Friday, May 08, 2009
Review Essay Review: Abner Greene on Religion Clause Theorists
Via Larry Solum, I saw this review essay by Abner Greene on the recent work of Martha Nussbaum, Christopher Eisgruber and Lawrence Sager, and Brian Barry (though Barry's work is, for Greene, not so much an object of review as an egalitarian counterpoint to the approaches of the other two). The piece is extremely interesting and a marvelous read, incorporating some of Greene's wonderful past work on reductionism.
All three of the theorists under consideration make a certain type of move with respect to the religion clauses -- they claim that the protections afforded by the religion clauses are ultimately reducible to protecting the value of equality, and whatever other values are implicated are secondary. That is, they reduce religious liberty to a single value, equality, and so the religion clauses end up being about that value more than anything that they themselves might denote -- i.e., "religion." In one portion of the review essay, Professor Greene confronts directly the question whether reductionism of this kind is ever warranted in constitutional interpretation: '[w]hen, if ever, should we reduce specifically stated constitutional protections to their underlying values, and in so doing, alter the coverage of those protections from their explicit scope?" What can be said for reductionism? What can be said against it?
Part II of Greene's piece discusses reduction in constitutional theory generally. He writes that in no other area of constitutional law are the protections afforded by the text reduced to values. It is certainly true that whether speech, to take one example, is protected will depend on the values of the free speech clause underwriting the protection. But there is an important difference between saying, on the one hand, that we protect speech and, on the other, that we protect the values underwriting the protection of speech. And the same goes, Greene says, for other constitutional protections -- the takings clause, for example, or the right of assembly. In the case of unenumerated rights, it is the case that a value or a set of values has generated specific protections (from "privacy" are derived contraception and abortion, for example) but the religion clauses, unlike the due process clause, actually contain a "textual hook," and it seems strange to ignore the hook when it actually exists (as opposed to conjuring hooks when they don't).
Greene then makes the claim, drawing from Bruce Ackerman, that "the best" argument for reductionism in religion clause theory is that the Equal Protection Clause "changes everything," in that when the religion clauses are read in conjunction with the EP Clause, we get something new and different than what the religion clauses meant at the founding -- something "synthesized." Notwithstanding that synthesis, Greene continues, it still remains unclear which conception of equality ought to be the one that is synthesized with religious liberty.
The remainder of Greene's piece is a discussion of the different conceptions of equality represented in the approach of the three sets of scholars under review. Barry's approach is that of formal equality (it may be the type of approach favored by contemporary scholars like Marci Hamilton, for example), E&S's approach is an equality that questions the distinctiveness of the category "religion," and Nussbaum's is an equality that recognizes religion's distinctiveness by defining it in extremely broad terms as "conscience" -- as a capability (or, perhaps, sub-capability) within her capabilities theory framework.
As the essay proceeds, Greene finds more to agree with in Nussbaum's approach than in the other two, but it also seems clear that he is all-in-all persuaded by the centrality that each approach gives to equality for the religion clauses. Greene makes many interesting points about the strengths and weaknesses of the various approaches, but I want to set those to the side.
Instead, I want to ask a question that assumes that the reductionist egalitarian project is a good one. Greene seems to say that it is; I am less certain, but that is for another day. But even if it is true that the religion clauses ought to be reduced to an egalitarian value of some kind or another, why is it not better to say that we cannot be sure which one it ought to be? For some circumstances -- in some places and in some times -- the pull of the formalist egalitarian view of Barry will be strong. It will be the appealing view not because it is always the best egalitarian view, but because the circumstances will be such that the formalistic view will suit the circumstances of conflict best. And the same might be said for each of the other egalitarian views as well. In some cases, Nussbaum's "fear of strangers" equal respect egalitarianism will win the day. But what if there is actually something that ought legitimately to be feared, or controlled by the state? Why ought not the formalist egalitarian nose ahead in those circumstances? This really boils down to a methodological concern: why should we want to predict which egalitarianism is (always, invariably) trumps ex ante? Why shouldn't we instead recognize the (true, real) conflicts within equality -- ones that we actually experience in the event -- as themselves generating the competing theories of equality?
It is just this sort of view, of the deep conflicts internal to a single value, with which Greene closes the piece: "Although I am generally sympathetic to the Nussbaum view of equality regarding religious liberty, I find much to admire about Barry's approach to the child-parent-state issues, which must be part of any discussion of religious liberty."
I'm not sure it can be called "piling on" to write about Elizabeth Edwards' private life right now, given that she has little apparent hesitation talking about it either -- to Oprah, no less. I don't want to dwell on it. But one statement she made yesterday is worth looking at for a second. It raises two interesting questions from a feminist, or class-meets-feminist, perspective. Here's the statement, as reported by the Times:
Mrs. Edwards does not use Ms. [Rielle] Hunter’s name either in the interview or in her 213-page pocketsize book, telling Ms. Winfrey that she doesn’t want to give her any publicity. Ms. Hunter, she says, is “so completely different from anything that, I mean, I don’t know any people like this, I don’t have any friends like this person.”
When to Post to SSRN (Junior Edition)
There was a useful exchange at Prawfsblawg a while back - here and here - about when to post to SSRN. Having recently had an article accepted for publication, with a couple of smaller symposium pieces in various stages of disarray, I am nonetheless again confronted with the question of when exactly to post my papers to SSRN. Although Bernie Black had some useful thoughts on when, in an ideal world, it might be best to post, don't different rules apply to us untenured folk? I have on occasion been advised as a junior faculty member not to present anything to the outside world, via workshop, SSRN, or otherwise until it is basically in as perfect a form as it is likely to see. On the other hand, obviously, it is usually at the earlier stages of writing that the possible comments one might get from posting the paper will be most useful. (Though I must add I have yet to receive any comments from someone who simply came across my paper on SSRN.) My own decisionmaking about this has been somewhat random.
So, dear untenured readers, when do you post?
Thursday, May 07, 2009
Law School Hiring Observation I: "Theoretical" is Problematical
I don't really have any advice about the law school hiring process, primarily because I do not think I've been around long enough to have accumulated advice. I did just go through the process and have been malingering around law schools for the past few years in temporary roles, and I do have a few observations that may be peculiar to me and my experience, or perhaps others have noted exactly the same phenomena, in which case I'll just be restating the obvious and adding nothing new.
Here's my first observation: it is not advisable to be deemed "theoretical," and it's certainly no good when one is deemed too "theoretical." I'm not exactly certain what is meant by "theoretical," other than a pejorative judgment. Possible and non-exclusive meanings may be impractical, insufficiently attuned to the urgencies of the quotidian, disconnected with students' concerns, inadequately grounded in legal doctrine, abstruse, contemplative to the point of paralysis (think Justice Tatting in The Speluncean Explorers), and directed at too narrow and specialized an audience -- one which commands more attention than it, at all events, merits. Surely there are many others. But whatever "theoretical" is, it seems to generate the uncontrollable urge to roll back one's eyes in ennui. So for job candidates, it's best avoided.
The difficult part is that I'm at something of a loss for how to avoid it. Sure, there are the tell-tale signs: Ph.D.s in non-legal disciplines do nothing to allay "theoretical" suspicion. But it's been my experience that one doesn't need to have a Ph.D. in order to receive the troublesome label. It may be the subjects that one chooses to write about, one's writing style, one's speaking style, one's thinking style, the things one likes to talk about over dinner, the books one has up on one's shelf, one's background, one's taste in cognac, and so on. It's hard to know how the designation is conferred, but once conferred, it's quite difficult to shake. And if one is "too" theoretical, that may well be taken as a disqualifying mark.
Now, as I said, these observations are particular to me and I do not purport to offer them as "advice." And there are likely as many opinions about the desirability of the "theoretical" candidate as there are meanings of the term itself.
Chemerinsky on Why We Write
Erwin Chemerinsky has written a foreword to the Michigan Law Review's annual books issue. It's classic Chemerinsky: humble, courteous to other voices in the debate, and written with grace. The title identifies the topic: -- Why Write? It's not exactly a new topic for law professors, at least those who have earned tenure. It's been blogged about here, too. But when someone like Chemerinsky considers it it's worth considering again.
Early on in his discussion he notes that he agrees with Harry Edwards, the D.C. Circuit judge who some years ago criticized the legal academy for focusing too much on theoretical scholarship at the expense of scholarship written for other audiences, especially (in Edwards' critique) judges. Chemerinsky doesn't criticize theoretical or interdisciplinary work; he just thinks faculties undervalue other types of scholarship. For what it's worth I agree, though I hasten to add it's just a subjective impression. I also suspect there's no consensus on where the line is between theoretical and "practical" scholarship.
More interesting is Chemerinsky's analysis of what should count as tenure-worthy scholarship, and how he ties it into the "why write" question. He ends up focusing largely on originality. As long as something is original, he implies, its format -- article, treatise, casebook, even brief -- shouldn't matter. This is a welcome statement, especially from a dean of a law school, though frankly I suspect most deans would at least claim that even a casebook would count toward tenure if it was sufficiently original. As Chemerinsky reminds us, wonderful scholarship such as Hart & Wechsler's federal courts book has taken the form of casebooks. But given Chemerinksy's own history of casebook, treatise and brief writing (not to mention his characteristic candor and good faith), there's reason to believe he means what he says.
As for the criterion itself: Originality is pretty intuitive as a criterion for scholarship. But as I said, what's interesting is how it ties into his ultimate explanation for why scholars write. Part of that explanation is the contribution original scholarship makes to the knowledge base. Sure, it sounds presumptuous to think our work makes a difference. But I think most of us do write with the hope that someone will listen and maybe use our original idea as a component of a bigger idea that will have some real world effect.
So far, so good. Where I think about getting off the bus is at Chemerinsky's last argument. Contributing to the larger debate, he says, "seems too instrumental and too incomplete" a justification for scholarship. Instead, "a fundamental reason" we write is self-expression. I don't doubt that he's right about that. I get a great deal of personal satisfaction from scholarship I do that I consider well done, and for me, as I suspect for most of us, "well done" scholarship has something original to say. But I do wonder about our self-expression getting subsidized by tuition-paying law students. Subsidizing scholarship done in the name of advancing some larger body of knowledge or public good is one thing; subsidizing our self-actualization seems a different matter. Would I have a right to expect my law school to subsidize (by considering it an appropriate use of my non-teaching work time) work I do writing a novel? Reading one? Climbing a mountain? Doing stand-up comedy (other than class)?
In a sense this is a trivial argument: given that I accept the "contribution to knowledge or the public debate" justification for scholarship, maybe any self-actualization I enjoy is just a collateral benefit that comes along with the broader contribution that (speaking optimistically) my scholarship may make. But still, if a student asked me why I wrote, and I said that it wasn't to change the world, or in order to learn the material better to assist in my teaching, but just because it made me feel good, I wonder how the student would respond.
Of course, there may be other side-benefits to students from their professors doing scholarship: presumably the professor will know more and thus teach better, or maybe the school's rankings will go up and that will redound to the students' benefit. Is it a proper answer to the student that I do my scholarship for my own reasons, but that she shouldn't worry about it because it benefits her, regardless of those reasons?
