Frenchman goes on safari through l'Amerique profonde and reports back on the zoological curiosities encountered along the way.
I've not read Schama's book, but I am actually more interested here in Brooks's reivew. I did read portions of Levy's book, and I also recall Garrison Keillor's angry and rather ungracious review of it a few years ago. I wonder how much longer we are destined for this predictable game -- one which de Tocqueville began, and played well to be sure, but whose staleness seems to increase with each new iteration. Are we forever condemned to play the earnest, irritated, self-important simpletons? They tweak. We react. And they give off that familiar culturally knowing chortle at the reaction -- as regular and predictable a pattern as one can find in Henry James's renditions of Americans abroad (the majority of which are now more than a century old). Che noia.
It does not help in the least when Brooks trots out the exceptionalist nonsense that "of all the books it is impossible to write, the most impossible is a book trying to capture the spirit of America." Gimme a break. This bit of embarrassingly pious drivel is attributed to Jacques Barzun, a particularly odd source of inspiration, since Barzun has shown little reluctance to write "books of brilliance" -- but maybe a declinist intellectual history of the entirety of "Western Cultural Life" just isn't nearly as audacious as capturing the ineffable spiritual essence of a comparative baby on the historical scene.
Here's my strategy for breaking this obnoxious and tiresome cycle. Now that we have been provisionally re-admitted to the global confraternity of cosmopolites, having put our anti-deluvian renaissance squarely in the rear-view mirror, perhaps it's time to turn the tables. I suggest a new genre -- one in which those with pretensions to be American public intellectuals tool all around south-western France (avoiding Paris, of course -- we are only interested in la France profonde) and write "spiritual essence" books of brilliance that explain France to the French (or, insert here your own favorite European stalking horse). Then we can at last play the provocateur, and we can respond to the eminently predictable indignation with a well-placed "Quelle mouche t'a pique', mon cher?" Do you think summer money might be available for this sort of enterprise?
The Best Books in the New York Times Book Review...
...often aren't among the books reviewed that week. They're the self- or vanity-press-published books advertised in the Review. Some of these books, it should be said, go on to enjoy larger fame and have been picked up by major presses for substantial advances. Still, the descriptions of these books are often priceless. My favorite this week is the one for a book titled The Adventures of Marshal Gabby Tucker, Volume One: Family Ties in the West, which can be found at this site:
This exciting Western follows the Tucker family as they search for their kidnapped son, Lefty. The large family joins forces with local native Americans to find the group of lost boys. Full of humor and adventure, you'll find yourself glued to the last page.
More on religious freedom, exemptions, and SSM
Picking up on Bill A.'s recent post (here), I thought Prawfs readers might be interested in this piece, by Peter Steinfels, in the Times ("Same-Sex Marriage Laws Pose Protection Quandary"), and this post, by Andy Koppelman, at Balkinization ("Support Your Local Bigot"). Both items relate to the efforts of several law professors (including Michael Perry, Doug Laycock, and Andy -- here is their letter to New Hampshire's governor -- and Robin Wilson, Carl Esbeck, Tom Berg, and me -- here is our letter).
Andy's thoughts regarding the question, "what is bigotry, anyway, and why is it a bad thing?" are interesting: "Bigotry is wrong for two reasons", he writes, "First, it harms the people who are its objects. Second, it is a moral failing on the part of the bigot. It is important to distinguish these." In his view, the objection to religious-liberty exemptions to same-sex marriage laws cannot really be that they will harm gay people, "because they will only be invoked by a few people and won’t have much effect on gay people’s opportunities. It is rather that we shouldn’t accommodate bigotry." And, in his view, there is no need to "beat up on" "antigay bigots, even the morally reprehensible ones," if "they can be rendered harmless."
Like Andy, I do not believe that all of those who support (as I do) and who would invoke religious-liberty exemptions from SSM laws are "bigots." (I suspect Andy would be generous in admitting people to his category of those "on that side of the political divide who . . . are honestly doing their best to pursue the right as it is given to them to see the right.") I do believe, though, that anyone who would claim the label "liberal" should support at least some such exemptions -- not simply because it is not worth the candle to beat up on "harmless" bigots -- but because the refusal (and even, frankly, the reluctance) to concede that there are some contexts or spheres (e.g., the internal polity and practices of a religious community) into which liberal norms need not extend and upon which they should not be imposed is profoundly illiberal.
Saturday, May 23, 2009
The Asinine Evidence for Largely Irrelevant Inquiries: Kagan and SCOTUS
I just got back the other day from a quick trip to Israel, where I was teaching a mini-course on punishment and sentencing at Bar Ilan, so I haven't had a chance to do much substantive blogging lately. That said, in the morass of catch-up, I did come across a recent judicial politics posting on NRO (which I came across via ATL) that I though warranted some response.
In her post, Wendy Long argues that Elena Kagan shouldn't be awarded any points by conservatives in the post-Souter confirmation process for her purported success in making HLS more hospitable to libertarians and conservatives. Why not? Because under Kagan's tenure as dean, only 3 "conservatives" were hired (Goldsmith, Manning, and Vermeule), and this represents only 7% of the hires made during Kagan's time as dean.