A: "No, Senator, I don't know what Barbra Streisand's eighth album was." Q: Was it not, in fact, Color Me Barbra, sir?"
My home-state Senator, Jefferson Sessions, has announced: "I don't think a person who acknowledges that they have gay tendencies is disqualified per se for the job" of Supreme Court Justice.
So, that's nice. Thanks, Jeff. But it does raise some difficult questions:
1) Are "gay tendencies" more acceptable than full-on gayness? So, for instance, someone who has cheated on his wife a couple of times with a man, but is still basically on the DL, is a better candidate than one of those typical gay-marrying Mainers?
2) That "per se" bit intrigues me. Is Sessions saying that a "gay tendencies" candidate is only presumptively, but not absolutely, debarred from the position? Or is he saying, "I think a gay candidate may be perfectly qualified for the position, but I'm hoping that if I use enough double negatives, my constituents won't catch on"?
3) What about people who fail to acknowledge that they have "gay tendencies?" So, Kevin Kline in the first half of In & Out (the inspiration for the title of this post) = unqualified, but Kevin Kline in the second half of In & Out = qualified?
4) With friends like these . . . ?
A Summary, and a Small Point About Competence
Since I've been posting for a month now about problems with the production and use of empirical evidence, I thought I would take a moment here to (1) briefly summarize my arguments so far and (2) quickly address an issue of competence.
1. Empiricists have traditionally produced knowledge poorly, focusing too much on pioneering work and not enough on rigorous syntheses. This could be due in part to a general disdain for the review essay, but is surely also the result of a poor philosophy of science.
2. This failure to produce knowledge well is becoming untenable as the volume of empirical work--much of it of poor quality--explodes. Social scientists and courts alike are being forced to wade through ever deeper, and ever more incoherent, bodies of empirical claims.
3. Fortunately, empiricists* are developing increasingly powerful methods for determining what studies are of good quality and then synthesizing their findings in what are oftren referred to as "systematic reviews." This is at the heart of the Evidence Based Policy movement.
4. There is, however, much work still to be done. Most work on systematic reviews has focused on ranking and aggregating the findings from experimental studies. Almost no attention has been paid to observational studies, which is unfortunate: such studies are much more common (especially in litigation), much easier to produce, and much more vulnerable to (naive or cynical) errors.
5. Though only in its infancy, EBP provides a meaningful opportunity for reforming how the law uses science. Prior to EBP, the sciences generated knowledge through roughly-adversarial means, and thus they did not have a true alternative to offer the law. EBP represents a more collaborative and holistic approach, and thus a true alternative to adversarial knowledge production.
Co-authoring Strategies; books, etc.
Here's a question: have any of you tried co-authoring a law review article with someone using Google Docs? Is there some other software (preferably easy and free) to use also? I ask because I wonder what the best technology strategies are for collaboration. With the Privilege or Punish book and its related projects that I've done with Ethan and Jennifer, we basically just used Microsoft Word, redline and email attachments for everything. That strategy was reasonably effective, but it required each of us to take turns with "command" of the particular project for the most part. Not necessarily the best use of time.
In this book, Horwitz’s students re-examine legal history from America’s colonial era to the late twentieth century. They ask classic Horwitzian questions, of how legal doctrine, thought, and practice are shaped by the interests of the powerful, as well as by the ideas of lawyers, politicians, and others. The essays address current questions in legal history, from colonial legal practice to questions of empire, civil rights, and constitutionalism in a democracy. The essays are, like Horwitz, provocative and original as they continue his transformation of American legal history.
The Other Footnote 4 (in Justice Stevens's Fleeting Expletives Dissent) and Its Unintended Consequences?
In the famous Simpsons episode, Marge v. The Monorail (written by Conan O'Brien), Grampa Simpson asks whether the town of Springfield should foolishly put all its eggs in one basket and purchase a multi-million dollar monorail from a singing con man. But the assembled community misunderstands his rhetorical question, and answers with a resounding "yes," carrying him atop its collective shoulders as he protests that he's not for it but against it. (Or so I remember the episode from watching it a long time ago. Those of you with the DVD, or a more recent viewing in your memories, can add any corrections in the comments). I'm wondering whether the timing of this report of proposed legislation-- banning erectile dysfunction ads from the daytime television -- is just a coincidence, or whether Justice Stevens's recent dissent in FCC v. Fox Television is getting the same treatment as Grampa Simpson got in the monorail incident. In footnote 4 of that dissent, Stevens mocked the FCC's fleeting expletives ban by noting how ironic it was that the FCC was penalizing fleeting expletives "with only a tenuous relation to sex or excrement" in the middle of shows that cut to commercials asking viewers "if they too are battling erectile dysfunction or are having trouble going to the bathroom." Rep. Jim Moran's proposed legislation would fix that inconsistency by making sure that Viagra commercials get the same FCC-treatment as fleeting expletives. It would insist that the FCC treat treat as indecent and bar from network airwaves "between 6 a.m. and 10 p.m . . . any advertisement for a medication for the treatment of erectile dysfunction or for male enhancement."
In the famous Simpsons episode, Marge v. The Monorail (written by Conan O'Brien), Grampa Simpson asks whether the town of Springfield should foolishly put all its eggs in one basket and purchase a multi-million dollar monorail from a singing con man. But the assembled community misunderstands his rhetorical question, and answers with a resounding "yes," carrying him atop its collective shoulders as he protests that he's not for it but against it. (Or so I remember the episode from watching it a long time ago. Those of you with the DVD, or a more recent viewing in your memories, can add any corrections in the comments).
I'm wondering whether the timing of this report of proposed legislation-- banning erectile dysfunction ads from the daytime television -- is just a coincidence, or whether Justice Stevens's recent dissent in FCC v. Fox Television is getting the same treatment as Grampa Simpson got in the monorail incident. In footnote 4 of that dissent, Stevens mocked the FCC's fleeting expletives ban by noting how ironic it was that the FCC was penalizing fleeting expletives "with only a tenuous relation to sex or excrement" in the middle of shows that cut to commercials asking viewers "if they too are battling erectile dysfunction or are having trouble going to the bathroom."
Rep. Jim Moran's proposed legislation would fix that inconsistency by making sure that Viagra commercials get the same FCC-treatment as fleeting expletives. It would insist that the FCC treat treat as indecent and bar from network airwaves "between 6 a.m. and 10 p.m . . . any advertisement for a medication for the treatment of erectile dysfunction or for male enhancement."
This is not, I think, the response that Justice Stevens intended. And there's good reason not to intend it. Ads about erectile dysfunction are hardly the only elements of daytime television, apart from swear words, that are unsuitable for children. As I noted in another recent blog post, long before Justice Stevens noted the underinclusiveness of the FCC's fleeting expletives ban in his dissent last week, George Carlin made fun of similar FCC restrictions many years ago, pointing out that why you can't say the F-word on television, many TV show plots revolve around the sexual activity that that word describes (it's between 6:14 and 7:30 on the video I've linked to). While I suppose one could argue that in a sitcom like Friends, Seinfeld, or in numerous soap operas, the meanings may be a bit harder for kids to figure out, that's not invariably true. There are plenty of daytime shows that deal with sex or other topics too frankly to be appropriate for young children. So Rep. Moran's bill would hardly eliminate the need for parents to monitor their children's television watching, make use of V-chips, and/or find other ways to limit their children to watching particular channels. (Or do what we've been doing in my household lately and foregoing broadcast and cable TV in favor of DVD and Internet video).
Fifty-two years ago, in Butler v. Michigan, the Court (in an opinion by Justice Frankfurter) rejected a Michigan law aimed at "quarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence." In a frequently-quoted statement, the Court said that the admittedly powerful interest in protecting children cannot serve as an excuse to "reduce the adult population . . . to reading only what is fit for children." The same should apply to broadcast television. It would be a strange cultural regime that forced senior citizens with an interest in learning about viagra (or its alternatives) to stay up until 11 pm to see the advertisements.
This isn't to say that parents shouldn't react with surprise or anger when adult themes arise in shows that are promoted as suitable for young children. I'd certainly consider stopping my kids from watching Sesame Street if Elmo's World started to feature sexual content or violence of the kind one can finding Law & Order-SVU, CSI, or 24 (before 10 pm in some parts of the country). And some might argue that the problem with the ads is that -- unlike these shows (which adults know are generally inappropriate for children) -- the ads might air in the middle of sporting events or award ceremonies that parents might otherwise assume are suitable for kids. I wonder if this assumption is a fair one when award shows like Oscars and Golden Globes typically feature the celebrities characterized by Justice Scalia (in FCC v. Fox Television) as the "foul-mouthed glitteratae from Hollywood" and when sporting events not infrequently result in brawls, serious physical injuries, or furious gestures and swearing from angry players, managers or coaches. In any event, as Steven Pinker notes in a recent piece in the Atlantic "in a free society, these annoyances are naturally regulated in the marketplace of people’s reactions—as Don Imus, Michael Richards, and Ann Coulter recently learned the hard way. It’s not clear why swearing on the airwaves should be the government’s business." I think the same is true of the ads that are the focus of Rep. Moran's legislation. If they make enough viewers turn off the TV, or forego watching a particular show in the first place, networks won't air them then (or perhaps more likely, will work harder to adopt technologies that will make the ads shown during a broadcast specific, and acceptable, to the audiences watching them).
New law schools and old universities
Dan Filler follows-up on my description of recent events in the FIU dean search with an excellent contextual point that we both are sharing: One of the challenges for a new law school working itself into an established university is educating the university about the ways in which law schools are different--explaining differences in compensation, hiring commitments, status, teaching load, scholarship standards, etc., and getting the university to understand and accept those differences and incorporate them into the operation of the university.
We have most consciously dealt with this in the promotion and tenure process--explaining why five medium-to-long pieces in student-edited journals satisfies productivity norms in the legal academy and thus warrants tenure. Fortunately, the chair of P&T has taken this education function very seriously and been very precise in how candidates and their records are framed so the provost understands that, in the realm of legal academe, this person is tenure-worthy.
Perhaps some of the confusion we have had in the dean-search process (especially as to the application of the Sunshine Laws to these faculty-centered elements) can be tied to an absence of a similar precision in performing that education function.
Conversation about religious liberty and civil unions
As I mentioned the other day, Geof Stone, Martha Nussbaum, Doug Laycock, and others (including me) are having an online discussion about Stone's recent op-ed regarding civil-unions and religious liberty. Check out the latest posts by Geof, Doug, and me. While you are at it, take the time to read Dale Carpenter's long post on the matter, here.
UPDATE: Andy Koppelman weighs in, here.
Test What You Teach, Yes. But Test HOW You Teach? Not Necessarily.
The comments on "bad exams" have been fascinating and useful. As one commenter noted, many law professors know more about the "law" part of the job title than the "professor" part. In some cases, they learn from experience; in others, they simply repeat bad habits over the course of a career. So it's very valuable to get some student (and professorial) insights into how things can go wrong with respect to an exam.
Wednesday, May 06, 2009
Greenawalt, Hamilton on the Rule of Law and Religious Exemptions
I learn through Paul H. that there is an interesting exchange between Kent Greenawalt and Marci Hamilton in the latest issue of the Cardozo Law Review. Greenawalt responds to some of Hamilton's arguments in her 2005 book, God vs. The Gavel: Religion and the Rule of Law, and Hamilton replies to Greenawalt's criticisms. The exchange is a lovely example of how two scholars writing in the same field, about the same issue, and ostensibly about each others' views on the same issue, aren't really speaking the same language. One is from Venus and one from Mars. Below the fold, details of the exchange and a bit of discussion.
Greenawalt wants to talk about whether and how religious exemptions might comport with various ideas of the rule of law. He begins, as anyone must when discussing the idea of the rule of law, with the observation that the concept itself and the values that it embodies are not so very easy to pin down. Greenawalt proceeds with a careful discussion of different ideas associated with the rule of law, from the formalist core to the more contestable notion that the law ought to be exceptionless, to, finally, the even more contestable idea that a law which does not comport with the "common good" -- or some view of sound morality -- violates the rule of law. This last conception of the rule of law Greenawalt, following Ronald Cass, would not consider part of the rule of law because that sort of formulation would dilute what is distinctive about the core.
Unless one concludes that religious exemptions from generally applicable laws are never justified (a position that Greenawalt obviously rejects -- does anyone accept it?), the real question -- where the rubber meets the road -- is when they will be justified, what are the circumstances that justify an exemption. Greenawalt reads Hamilton charitably as arguing that exemptions are only justified when they cause at most "de minimis" "harm to others" (the charity is indeed ample, since Hamilton states at least once that they ought never be granted, period). For himself, Greenawalt believes that anytime the rule of law is in fact a standard of law -- granting a considerable discretionary range -- the core, formalist idea of the rule of law is destabilized, because individual decisionmakers are left to make delicate judgments about how specific facts match up against the vague language of the standard. That is exactly the case with the Sherbert free exercise standard (now defunct, but partially resurrected by the Religious Freedom Restoration Act and its state analogues), which requires judges to determine whether a law imposes a "substantial burden" on a person's free exercise and whether the burden serves a "compelling state interest" that is "narrowly tailored."
In fact, the legal system, Greenawalt writes, is "shot through with elements that do not conform with a simple rule of law model" -- and for what it's worth, I agree entirely (though I have more than a strong suspicion that Greenawalt does not share my own skepticisms). The "standard of law" is, then, on Greenawalt's view, a pervasive and indelible feature of the American legal system that is in perpetual tension with the rule of law. And the key to negotiating the tension is, as in all of Greenawalt's work, nuance and delicacy in the face of particular facts that incline us more toward the hard-and-fast rule of law, or instead toward the discretionary standard of law. Privileges and exemptions that parents enjoy in respect of their children, for example, might be based on either a pre-political or a rights-based understanding, but there is little doubt that while a harm-oriented common good gauge of value must somehow figure into the picture, it can hardly be the whole picture.
It is this sense of nuance -- of the importance of motivations in assessing whether two cases are, in fact, alike -- that informs Greenawalt's discussion of religious exemptions. These distinctions are illuminated in his discussion of what to do with parents who believe that faith healing will cure their extremely sick children -- children who need medical care and who die because their parents failed to provide it (this is an area of heated interest for Hamilton). Does it matter -- ought it matter -- to the criminal law and to the rule of law that these parents did not intend the death of their children -- indeed, that they actually intended to save them? As a general matter, of course, such distinctions are relevant indeed in criminal law; they mark the distinction between purposeful and negligent homicide. But ought they be? Are they an example of treating like cases unalike? Here Greenawalt's discussion is rich and ambivalent: "If the crucial considerations come down to effective deterrence and competing views about 'just' punishment, we should not understand a well considered decision to exempt those parents from all or some forms of criminal liability as an offense to the rule of law (whether or not we actually agree with that decision)." The tension between the rule of law and the standard of law -- and the rival considerations of policy and principle -- cannot lead to a single, superimposed, and good-for-all-purposes conclusion in such cases.
As for Hamilton's response, she obviously wants to talk about different things. She talks about the superiority of legislators to judges in arriving at decisions about exemptions and the dangerousness of religion. These are themes that she has sounded repeatedly. She makes one profoundly, even gratuitously, dubious claims about her own work ("Harm arising from religious entities was unacknowledged, and even taboo, before the publication of God vs. the Gavel. There was a moral imperative in the culture that forbade negative talk about religion." Indeed? Can it be that 2005 was the year the dam finally burst? First God vs. the Gavel and then, just the following year and hot on its heels, The DaVinci Code.).
She does not want to talk about the rule of law and the various meanings it might have, and the various ways in which those meanings might be consistent (or not) with exemptions from generally applicable laws. She wants to talk about "substantive harm" and that people just don't see how bad religion can be. And since religious institutions cause harm -- and Hamilton is most able at documenting the evil done in the name of religion -- they ought not to receive any exemptions or, at least, the legislature ought to put their claims of exemption under the "common good" microscope before granting any exemptions. This is no surprise, I suppose. Hamilton's strength has always been the passion that she brings to her research and her deep knowledge of the abuses perpetrated in the name of religion.
Hamilton's comments bring back to mind some of my own criticisms of Hamilton's book in this review essay (non-novel, I know, I know) from a few years back. One of these was that Hamilton's conception of the common good is not very precisely specified. Another is that for someone who has so persuasively demonstrated the failures of the legislature to, as she puts it, "shoulder the[ir] responsibilit[ies]," it is confounding that she should be prepared to vest such unfettered trust in the wisdom of the legislature to make these assessments.
At all events, the exchange is worth reading, if only to see that the law and religion field is populated by different sorts of scholars making very different sorts of claims, drawing on their own strengths. Just like any other field, it seems.
Deans and Sausages: On conducting a dean search in public and correcting the public record
Back in February, I wrote about the early coverage of FIU's dean search, made public by the state's Sunshine Laws. I particularly complained that the coverage was likely to be inaccurate for the same reason much coverage of the judicial process is inaccurate--the press is not very good at capturing niche or nuanced events, nor is it very good at reporting process stories or the effect that process has on outcomes. Dan Filler similarly criticized the potential mischief that comes with subjecting a process such as a dean search to the Sunshine--as he put it, giving the world an opportunity to see us making sausage.
Thus far, we have met five candidates, with a sixth coming at the end of this week. On Monday, the faculty met to vote its preferences on each candidate. The meeting was opened and noticed under the Sunshine Laws. And the next day, accounts appear that are inaccurate or at least not reflective of process and nuance. The gist of the accounts is that Alex Acosta (the current United States Attorney for the Southern District of Florida and the candidate that everyone around here cares about) was deemed "not acceptable" by a majority of the faculty (he was nixed, in one commentator's words). Two candidates--Prof. Joel Friedman of Tulane and Dean Jose Juarez of Denver--were found "acceptable," or, as one story stated, they were the only two found to have "superior academic chops." It also was reported that the vote, although not binding was "traditionally . . . seriously considered."
And once again, nuance and process were lost in inaccurate or incomplete news accounts. People are watching sausage being made here, but media accounts do not provide the context of the sausage maker, especially the unquestionably unique sausage maker that is FIU. So allow this post to correct at least some of the public record.
We did hold a sense-of-the-faculty vote on the five candidates we have met thus far (the final candidate will be considered at a second faculty meeting next week). But under the rules established for the vote, there was explicitly to be no characterization of the outcome; there was to be no determination or declaration that anyone was acceptable or unacceptable. The rules did not establish any numerical threshold for acceptability (on faculty-hiring votes, we always know that acceptability requires 2/3--and no one reached that mark). The fact that it is being reported as a finding by the faculty of the acceptability or unacceptability of any candidate is wrong because no standard ever was established to define acceptability. The reporter unilaterally decided that 50 % (rather than 2/3 or 40 %) was the threshold, with no basis for the conclusion.
Similarly, the lede in one paper stated that the faculty "didn't want" Acosta as dean. But again, there was nothing that defined at what point a candidate became wanted. And since we also did not rank-order anyone, there was no statement of preferences and thus no statement as to who we wanted or did not want as dean. The vote simply was supposed to reflect the unadorned numerical opinion of faculty members as to individual candidates--running alongside individual statements of views that we were invited to present directly to the provost. And it certainly was not a finding as to anyone's "academic chops."
The Sunshine Laws created a second bit of mischief that was not addressed in the articles. University counsel rendered the opinion that, to comply with the laws, the members of the law faculty who are members of the Search and Screen Committee (five people out of a committee of nine) had to either publicly declare their votes (all other ballots were secret) or not vote. They chose the latter so as to protect two untenured committee members from having to declare their preferences. But, as a result, 15 % of the faculty members present at the meeting were unable to express their preferences on the same terms as other faculty members--a number that might have shifted the outcomes on several planes. The question now is whether and how the views of these five faculty members will be presented to the provost and considered in conjunction with the votes of the rest of the law faculty in order to get a true "sense of the faculty."
Third, there is no way to conclude that the faculty vote is "traditionally" "seriously considered" because a faculty vote on a dean candidate is a totally unique animal at FIU. Deans here historically are selected without corporate input from the faculty as a whole; the faculty is represented on the search-and-screen committee (always chaired by a dean from a different college) and individual faculty are given the opportunity to weigh in on their preferences for the provost's consideration. But no other college here ever has had this type of sense-of-the-faculty vote--precisely to leave the provost with the freedom to choose without running into cries of faculty governance. And since this is the first time the College of Law ever has searched for a dean, there is no "tradition" at FIU (whatever the effect of similar votes at other schools) of how such votes are treated. I have no doubt the provost will consider the vote totals (as the provost said in one of the articles). And ABA accredidation standards provide that a dean should not be hired who lacks the support of a substantial majority of the faculty (whatever that means and whatever the final numbers look like, after the additional five faculty members have been heard from), at least without good explanation. But I do not believe it is accurate to suggest that the vote will be any more controlling than the other pieces of information provided to the provost.
Dan Filler is absolutely right that giving the world a window into the process is a bad idea (a point he made back in February and again today). I believe the problem is less giving the world a window, than the inaccuracy of the window. But I am not sure how we can get or ensure accuracy in such a unique process.
Greetings from the birthplace of pornography!
When you think of Cleveland, what do you think of? Skyrocketing unemployment and rampant real estate foreclosures? The Cuyhoga River burning? Or -- if you're really paying attention -- the site of the first-ever successful near-total face transplant in the U.S.?
How about the fertile birthplace of our modern First Amendment jurisprudence? Ok, so maybe I'm exaggerating, but it was in a suburb of Cleveland that, fifty years ago, Louis Malle's The Lovers caused an enormous stir and eventually gave rise to the Supreme Court case of Jacobellis v. Ohio and Justice
Powell's [oops] Potter Stewart's dictum "I know it when I see it." In fact, my colleague Jonathan Entin gives away a "legal history tour" of Cleveland every year as his contribution to the public interest auction, in which he takes students around to the many landmarks marking the many landmark Supreme Court cases to come out of this town. (Mapp v. Ohio, for example, which was also an obscenity case, arose in Cleveland.)
And lest you think the title of this blog post was pure sensationalism, I'll also point out that Cleveland can claim as its own this guy, once called "the Bill Gates of porn" by U.S. News & World Report. (And we all know how reliable that publication is.)