Law school hiring observation III: the Prawfs hiring thread
This post is not so much about the hiring process itself as the hiring thread that Dan and the other co-bloggers were gracious enough to organize and host. As before, these are only my own thoughts and I think it worthwhile in this context especially to emphasize that they may well reflect the point of view of exactly one person.
The first time I had a go at the market a few years back, the process felt quite opaque to me, and it was discomfiting to feel that events were happening, people were being phoned, interviews scheduled, and so on, without my having the foggiest idea about any of it. This past year, the thread helped to alleviate some of these anxieties. But it was also a comfort to see in the thread that other people were feeling as I felt -- in the dark and not knowing what might or might not happen. There was a kind of camaraderie that I felt with the anonymous throng -- and when one feels alone, camaraderie with a nameless and faceless horde of competitors is better than one's own special solitude. Actually, the second time around, I was lucky to have friends who were going through the process with me and I knew a few people in the academy already who also knew that I was at it and alleviated that sense of alone-ness.
I gathered from some comments and other responses to the thread that some of those who thought it a good idea did so because of the commonly-voiced and faintly metaphysical notion that "Information wants to be free" -- that just because data was available, it ought to be known to all and that was reason enough. I have never agreed with this view.
Information does not want to be free. Information does not "want" anything. The possession of information is not inherently good or right or deserved, and it is not true that if information exists, everyone necessarily benefits from having an unceasing supply of all of it. It is people that want information, not the other way round, and people ought to want information for particular reasons -- reasons that they should be able to articulate and explain. Otherwise, the unabating glut of information, coming in wave upon towering wave, can become just as alienating -- just as lonely -- as the total absence of it.
For me, the thread was valuable insofar as it communicated to people what was happening with the schools in which they had interest. That seemed important since sometimes it can happen (no, say it ain't so!) that a school is not, shall we say, as prompt about keeping a candidate apprised about the path of his or her candidacy as might be ideal (at least, from the candidate's perspective). This is only to be expected, of course, since there is absolutely no way that any single school could possibly manage to keep all of its suitors perfectly informed (even should it want to), and a candidate's thirst for information borders on the unquenchable.
But consider this thought experiment. Imagine that the schools in which one was interested did keep one adequately apprised of one's progress. Let's say that a candidate who was curious could, with no adverse consequence to her candidacy, call in to the school and get exactly the same information that was conveyed on the thread. For example,"Yes, candidate X, we've extended 15 AALS interviews and 4 pre-AALS interviews," or "we've scheduled 3 callbacks in the areas of corporate tax, criminal law, and your area, torts." If this were acceptable practice, would there be any point in having the thread? Would there be any additional advantage to accessing all of this extra information?
I can think of at least two, though there may be more. The first is that the thread can give a candidate a more general, indirect sense of the strength of his or her candidacy. If my area is civil procedure, and I see that lots of schools are scheduling civ. pro. callbacks but no one has called me, I now gain a better sense for the way in which my candidacy is being perceived. Admittedly, it's an imperfect indicator -- I don't know for sure that I wasn't called back because my candidacy was weak -- there might be other reasons. But I do get some sort of unfortunate, but probably necessary, critical appraisal, and my expectations can begin to shift gradually, as can my plans.
But the second reason is the one that I alluded to above. The thread can itself be a comfort in what is an otherwise quite solitary process. It can be a wildly imperfect substitute for "friends" with whom to share the experience -- albeit faceless and nameless virtual friends (whom you don't know, and who don't know you right back). And it can be a small help, a teeny tiny little comfort, to know about some fellow souls with whom to travel through this process. Maybe the thread goes some small way toward that end as well.
Friday, May 22, 2009
Teaching about Writing by Doing
I am just back from an arduous "vacation" with to Disneyworld with my husband, my toddler, and my preschooler (hence the blogging hiatus), to find that all hell has broken loose, at least, as Howard Wasserman has been describing, where notice pleading rules are concerned.
One good thing that happened in my absence, though, is that my colleague Jacqueline Lipton's short article, "Ph.D. Lite": A New Approach to Teaching Scholarly Legal Writing has been published in the inaugural issue of de novo, the Cardozo Law Review's online supplement. Among other things, Jacqui explains in this article how she writes a short article at the same time and on the same schedule as her students who are writing their Notes and shares her progress (and her drafts) with them. This strikes me as an extraordinarily brave but likely very effective way of teaching good writing. Read more about it here.
I hate to blog and run, but after weeks of exams and grading, it's time for a vacation before I return to the computer and a new article. I have thoroughly enjoyed the past month-plus on Prawfs, and I'm grateful to Dan et al. for allowing me to stay on a bit longer than usual.
My best wishes for an enjoyable, productive and fun summer to all. And for those of you with some time on your hands and a love of good music, Sasquatch!, Bonnaroo and Pitchfork all promise excellent lineups!