-- Also, thanks to Dan, et al. for inviting me back as a guest blogger this month. (I hope they're not regretting their decision!)
Citizenship and the U.S. Territories
Thanks to Dan and Prawfsblawg for letting me stay a little while longer. I have enjoyed blogging about critical race theory, immigration and other law-related matters (here and here). I look forward to blogging some more about race and immigration law as well as my research and writing projects on property rights and citizenship.
To begin, I am currently writing a law review article that focuses on the rights of persons who live in the former and current U.S. territories, particularly regarding the nature of their citizenship. I have a draft of a paper, "Examining Birthright Citizenship in the U.S. Territories," (I will post on SSRN at some point) which explores claims by individuals that they were U.S. citizens at birth because they were born in the Philippines when the archipelago was a U.S. territory (1899-1946). Specifically, they argue that they acquired citizenship by virtue of the Citizenship Clause of the 14th Amendment. I will be presenting this paper tomorrow at a symposium, "Contested Citizenship," at the University of Oregon School of Law. The syposium is sponsored by the Wayne Morse Center for Law & Politics and organized by Professor Michelle McKinley.
Courts have consistently rejected these birthright citizenship claims from the Philippines, with the most recent one, Lucidine v. Winter, decided in March. The Citizenship Clause provides that a citizen of the U.S. is one who is born "in the United States" and "subject to the jurisdiction" of the U.S. Although courts have recognized that the Philippine Islands were under U.S. sovereignty during the territorial period, they have held that the Philippine Islands were not part of the U.S. Utilizing a century-old line of cases called the Insular Cases, courts have held that the territorial scope of the Citizenship Clause is limited to the fifty-states. My paper critiques the continued reliance on the Insular Cases and argues for reconsideration of the interpretation of the Citizenship Clause as applied in the territories in light of Boumediene's non-formalistic approach to understanding the application of rights outside of our borders.
Cases concerning the former and current U.S. territories are generally ignored in the textbooks. We should pay attention to them, however, because they provide a more nuanced view of constitutional rights. As cases involving the rights of persons detained in Guantamo and litigation concerning whether Senator John McCain is a natural-born citizen have demonstrated, questions about what rights are available in the U.S. territories continue to shape constitutional jurisprudence.
Has Hillary Seen Godfather II?
This classic is among 25 films highlighted in an article listing the best films to address foreign policy issues. I like to show film clips in my classes, so this list may provide a few ideas. A colleague of mine likes to show the bank robbery note scene in Woody Allen’s Take the Money and Run, which is hilarious. Filmed in mock documentary style, Allen, as Virgil Starkwell, unsuccessfully attempts to rob a bank with a misspelled note that reads, “Please put $50,000 in this bag and apt natural, because I am pointing a gub at you.” Instead of fearing the robber, the tellers and bank managers are too busy trying to decipher Virgil’s handwriting to heed its contents. Does anyone else like to use clips in class?
Is legal theory a comedy? Is it true, as Sandy Levinson has observed, that legal theory's raison d'etre is commonly thought to be the never-ending supply of "happy endings to legal dilemmas" and the solution of people's problems -- tidily and without disruptive remainder whenever possible? Is legal theory intrinsically "progressive" in the literalist and non-(overtly)-ideological sense that it ought invariably to be concerned with some conception of "progress" -- improvements, resolutions, innovations, rethinkings (blessed neologism), bigger and better policies for happier and more fulfilled times, smarter and more effective and ever-suffused with the odor of doggedly optimistic cheerfulness and the certitude that it is doing the world a great favor? Must this be legal theory's orientation or, perhaps better, its objective, and is it even coherent to speak about tragic legal theory, let alone a legal theory of pessimism?Jack Balkin has written that the Constitution may well be a "tragic document" and that the explanation for the nearly universal attraction of comic theory may be its psychologically assuaging properties. For Professor Balkin, in his essay, Thirteen Ways of Looking at Dred Scott, the question of the tragic quality of the Constitution quickly becomes one about the prospect of the possible inevitability of our "collaboration with evil."
But there may be less dire questions to ask. One of these might be whether legal theory is valuable independent of the practical ends that it may or may not achieve -- that is, does legal theory have intrinsic value? Does it have value if it does not solve the world's problems, if it does not innovate and improve, or even if it does not aspire to do so? What if one's legal theory doesn't help one make better judgments, what if it aims merely to offer an explanation -- just an explanation, and certainly not the only one, to say nothing of the best one -- for why something might be the way that it is? If one's legal theory cannot solve a problem in the way that the problem of the number nine can be gratifyingly resolved into three equal sets of three, is that simply an indication that the theory requires "rethinking"?
In law and religion clause scholarship, an area of interest to me, where the structural tensions inherent in the religion clauses only contribute to the considerable difficulties that any attempt to theorize about them confronts, legal theory has displayed a noticeable propensity for comedy. The idea seems to that the more difficult it is to theorize, the more possible it must (must!) be -- if only the right balance is struck, if only we were smarter, fairer, and more clever in our responses, more attuned to the protean pressures of pluralism and other social phenomena, if only we were more reasonable, and our thinking less clouded, all of our theoretical aspirations could be sated. We could stop wishing, wistfully, with Apollo, that Daphne's hair were neatly arranged -- because she finally, after so much resistance, had acceded to our ministrations.
I am sounding themes now from the work of Steven Smith. But while it seems to me that Professor Smith announces a kind of curtain call for comic legal theory, I wonder whether he is still a part of the play. Like the clown Canio at the end of Leoncavallo's Pagliacci ("The Clowns"), who exits the stage (littered, at that point, with bodies) with the line, "La Commedia e' finita," the skeptical view of scholars like Professor Smith seemingly aims to augur the end of legal theory as a necessarily comic enterprise. But need legal theory be comic? Even if skeptics like Professor Smith are right, perhaps legal theory has other paths to tread.
Footnote: Any other real or imagined association between legal theorists and clowns is hereby disclaimed.
Tuesday, May 05, 2009
I'm delighted to be back for another stint blogging. I'm a little slow off the mark this month, due in part to participating in Prawfs! 5 at FSU last week (though it hasn't stopped Paul and Rob, two of my fellow participants). But I've also been writing -- OK, rewriting and worrying about -- my final exam. As much as we dislike the fact, testing and grading are two of the most important things we do; they matter enormously for our students, and for that reason we need to get them as right as we can. Hence, at least for me, the constant fine-tuning (to put an optimistic spin on it).
So here's my question, for current and former students: what did you hate most about a final exam you had in law school? (For profs, what's the biggest mistake you have made in writing an exam?) I'd love to hear comments more specific than "the exam was too long" or "it didn't test on what the the professor stressed in class," though precise examples of those faults are welcome, too. Sloppy drafting? Unreasonable expectations? Politically-biased questions? Distracting fact patterns? I know some of this has been aired with a few recent posts about particular exam-writing and grading issues, but I'd like to throw the topic open for a more general discussion, especially since exams are presumably on everyone's minds now. It may be too late for comments to affect how exams are written this time around, but maybe something will stick when we sit down in November and draft our next round.
On the Brilliance of People like Judge Sonia Sotomayor and Barack Obama
Let me start with the obvious conclusion that anyone would draw if they were to get to know Judge Sotomayor and her work both intimately and deeply: she is an absolutely brilliant jurist and an absolutely brilliant person. Having clerked for her, worked very closely with her over the course of a year, and then known her well for more than a decade, I have a very good take on who she is both as a judge and as a person. Ordinarily, I would not weigh in on things like this, but, given some of the spurious comments that have been emerging from people who are less familiar with her, I feel a need to set the record straight.
I count myself privileged to have 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. (Others who have stood out in this way in my experience would include Harold Koh, the former dean of Yale Law School, and Peter Railton, a moral philosopher at the University of Michigan.) Judge Sotomayor is much smarter than most people in the legal academy, and much smarter than most judges who are granted almost universal deference in situations like this. And while I have worked with numerous people who are thought of as some of the best minds in the nation, and about whom the question of brilliance would never even arise, most of them are—quite frankly—pedantic in comparison.
Indeed, Judge Sotomayor reminds me in some ways of Obama himself in that she has surprising dimensions to her brilliance, which are completely original to her. She knows how to pull out the best in people with whom she works, how to motivate people through her words and conduct, and how to forge deep and abiding relationships with people from all walks of life, and from all political stripes and ideologies. She is courageous and fearless, but non-ideological, and wholly unimpressed by the kind of pomp and false theoretical excess that can sometimes make one look smarter in the short term but only at the expense of distorting the underlying issues. One measure of the extraordinary judgment she has is reflected in her incredible life story: she moved unerringly, and without any hint of doubt or hesitation, from the Bronxdale Public Housing Projects to graduating summa cum laude from Princeton, where she received the Pynes Prize (for their top graduate), and then to Yale Law School, the DA’s office, and the Second Circuit Court of Appeals. The force of character that it takes to live such a life should never be underestimated: we have no other person on the bench with her experience and intellect who has come from these beginnings and who has developed with such clarity of purpose and vision. The federal judiciary houses a number of intellectual giants, but, if we are honest with ourselves, we will have to admit that almost none of them would have made it to where they are from her starting point. The temptations to take other paths would have been far too strong, and the absence of hope too stultifying. Because of this, she also has the power to lift people up, and inspire. Her story can bring unique hope to many for whom there is only despair; can help heal some of the deepest internal crises of faith that people struggling in this country have had to face; and can establish the fact (about which there is still far too much unwarranted skepticism) that brilliance comes in many surprising forms. She can also give a concrete face to the American promise, and what we stand for as a country, and to the kind of change that will bring us directly back to our core human values.
Like Obama, there is thus something special and incomparable about this woman—though it lies in qualities that are not always seen by those who do not know just where to look. In my view, the level of conviction and independence of mind that Judge Sotomayor displays is absolutely essential to the best work of a Supreme Court Justice, but it is in short demand, and rarely have we seen it on such full display in the federal judiciary.
Given these facts, I should probably be less surprised than I am to see some of the initial reactions to Judge Sotomayor mirroring early reactions to Obama’s presidential candidacy. Early in the last primary season, I remember a number of people saying that Obama was not “as smart” as Hillary Clinton—at least until people began to catch onto his sheer genius at things like (1) reframing seemingly intractable issues in ways that might move us forward and out of stale debates; (2) identifying and articulating the core values of social practices in ways in ways that people who were once skeptical find compelling; (3) charitably understanding the fullest range of seemingly diverse positions, and the kinds of concerns and warranted hopes that lead to their articulation; and (4) maintaining humility, and a sense of calm and perseverance, in the face of seemingly insurmountable difficulties. (These are rare forms of brilliance, which Judge Sotomayor also has in spades—but that very few on the federal judiciary can claim for themselves. They are also not qualities that one will typically see if one is a law clerk for another judge who receives suggested revisions on one’s work from another judge; or if one is an attorney, who is less than prepared before a judge who has particularly exacting standards of excellence.) I also remember a number of people talking about how Obama rubbed senior colleagues in Congress the wrong way, when he—like Judge Sotomayor—displayed his native brilliance from the very start of his tenure in some ways that others found unsettling. And I remember how some on the left expressed concern when Obama began to break the mold of democratic thinking, by drawing on his independent but genuine insights into how people work and mobilize in socially productive ways not only in urban but also in rural settings, to help push our collective thinking on matters of genuine importance. I will confess that I myself did not see the full range of Obama’s brilliance at first, and that these things only began to become clearer to me after hearing his speech in Iowa and after Ted Kennedy came out letting people know that there is something special about the man. But whereas Obama had an extended campaign period in which to introduce himself to people, and to overcome some of the difficult but inevitable first impressions that arise with brilliance in this form, Judge Sotomayor is being maligned by people who do not know her, and who may not be able to see of all of her qualities from afar. I am—of course—no Ted Kennedy, but I do know what Senator Kennedy was talking about with regard to Obama, and I see special qualities of precisely this caliber not only in Obama but also in Judge Sotomayor.
I suspect that some people on the left may be concerned about Judge Sotomayor because she may not be the “liberal antidote to Justice Scalia” that some have desired. But this is no indictment of her intelligence, but rather of their imagination. Getting at the truth in the law, and beginning to change the tone on the Court, will not involve concocting a distinct but overly general, and ultimately erroneous, theory of how things like meaning or interpretation work to counter Justice Scalia’s. Nor will it involve the development of ideas, or forms of expression, that increase the mutual sense of alienation and resentment among Americans in both parties toward one another. In my view, the standard liberal expectations for a great jurist are thus behind the times in many ways, and it is a testament to Judge Sotomayor that she would much more likely break the mold for such expectations and bring us all forward in the process. The time for endless tit-for-tats on the Court, as in politics, is coming to an end, and Judge Sotomayor would be the ideal justice to help move the Court into a newer, saner, more thoughtful, and more unified era. Indeed, she is perhaps uniquely qualified to do so.
To give you a sense of what I mean by some of the rare dimensions to Judge Sotomayor’s brilliance, let me quote several passages of a description I once wrote up of her in 2002, which begin to capture some of the social, emotional, and procedural brilliance that she has. After describing the judge’s tireless work ethic, and the sheer quantity of work she was able to produce, I wrote: “The ultimate secret of the judge’s success lay not in the quantity, however, but rather in the quality of the work she inspired. The judge made it positively enjoyable to struggle to reach better legal resolutions together, due to another rare and surprising dimension to her brilliance. Although we had come to the clerkship with very different backgrounds, strengths, and temperaments, the judge seemed to identify them almost immediately, to cultivate them and to create an atmosphere in which we each felt respected and as though we had something positive to contribute, coming from our own particular angle. We were some of the strangest of bedfellows, but the judge orchestrated an environment in which we all forged very real and lasting friendships with one another and felt comfortable deliberating with one another and engaging with one another’s ideas. We discussed each and every case with genuine vigor and concern that year, and the judge’s confidence gave us the confidence to push and develop one another’s thoughts to their limits. Have no doubt: the judge knew when to take the lead and when to rein us in. But she also helped us to see that we could have important ideas that, with the appropriate development, would help to push the envelope of the law and help clarify or harmonize legal doctrines in beneficial ways. The judge thereby taught us the brilliance that goes with creating an environment in which deliberation is free from insecurity, and reasoning is vibrant and sincere. The judge also showed us how valuable such a process can be, and how much it can add to one’s ability to perceive better, more probing and more honest answers to legal questions. With regard to her peers on the Court, the judge took the same basic approach, both at oral argument and in her interoffice correspondences. She thereby enlivened and enriched the tenor of the deliberations of the Court more generally. This is, without doubt, one highly tangible and pervasive way in which the judge’s presence has already changed the Second Circuit Court of Appeals, and has helped produce a better jurisprudence within the Circuit.”
I then continued: “The judge’s ability to bring out and draw upon the best in others and her confidence and perseverance are not ultimately unrelated qualities in her. It is the judge’s confidence that allows her never to be afraid or jealous of a thought that can help improve her reasoning or her views on things; and it is, in turn, her ability to identify and nourish such thinking, and to listen to sincere challenges to her own thinking, that allows her confidence to hit its mark and track the truth so unerringly. The judge is, in fact, extraordinarily generous in her crediting of others. During her induction speech for the Court of Appeals, in a room filled with senators, federal judges and other persons of relative power and social status, the judge went to great lengths to thank not only President Clinton, the senators, her peers and her legal mentors for helping her attain her numerous judicial accomplishments but also, in equal detail, the fed cap employees who had kept the hallways and chambers clean, the cafeteria staff, the security officers who had watched the doors to the courthouse and the numerous other persons who were part of the vast web of relations upon which her work had in fact depended from day to day. She was not afraid to acknowledge the genuine role that each person had played in allowing her to succeed as a judge, regardless of the person’s perceived standing in the room, and her heartfelt expressions of gratitude had the power to motivate. The judge also spoke of her mother, and of how her mother had worked extra hours as a nurse in a methadone clinic to save up enough money to buy the judge and her brother the one set of Encyclopedia Britannicas in the Bronxdale Public Housing Projects, where the judge had been raised; the judge spoke of her committed and lasting friendship with Theresa, her secretary, who has enriched all of our lives and has helped cement all of our relations with one another; and the judge spoke of family and love, including that of her mother for the man her mother would marry that night. Anyone seeing the amount of goodwill toward the judge that filled that room, arising from every type of person with every type of background, could not help but get a sense of the very real power that the judge had invoked through her sheer force of character. One began to get the sense that, without even trying, the judge had created and could move a small but silent army. What makes the judge’s courage really shine, then, is that it involves the courage not only to express views that are worthy of consideration but also to listen, to be open to reason and to validate and acknowledge contributions that others can make to her own development and thinking. We are all better for having a person with her type of character in a position of power.”
Lastly, but importantly, Judge Sotomayor is a genuinely good person, with an enormous heart. She is incredibly skilled on levels that push every imaginable envelope, and I really do hope that people will get to know who she is before taking the easy route of discrediting that which they do not yet understand.
Professor Kar is a Professor of Law and Philosophy, and the Thomas Mengler Faculty Scholar, at the University of Illinois in Urbana-Champaign, beginning in the Fall of 2009.
Students and Prawfs' Politics
Last week, Eric blogged about an experiment in which he surveyed the students in one class to find out what they perceived to be his political leanings. He found the students were all over the map. The post received some good comments to the post, some pointing out the benefits to the experiment and one commenter stating he would have demanded a refund for a "ridiculously self-important exercise in conceit."
But Adam Benforado, guesting at The Faculty Lounge, suggests a different way in which the information Eric sought might be of interest. Adam points to an article in The New York Times last weekend in which Obama's former students tried to predict what kind of Supreme Court justice he is likely to appoint--based largely or exclusively on their perceptions of him from class. Adam pointed out that students spend a lot of time trying to guess their prawfs' politics, although not very successfully. Adam reports (indicating he inquired in a way somewhat similar to what Eric had done):
I’ve had students absolutely certain that I was liberal, conservative, gay, straight, widowed, Christian, Jewish, and the owner of an Aston Martin (I wish), among other things.
So maybe the point of Eric's experiment was to give the students some grounding for when they are interviewed by The New York Times (or whatever replaces it) when President Eric Johnson is getting ready to name his first Court nominee.
A Survey Request from Hadar Aviram
Via Arts & Letters Daily, here is a fine article on the revival (and overuse?!) of the exclamation mark. The author suggests that the rise of ! is a creature of the Internet age. He quotes a recent book on the etiquette of email, which notes as a possible explanation that
Most Unusual Law Prof. Travel Experiences...
Given the immediate alternative of writing my law school exam, I would prefer to procrastinate and ask the following question: What have been the most unusual experiences that law professors have had traveling to or from conferences or other similar events? Here's my answer, but I invite others to procrastinate as well.
I was crazy enough to travel in 2000 to the Democratic Republic of the Congo to consult with an NGO on rule of law issues, and to make some presentations on the constitutions of different countries. I had been doing my fellowship in South Africa at the time. Upon arrival, I was supposed to be greeted at Kinshasha airport by a representative from the NGO to get me through security. Unfortunately, nobody was there. I kept backing up to the end of the line that was going through customs, hoping some NGO rep. would magically appear but without any luck. Finally airport security insisted I go through and I entered the airport terminal. But security was suspicious of my behavior in delaying at customs so I was asked to "join" the police officials in a side room for some "questioning."
Essentially, several police in a small room asked me what I was doing there and I told them. They responded that what I said made no sense because there were plenty of constitutional law experts in the DRC so why would they need an American. Then they started asking and accusing me of being CIA. Other than my speaking French, things weren't looking good. This continued for a while and they insisted that I offer proof. Nothing like proving a negative to the security police of a country in the midst of a civil war when you come from a country they don't like. So in desperation, I pulled out my law professor business card and showed it to them.
Miraculously, this resolved the situation. They relaxed and then became very friendly. Eventually, they let me go, though the trip into Kinshasha with a taxi driver and twp of his best "friends" still proved fascinating given the "price enhancements" involved to guarantee my safety. So what's the message? Never travel without your law professor business card. It's actually a life-saving device (akin to the police badge in the movies that always manages to stop the bullet). And know that the CIA is not perceived as clever enough to invent such a technologically complex cover.
The Next U.S. Supreme Court Film
With all of the discussions of late about the impending retirement of Justice Souter, I began to think about depictions of the U.S. Supreme Court on film. Although there have been many films about law and lawyers, only a few actual High Court cases have reached the big screen. One site cites to the following list:
- Gideon's Trumpet – A fictionalized account of the events of Gideon v. Wainwright, in which the Supreme Court held that an indigent had the right to court-appointed counsel.
- Amistad – Former Justice Harry Blackmun played the role of Justice Joseph Story in this fictionalized account of the real case, wherein the Court upheld the liberation of native Africans who had been kidnapped and brought to the United States after the importation of slaves had been prohibited.
- The People vs. Larry Flynt – The film features a fictionalized portrayal of the real case of Hustler Magazine v. Falwell, in which the Court found that the First Amendment protected the right of Hustler Magazine to print emotionally distressing (but unbelievable) falsehoods.
- Separate But Equal – A fictionalized account of the events of the Brown v. Board of Education desegregation case.
There have been many other interesting cases that have reached the U.S. Supreme Court, arguably with storylines just as compelling as those on the aforementioned list. Which ones would you recommend for film adaptation?
Is Empathy "Lawless?"
President Obama's statement last week about his criteria for selecting a replacement for Justice Souter garnered a significant amount of attention. Obama said he would "seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation." He added that a "quality of empathy, of understanding and identifying with people's hopes and struggles [is] an essential ingredient for arriving at just decisions and outcomes."
Style and Scholarship
Bill Stuntz's recent post on the virtues of nominating Pam Karlan for Justice Souter's seat on the Supreme Court has gotten some well-deserved attention in the blogosphere. Stuntz argues that Karlan, because she is a "spectacularly gifted" writer, would be a good counterweight to Justice Scalia, "whose outsized influence stems from his ability to write captivating, scathing, and often funny opinions." I couldn't agree more with this, and indeed suggested much the same thing last Friday, although I focused on how Karlan could parry with Scalia during oral argument rather than through her writing.
But here I wanted to talk about something else Stuntz says. At the end of his post, Stuntz makes a point about legal scholarship. He writes, "productivity and intelligence count far more heavily in academic hiring decisions than a knack for the perfect turn of phrase. That is a mistake. The legal and academic markets are filled to overflowing with smart opinions and law review articles. The ones that stand out are fun to read--and those are few and far between." I wonder what people think of this. My view is that style is wildly undervalued in legal academia, whether it's in hiring decisions or law review placement decisions or tenure evaluations or anything else that makes a difference in the legal academy. In my experience, although one sees from time to time a mention of a scholar's style in an appointments reference letter or a tenure evaluation letter, it invariably is thrown in as an afterthought, once the letter evaluates the scholar's (or potential scholar's) analytic skills, capacity for original thought, and productivity. Likewise, I can't remember ever being at a workshop where someone has made a serious comment about the style of a piece as opposed to its content.
Does this comport with other people's experiences? If so, is it something to bemoan? Shouldn't we care if someone can write beautifully or poetically? Shouldn't we want scholars to write with wit or passion? Shouldn't we provide incentives for such writing? Shouldn't we reward it?
Judicial writing, court structure, and the judicial process
Chad wrote yesterday about Bill Stuntz's argument that writing ability is an important (but overlooked) factor in selecting a Supreme Court justice because writing ability--as much as smarts and experience--define judges' influence. Let me take the point in a slightly different direction: How much should writing ability be considered in the scholarly literature on appellate decisionmaking? And how can it be taken into account as a variable?
I just finished reading an intriguing essay by Tracey George and Chris Guthrie (forthcoming in Duke Law Journal) arguing for a change to the structure of the Supreme Court, primarily by expanding the size of the Court (to 15 justices) and having most cases argued and decided in panels of three (with an en banc process for important cases, including those in which a state or federal law is challenged on constitutional grounds). This was a follow-up to a larger 2008 article proposing a panel structure for the Court (which I have not had a chance to read). They argue that the overwhelming majority of cases (almost 90 %) since 1953 would have come out the same if decided in randomly selected panels (based on how each justice voted), including in a high percentage of 5-3 and 5-4 cases.
But how does or should writing quality and the writing skill of different justices play in here?
Random re-distribution of justices into panels means random re-distribution of opinion-writing. It is likely that the original opinion-writer (or original dissenter) would not be on the panel. Or, if she were, she might not be assigned the opinion because the author-selection process will be different (in terms of who does the assigning, how assignments are made, and what other cases there were to be assigned). Prospectively, the distribution of opinions is likely to be different--subject to the randomness of panel selection, as well as the effects of a hoped-for increase in the Court's docket on who takes which cases.
This means responsibility for the opinion in a given case could be placed in the hands of a different author, for better or for worse. At a minimum, this might alter the political and precedential influence of the decision, accepting Stunt'z point (and I think I do) that influence beyond the Court is, in part, a product of the craft of writing. The effect an opinion will have in political, policy, and academic debates is a product of the quality and style of the opinion. The ease and consistency with which lower-court judges can apply a precedent depends greatly on the clarity, power, rhetoric, and overall quality of the Supreme Court opinion. Keeping things focused on Justice Souter, one need look no further than the mess created by his weak, all-over-the-map opinion on pleading standards in Bell Atlantic v. Twombly. The panel proposal might, incidentally, have its greatest effect on the work of the lower courts.
And what of the influence of writing skill within the Court? How, if at all, might changing authorship alter case outcomes? For example, imagine the panel in an 8-1 case now consists of the dissenter and two of the non-writing majority; if that dissenter is an influential writer (or no longer has to argue against the original influential writer on the other side), might she convince at least one of her colleagues to vote differently?
Prospectively, George and Guthrie assume that future justices will behave consistent with how they have behaved in the past, thus future cases likely will come out much as we predict from the preferences of the full current Court. But does the variable of writing abilities of individual justices alter that conclusion, based on which justices are assigned to which panels and how opinions are assigned within the panel and what cases justices take? Might a case that likely would come out one way if an influential justice (say, Scalia) is writing the majority opinion now come out differently if Scalia is not on the panel and not able to exert the influence of the pen?
I am not sure the answer to the question. And I am not sure it is measurable in any meaningful way. But I put it out there for consideration.
Pardon My Language
How often do you find yourself using foul language? Are the occurrences rare, or is your conversation rather peppered with variations on four-letter words? How many times have you slipped up in class (whether teacher or student)? When you hear such language, are you offended by it consistently, at times depending on context, or rarely if at all?
The Supreme Court last week upheld the FCC’s implementation of a rule permitting it to levy fines in the event of a one-time profane utterance. The FCC rule stems from what it once called a “fleeting and isolated” use of the F-word by Bono at the 2003 Golden Globes; the rule signaled the FCC's reversal of course on that position, on the heels of similar utterances by Cher and Nicole Ritchie.
The decision is, to me, questionable on a couple of fronts. The Court tabled the First Amendment issues, but in doing so left quite a bit of room for further contests. I wonder whether the non-sexual use of a term should be punished despite a standard that prohibits just such “context[ual]” use. I am also curious whether the FCC’s approved position is one that is detached from conversational reality (as pointed out here and here, the Court refrained from mentioning either of the two words at issue in the case once in the decision--perhaps an indication of such detachment). To that end, I return to the questions at the outset of this post (similar questions could be asked about standards concerning nudity; the Court today directed the Third Circuit to reconsider its decision against the levying of a hefty fine upon CBS for the Jackson/Timberlake “wardrobe malfunction”). Have standards changed with respect to what is thought of as indecent language (or is this guy still right)? If so, have they changed to a degree that would warrant the FCC being more accepting of “fleeting and isolated” uses of words (particularly words used in a non-sexual manner) rather than less? And be honest—how many times have you slipped up in class?
Monday, May 04, 2009
Social Justice Agonistes
In an earlier post, I blogged about the course that I taught this spring at Catholic University -- "Social Justice and the Law: Introduction to Catholic Social Thought" and some of the possibilities and challenges that it presented. I want here to discuss how I approached the course, what worked, and what did not.
But before getting to that, I want to respond briefly to Professor Kmiec's kind and generous intervention in the comments to my earlier post. I am grateful indeed that he has corrected the record about a few of the features of the course when he was Dean -- I ought to have checked with him on matters historical!
I also want to respond to the close of his comment, where he writes that I did not enjoy the "decanal enthusiasm and collegial effort" that the course mustered during his deanship.
I do so with a little decanal enthusiasm of my own. Dean Miles was enormously supportive of my ideas for the course in just the right way -- befitting exactly the new and somewhat experimental direction in which I thought to take the course. Indeed, it is fair to say that I could not have done what I did with the course -- I could not have tried the direction that I tried -- without the gentle guidance and enthusiasm that she offered.
I was also pleased to see Professor Kmiec mention by particular name Professor Pennington, Professor Wagner, and Fr. O'Brien. Each of these wonderful colleagues offered resources and supports of all kinds, as did many others. Each did so, as did the Dean, with abiding tolerance and wisdom -- recognizing that they were dealing with a headstrong novice who wanted to strike out on his own with the course a bit (nervous as he was about the results). I could not have asked for more from these friends.
Now to those results.
The fundamental problem for me was how to decide what substance to give the course. Of course, there are centuries of rich history and thought from which to draw, but the crucial difficulty was to achieve a scaffolding or structure in which the course could be taught coherently within its one-credit limits.
I decided on the following general structural feature: I would embrace the conflict. Faced with what I saw as the essential contestability of the idea of social justice, I would make the focus of the course precisely that contestability. The course would be one in various ideas of social justice and their relationship with various legal inquiries, and their irreconcilable conflict would be my binding substantive theme -- my structuring principle. Catholic intellectual views about social justice on a variety of subjects would be contrasted with opposing positions.
I drew some of the topics for the syllabus from a course taught by Professor Rick Garnett (who was gracious enough to share his scaffolding with me), and who (I recently discovered from Rick) in turn drew from a syllabus conceived by Professor Patrick Brennan (this was an appropriately non-novel approach to suit my pre-dispositions). Topics included the idea of human dignity; the relationship of politics, religion, and morality; the practice of law and ideas of social justice; and family, society, and the state.
But I added two features to the course, one substantive and one procedural, to reflect the theme that I had chosen. First, we spent two sessions on what I described as "meta-issues." These dealt primarily with what it is that "social justice" means, and with what it might have to do with a legal education. I included readings that probed -- sometimes in indirect ways -- the nature of legal education, and how it seemingly sits astraddle a number of different kinds of education -- university, liberal, vocational, practical, and so on. Stanley Fish's latest effort ("Save the World on Your Own Time") made an appearance, as did an old essay by Michael Oakeshott entitled "The Study of 'Politics' in a University" -- whose skepticism about the study of the "science" of politics now seems dated but whose criticisms might well be applied to innovatory fields of academic inquiry such as "social justice." The aim was to confront directly what a course like "Social Justice and the Law" was doing in a first year curriculum -- why have it at all? Is it a topic that can be studied academically? And what does it say about a school that it has such a course -- and is that something worth having?
The second feature was procedural. For almost all of the subjects that we considered, I aimed to have widely divergent -- but ideally, directly opposing -- viewpoints represented in the readings. So, for example, in the section on human dignity, I included readings by Professor Jean Bethke Elshtain (who writes as a Catholic, very much in favor of human dignity as a valuable ideal) and Professor Steven Pinker (vehemently against, as in his recent essay in The New Republic). In one of the classes on reliance on religious reasons in political judgment, I included readings by Professors Robert George, Geoffrey Stone, and Kent Greenawalt -- very much a Catholic view, very much a non-Catholic view, and very much a carefully complex view. I tried to balance intellectual probity with accessibility to the extent that I was able within the temporal confines of the course (difficult, given my ambitions for it -- more on that below).
The driving force was to cultivate a sense of the tensions and conflicts of social justice. I wanted students to feel the pain and struggle -- my pain and struggle -- in the face of the confrontation with such an unbearably large set of subjects -- which are the self-same subjects about which the Catholic Church has agonized over the centuries. Stuart Hampshire's little gem of a book, "Justice is Conflict" served as a kind of model for my approach -- for what I hoped my students would get out of the course and, in teaching them, for what I hoped for myself.
The primary success of the course was that a not shameful number of the students actually seemed to enjoy it. They appeared, as a general matter, stimulated.
The primary failure: As Professor Vischer points out so artfully, this project was too ambitious given the time constraints. The most common criticism that I received was that the time had already passed by the time that the lather had begun to foam up on any single idea. While I hope this did not engender resentment, as Rob suggests it might, I am fearful that it may have. On the other hand, I agree with Professor Kmiec's observation that the course served merely to introduce students to a set of inquiries and thoughts -- just a little taste. If they enjoyed that amuse bouche, a full banquet and more is available to them. If not, not.
Transformative Pragmatism and a "New" Constitution
Having written several posts on the South African Constitutional Court's socio-economic rights rulings, I want to suggest the Court has adopted an interpretive methodology that can be called "transformative pragmatism." Richard Posner, Dan Farber, and Suzanna Sherry are perhaps the most well known American adherents to a pragmatic constitutional methodology. The South African approach has some similarities and differences (and certainly Posner and Farber don't see eye to eye). The core idea agreed upon by South African justices, scholars, and advocates is that the Constitution was meant to transform South African society. I view this as similar to the Civil War Amendments in the U.S., which seem to get short shrift here compared to the "founder's" Constitution.
The Constitutional Court justices, however, have been pragmatic in how they implement transformation. Thus, they have handled socio-economic rights remedies carefully, and have rejected United Nations committee recommendations that nations set a "minimum core" regarding socio-economic rights. As a new Court, they had interests in institutional self preservation and legitimacy (they are not elected), they had few human rights case precedents, and they sought to avoid doctrinal mistakes. Justice Richard Goldstone told me in an interview that, "I...strongly believe that in the formative years it would be a serious mistake to craft wider opinions than necessary. It is far better to hasten slowly and be more certain of building a coherent jurisdiction. I have no doubt that principles should be clear but that is another matter." I call this the Hippocratic view (do no harm). They also looked to foreign law for guidance, as recommended by their Constitution. Another Justice described their approach to me as "minimalist maximalism" e.g. bring about real transformation, but do so cautiously unless a dramatic remedy is constitutionally necessary
To an American law professor, their Court's approach still seems bold in enforcing socio-economic rights, abolishing the death penalty, supporting gay marriage, etc. Most South African constitutionalists, however, have criticized the Court for not going far enough. Living with apartheid and its legacy would understandably explain some of their impatience. My book though argues that the South African Court's approach has been largely correct (it's interesting to see the typical academic-judicial divide in another country). It contrasts with the U.S. Supreme Court's formalism in areas like affirmative action (Gratz), the duty to protect (DeShaney), the death penalty (McCleskey), and socio-economic rights. I also argue the U.S. Supreme Court could have pursued a transformative pragmatic approach given the Civil War Amendments, the Ninth Amendment, etc. More examples will follow in later posts contrasting American and South African precedents, as well as addressing the current support for popular constitutionalism in the American academy.
Stuntz argues for Karlan & the importance of writing skills
Bill Stuntz recently put up a post advocating in favor of Pam Karlan for Justice Souter’s seat. In the course of his advocacy Stuntz makes the case for writing skills as an important (and generally overlooked) component of a justice’s influence. I think he’s onto something. I just finished my maiden voyage teaching Con Law, and was struck by the extent to which the really well-written opinions stand out. Stuntz’s post is well worth a read.
With the new month, we have a great new cast of contributors with both fresh and returning voices. For the first time here, we have Eugene Kontorovich (Northwestern), Kelly Anders (Washburn) and Marc Degirolami (Catholic en route to St Johns). And returning, we have Jessie Hill (Case); Bill Araiza (now at Brooklyn); Marc Blitz (Okl City); and Chad Oldfather (Marquette).
The Study of 'Social Justice' in a Law School
I have been very fortunate to teach as a VAP this past year at The Catholic University of America, Columbus School of Law. I will be forever grateful to the school and the wonderful people there -- Dean Miles, my colleagues and friends, and my students -- that gave me my first chance.
This spring I was asked to teach a course titled, "Social Justice and the Law: Introduction to Catholic Social Thought." The course was, so I am told, the brainchild of Professor Douglas Kmiec when he was Dean of the law school roughly a decade ago, though it went by a different name that did not include the phrase "Social Justice." When he was Dean, Professor Kmiec taught all sections of the course. Since its inception, the course has had the following characteristics:
- It is a first year course
- It is a required course
- It is worth one credit (it meets 50 minutes a week)
- It is graded on a curve
- It meets in sections of about 40 students (this was the case for the two sections that I taught, though apparently it is not always the case)
Beyond that, and as the course stood when I taught it, there were no other fixed requirements. I was free to create the curriculum from scratch or to use a tried and true approach (many colleagues were very generous in offering their materials and views). I was free to include as much or as little Catholic material as I liked, provided that I included something. I was free to give the course a guiding theme or not. I was free to employ whatever form of student assessment I desired. For someone in his very first year of teaching, this was both a fantastically unique opportunity (I am free to teach and talk about whatever I want. Incredible.), and more unsettling than one might think (I am free. I am alone. I am uncomfortable).
As a general matter, the course - at least historically -- has been wildly unpopular with students, and this for a number of reasons that sometimes are combined in students' minds but can stand perfectly well on their own:
1. More than a few students think that the course is a complete waste of time -- and perhaps oppressive to boot -- no matter the curriculum chosen. The 50 minutes a week and the time spent to prepare for it would be better spent studying for core classes (or watching talk shows, getting beers, and so on). If they were interested in the questions of philosophasters about human dignity, being nice to other people, and the like, they wouldn't have come to law school.
2. The Catholic focus of the course is offputting to some, particularly if students feel that the line between teaching about Catholicism and teaching Catholicism is not carefully observed. This is a concern for many students, but it is a special concern for non-Catholic students, of which there are a fair number.
3. There is no unified curriculum. Some students feel that it is not fair that the curriculum for a required course should vary so dramatically from one professor to the next. In no other required course is there the potential for such wide disparity.
4. The ambitions of the professors who teach the course are altogether unrealistic. Too much reading -- of whatever sort -- is assigned given the numerical heft of the course.
These difficulties, in differing degrees, for different students, make the course challenging to teach and to take.
I want to set reason 4 aside. Overly optimistic assessments about what students are capable of digesting from week to week are a problem that I was unable to negotiate with unfettered success, but there is nothing particular about them to this course.
The essential difficulty with the course -- the overarching reason that it meets with consternation from students and faculty alike, but manages somehow to soldier on nevertheless -- is that the course simply cannot be all things to all people. Assuming that it merits a place in the required first-year curriculum (and there may be good reasons to challenge that assumption), it is inevitable that a course like this must take some type of stand on more than its share of contentious issues -- issues which cut to the quick of the nature of legal education itself. It borders on the impossible to approach the course neutrally (if that is ever possible), as there are irreconcilable conflicts of aims that the course brings into high relief. A few of them:
- If one makes it very much a Catholic course, what of the students who are sensitive about their own religious identities? Does one include other religious and non-religious views? Does one give each view equal time? But then the course ceases to have a Catholic emphasis, and if such an emphasis is ever warranted, presumably it is warranted at the Catholic University of America.
- What does it mean to make it a Catholic course? Does it mean to teach the Papal Encyclicals? Catholic Social Thought since Pope Leo XIII? The Catechism? The Bible? Does it mean to focus on ethical concerns? Church/State issues? Something else? Assuming that at least some of these matters ought to be included, in what context? Historical? Philosophical? With an eye toward present political concerns? With an eye toward present legal concerns? Some mix? Whatever choice is made not only gives the course a definite coloring but also, and more importantly, entails loss of a kind not easily measured.
- How ought the term "Social Justice" be taken? This is a particularly scorching topic. Social Justice -- usually embodied in legal clinics and other good-works activities -- has been the welcome object of particular emphasis at CUA, thanks to the special attentions of Dean Miles and many of the devoted CUA faculty. Yet in a course about ideas (and I am assuming that the course must be one in ideas) Social Justice can carry with it certain ideological presuppositions and valences. How ought one to "study" Social Justice? How ought one to handle the issue of ideological tilt that seems to drench the subject? Should one ignore it? Spell it out?
- Related to the previous thought, Social Justice seems to accommodate a multiplicity of contested and internally incompatible ideas, moods, and predispositions. In fact, it seems to me to be an excellent example of what Jeremy Waldron (following W.B. Gallie) has called an "essentially contested concept" -- a concept that is "present to us only in the form of contestation about what the ideal really is." The idea of Social Justice is not only "hotly contested" -- with varying conceptions challenging one another for supremacy. It is, as Waldron has said, "contestation at the core." Should one take only one of these conceptions as the focus of a course like this, or many? Should one be self-conscious about the choice made with one's students? Should one try to promote or advance a favored conception? If so, should one do so explicitly? Does the course cease to be one in ideas if it is a course promoting a single idea?
- What is the relationship of legal education or the practice of law to any of these ideas or conceptions of Social Justice? Should a course that styles itself "Social Justice and the Law" take the conjunctive seriously? Even if it aspires to say something about the relationship between the two, what should it say? Should it take the full measure of the range of viewpoints about that relationship -- from the pessimistically skeptical to the cheerfully harmonized? Should its surveying aims be more limited?
In a post to come, I will discuss what I decided to do with the course, what succeeded, and what failed.
Actuarialism, Individualization, and Fairness
It is perhaps not surprising, given my strong support of evidence based practices, that I am an advocate of actuarial models. So it is easy to imagine my despair (or at least irked annoyance) when I came across the following passage in an appellate opinion from Indiana (which I read while preparing for this):
The use of a standardized scoring model, such as the LSI-R, undercuts the trial court's responsibility to craft an appropriate, individualized sentence. Relying upon a sum of numbers purportedly derived from objective data cannot serve as a substitute for an independent and thoughtful evaluation of the evidence presented for consideration. As our Supreme Court recently noted in discussing the appellate review of sentences, "[a]ny effort to force a sentence to result from some algorithm based on the number and definition of crimes and various consequences removes the ability of the trial judge to ameliorate the inevitable unfairness a mindless formula sometimes produces." Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.2008). Therefore, it is an abuse of discretion to rely on scoring models to determine a sentence.
1. An "individualized" sentence. There is simply no such thing. I think that Frederick Schauer's Profiles, Probabilities and Stereotypes should be mandatory reading for all law students. No decision is made in isolation: there are always background assumptions and probabilities lurking. Take an example from a recent lunch-table debate I was involved in. A witness to a crime tells a police officer that a mugger was a white man, 6 feet tall with curly hair and a blue windbreaker. A few minutes later and a few blocks away, the officer stops someone who meets these details, and justifies the stop based on his "individualized suspicion," given the description.
But, of course, there is nothing individualized about his suspicion at all. There are host of generalities behind this decision to stop. For example, the officer is assuming that the witness gets race, height, and clothes roughly correct. If he knew that a majority of witnesses misidentify the race of an assailant, then he would not have "individualized" suspicion. Any sort of so-called individualized assessment is actually a comparison of specific characteristics to generalizations. So to say that an algorithm is in tension with individualization is completely wrong. It is just a question of which algorithm we're going to use: the ones in our heads, or the ones on the computer screen.
2. The "unfairness" of generalities. This is common argument against actuarial models. The model can only take into account the traits it is programmed to consider, so what happens when there is a relevant factor that isn't in the model? This is sometimes referred to as the "broken-leg problem." Assume we have a powerful model that predicts whether someone is going to go to the movies on a Friday night. The model predicts that Joe is going to go, but he doesn't. Why? Because Joe broke his leg on Thursday, and the model didn't have a "broken leg" item. The argument is that we need human judgment to take into account these idiosyncratic outcomes that the model isn't programmed to recognize.
But this is a variant of the Utopian fallacy: that an actuarial model isn't perfect doesn't mean it isn't better. Sure, in Joe's case the model fails and human judgment could have reached a better outcome. But what about the host of other instances in which the model reaches a better or more accurate conclusion? Models can be mis-specified, but human judgment is biased and flawed. Both have their problems. Individualization is nothing more than a comparison with generalities, and the actuarial turn has made it clear that, on average, well-designed models make these comparisons better. So the occasional broken-leg error is swamped by the run-of-the-mills successes.
Sunday, May 03, 2009
Sunday Music (Cover) Blog (or Against Novelty Too)
Many thanks to Dan and company for inviting me back.
I'm planning to spend most of my time here this month blogging about law teaching and technology. But Marc DeGirolami's terrific post below inspired me to join the rebellion against "the ideology of novelty" in a different way -- by opening a thread on favorite cover songs. A cover, as Wikipedia tells us, is "a new rendition (performance or recording) of a previously recorded, commercially released song."
So, in the tradition of previous Sunday music blogs here and elsewhere in the legal blogosphere, I thought I'd celebrate the value of "derivative reaction" with a list of places where it has produced interesting and enjoyable music. Please feel free to add examples and recommendations of your own in the comments (with extra points awarded for comments that take the derivation a step further and identify favorite covers of covers, reviews of review essays, or derivatives of derivatives (second derivatives) in calculus examples).
Here's my own randomly-generated list:
Pop Will Eat Itself’s cover of Shriekback’s “Everything that Rises (Must Converge)” (title borrowed from Flannery O’Connor)
Jethro Tull’s cover (of sorts) of Bach’s “Bouree in E minor”
Big Star’s cover of Nat King Cole’s “Nature Boy” (originally by eden ahbez)
Bad Astronaut’s cover of Elliott Smith’s “Needle in the Hay”
Ed Kuepper’s cover of Johnny Cash’s “Ring of Fire” (originally by June Cash and Merle Kilgore)
Crosby, Stills, and Nash’s cover of Joni Mitchell’s “Woodstock”
Fairport Convention’s version of the traditional song, “Matty Groves”
Traffic’s version of the traditional song, “John Barleycorn Must Die”
Julian Cope’s cover of Thirteenth Floor Elevators’ “I’ve Got Levitation”
The Soft Boys’ cover of Syd Barrett’s “Vegetable Man”
The Effervescent Elephants’ cover of Pink Floyd’s “Interstellar Overdrive”
Peter Jefferies’ cover of Barbara Manning’s “Scissors”
The Times’ cover of the Teenage Filmstars’ “I Helped Patrick McGoohan Escape”
Big Dipper’s cover of The Embarrassment’s “Faith Healer”
Dick Gaughan’s cover of Leon Rosselson’s “World Turned Upside Down”
And last but not least:
OK. Did I cover everything? Or have I left anything out?
Saturday, May 02, 2009
The Review Essay (or, Against Novelty)
The review essay is widely deemed an inferior piece of legal writing to the full-fledged article or even to the essay full-stop. I have often wondered why. I think the review essay is disparaged primarily because it is derivative. It isn't as original as the article. Its claims are not as novel. It depends upon the ideas and claims made by the object of its attentions. It's just a reaction to someone else's original work. And what legal scholars want, above all else, is to say something new, something that has never been uttered or heard before and that will leave their readership (such as it is) ravished in the wake of its raw and unconditioned originality.
In this maiden-voyage post, I want to argue that the maligned features of the review essay are exactly its virtues. My friend Paul H. has in the past written positively on this site about the review essay -- he has, I think, praised its usefulness, economy, and readability. I agree with much that he says, yet it strikes me that these qualities relate especially to the "essay" component of the review essay.
But the real virtue of the review essay is its studied lack of novelty, at least in the sense in which novelty seems to be prized in legal academic writing.The best part of the review essay is the review part. Taking another scholar's thoughts seriously enough to examine them as the principal aim of a single piece is not the least intellectual virtue. Learning how to respond to those arguments with delicacy and care ought to be considered a crucial part of the legal academic's art. It is a scholarly delight to observe the manner in which experts in a field address one another's arguments, the styles and modes with which they engage the particular claims of their colleagues, and the ways in which their own thoughts gradually germinate and develop from that highly contextualized engagement.
The review essay is a sanitary antidote to certain illusions of legal scholarship. Primary among these is the belief that only that which is entirely novel is worth saying at all. In fact, novelty has an uncertain relationship to other scholarly virtues. Some scholarship is careful, subtle, clever, fair-minded, rigorous, elegant, thoughtful, erudite...and novel. But does scholarship become much less valuable -- qualitatively less worthwhile -- in the absence of that last feature? Another thought -- much that is original does not descend from the heavens as a bolt from the blue. Sometimes it emerges creepingly, painstakingly, as the byproduct (and not the overt target) of gradually accreting reflections and insights. At all events, novelty should not predominate among the academic virtues. An unqualified premium on novelty may actually disserve legal scholarship. If it has been said before, no one will know any better. No one will want to know. Better not to know.
"Make it New!" More than a few well-intentioned and kindly law professors have helpfully informed me in no uncertain terms that novelty is one of the unbreakable Commandments of legal scholarship. But Ezra Pound himself might agree that in order to make it new, one must have a fairly clear idea of what "it" is. And "it," as Louis Menand has observed, is the Old. The Old clamors for engagement and response. It invites marination. The Old is the furniture adorning the academic house, and it's deceptively difficult to learn how not to crash right into it. For young scholars, especially (like me!), the importance of being pickled in the Old -- of stewing for a good long time in academic work of the past and giving it patient and sustained attention -- is particularly acute.
The mystery is that it's surely true that no one writes anything in legal academia without citations. Many, many citations. And citations by the kiloton do seem to suggest some level of engagement with the Old. What, then, explains the comparative disdain in which the review essay is held? Why is it considered a lesser beast?
I think the answer may lie in the thought that the review essay doesn't stand alone. Its claims are not enough those of the author -- at least the author idealized as the solitary seafarer fearlessly navigating tempestuous and uncharted oceans (cue the Wagnerian soundtrack). The review essay is not sufficiently autonomous because its content is invariably bonded to another person's ideas. It isn't its own man, making its own heroically innovative claims. This is novelty as ideology.
If this ersatz Romanticism is a view that anyone actually holds, I don't see much to commend it. It is high time for the philosophy of legal academic writing to take the modernist turn (and only a century late...not bad for law). It is the height of callow arrogance to believe that something is worth saying just in virtue of its novelty. A novelty shop trucks in peculiar, insignificant, cheap, and ugly ephemera. Why should that be the beau ideal for one's writing? Yet legal academic writing seems profoundly committed to the ideology of novelty. Professor Volokh's tremendously practical book on the subject is confirmation enough (see p.13). But purely derivative reaction, too, can stimulate originality, albeit of a different sort -- originality "from the bottom up," marinated in the Old, but slowly fermenting into something else, and without feeling it necessary to trumpet its novelty -- to bathe it neon lest it go unnoticed. Legal academics ought to partake more liberally of the organized pleasures and stylized rigors of reaction (with student editors' help, of course).
The review essay goes some small distance to puncturing the illusion that novelty is and must always be best. It compels the writer to think microscopically, within an architecture not of her own making. It is a mannered mode of writing. It is constraining to be forced to think in this way. It is delimiting. It is rooting. One is not free to squirt out one's mind all over the page -- for all the world to see in the grotesque fullness of its barbarous and naked singularity.
So much the better. The legal academy needs its Tintorettos and Vasaris.
[Thanks to Dan and the co-bloggers for inviting me.]
The Purpo$e of Judicial Nomination$
I have written about this before, but the Souter vacancy seems as a good a time as any to reprise this theme. Of course judicial nominations are about the substance of the judge who is nominated, his or her judicial vision, how that vision reflects and affects partisan and ideological differences about policies, methodologies, and so on. But, at least since Bork, they are also about -- money. Groups that organize around partisan issues want and need -- and like! -- money. Whatever people in DC, of various ideological stripes, may think about things like voluntarism, the free market, socialism, welfare, pay levels, and so on, I think they can all agree on one basic principle: namely, that they would all prefer to be paid large amounts of money by rich people to write op-eds, hold conference calls, and go on CNN or FOX News. Some of them are more or less unfit to do anything else. Others could be academics, but would prefer to be closer to the action and not have to deal with students. So they fund-raise. That fund-raising is not going to be as successful unless they can more or less continuously convince their supporters that any given moment is THE crucial moment, that the forces of darkness are one step away from permanent victory, and that only a donation can help stave off defeat. ("Oceania has always been at war with Eastasia....")
Mr. Obama’s advisers said they were prepared for this fight and were ready to use the resources of Mr. Obama’s political organization, including its expansive e-mail list, to rally support for whoever he nominates. Liberal groups said they were gearing up not only to fight conservatives but also to make certain Mr. Obama puts forward a liberal choice.
Workshops as They Could Be
I'm grateful to my co-blogger Dan for organizing Prawfsfest, which was held over the last couple of days at FSU; I'm also grateful to the administration and the administrative staff, who hosted such a wonderful conference. I do think, for purposes of the "asterisk footnote," that the name of the conference might be different, so that it sounds good in the section of the footnote that says, "This paper was presented at workshops at...." My suggestion was that we should call it the Harvard Legal Theory Workshop. It may be a wee bit misleading, but you must admit it sounds good.
Friday, May 01, 2009
Me for Supreme Court Justice
So, it looks as if Justice Souter will be retiring. That's a shame, but of course it will make life very interesting for those of us in the legal academy who will spend endless hours thinking about and debating who should be/will be the next Supreme Court justice. We will all have our official hopes and predictions, whether they are Diane Wood or Elena Kagan or Jerry Springer or whomever, but let's be honest with ourselves: aren't we all sort of secretly hoping and thinking that maybe, just possibly, with a little luck, we could be the next justice? Isn't it at least possible that our friend who works in the Justice Department will make an offhand mention of our name to someone "at a higher paygrade," and that person will in turn become intrigued by the possibility of this stealth choice and do some research into our scholarship and records of past service and decide that yes, indeed, this obscure law professor from wherever would make the perfect nominee? I think that maybe we all do this, but that we are all too humble, and modest, and "well brought up by our parents" to actually come out and say it. Well, I say screw that: I'm endorsing myself for the next justice of the Supreme Court. And here's why.
For one thing, since I'm not a federal judge and have only written enough scholarship to barely get tenure, I don't have a long paper trail and therefore should be easily confirmable. Yes, so I've written a short story about how I got caught making out in the girl's bathroom at a seventh grade dance, but since when do sexual improprieties such as this render one unfit for the bench? Second, while I may be smart enough to write a decent Supreme Court opinion, I'm not too smart that I would write opinions that nobody could understand. See, that's the problem with all the hoity toity candidates. They all have "subtle" and "sophisticated" views of the law and see "connections" between various areas of law that seem unconnected. I don't see those things. And therefore my opinions will be straightforward and easy to understand and, moreover, will be fundamentally unsound at anything beyond a purely superficial level, which will in turn give legal academics a lot to gripe about and critical law review articles to write, which will be fine by me since who the hell cares, I'm a Supreme Court justice. Finally, since I'm on facebook, I will be able to open the process up far more than it is now, as I comment on pending cases in my daily status reports. Hell, I might even be convinced to tweet from the bench during oral argument.
So, President Obama, what do you think? Call me. (now I better write down the area code for Washington DC so I can look at caller ID and know when he's on the phone).