Sunday, February 28, 2010
The Third Year: A Post by Kristen Holmquist
Walter Kirn today endorses a Utah state senator’s proposal to do away with the senior year of high school. The proposal’s strong form met with such public resistance that it’s already been watered down – an optional senior year, a get out of jail free card, for the interested. Kirn’s piece reminds us of what we all already accept deep down – the senior year is, academically speaking, a waste of time.
Which has got me thinking about the third year of law school. For those who seek it, the third year offers plenty: a chance to dig deep into a subject area, an opportunity to broaden one’s legal training through interdisciplinary work or clinical experiences. But the truth is that Dazed and Confused (one of the films Kirn points to as evidence of our cultural acceptance of the senior year as one of nonacademic debauchery) could have been about 3Ls. Most are biding time before they start pulling down big salaries, or doing the public service work they came to law school to do, or beginning their post-bar-passage job searches in earnest. The signs are easy to spot. 3Ls make it to class much less often than they once did. When they do show up, chances are as good as not that they haven’t done the reading. We all know this – it’s why we hate to teach big classes full of 3Ls. Dead air. Our anecdotal experience is matched by the evidence. A number of years ago Mitu Gulati looked at the arguments in favor of abolishing the third year of law school. His findings were almost comical, as his efforts to gather data on the 3L experience were repeatedly thwarted by an inability to find any 3Ls on campus to talk to. When he finally did scrounge up enough third-year students to survey (at 11 schools across the ranking spectrum) he found that many third years went to only about 60% of their large classes, and when they did go to class, more than half of them said that they prepared only half, or less than half, of the time. Mitu Gulati et al., The Happy Charade: An Empirical Examination of the Third Year of Law School, 52 J. Legal Educ. 235 (2001).
And it’s not just class. By the time their third year rolls around student leaders and most journal editors have handed over the reins to 2Ls – leaving their hands free for paid part-time work, or community involvement, or maybe just another margarita.
So, ought we go the way of Utah? Move graduation up to coincide with the point at which law students feel, intellectually and emotionally, that they’ve had enough? Abolish the third year? Of course law schools’ financial incentives are more than a little different than Utah’s. According to Utah State Senator Chris Buttars, his plan to make senior year optional could save Utah as much as $60 million. Whereas law students pay tuition, and a lot of it. And while tuition is but one source of funding, the loss of an entire year’s worth of it for each and every law student would be a significant cost to law schools (and their home universities) . Yes, two-year law schools would have fewer classes to staff, and require fewer student services. But who are we kidding. The math does not come out in the law schools’ favor. Faculty sizes would need to shrink significantly, and it is hard to imagine faculties (or any group of people in any workforce) choosing to eliminate a third of their jobs.
How, then, do we make the third year of law school
meaningful and relevant to the majority of our students? Many current proposals involve more clinics,
more experiential opportunities – making law school look more like medical
school. For a variety of reasons,
largely centered around staffing and funding, I am not convinced that legal
education is ready to move to the medical school model. There is much more to say here (and yes, of
course, that means I am working on a piece on just these subjects), but I am
getting ahead of myself. The right place
for the conversation to begin, it seems, is with the problem. The do-next-to-nothing third year is indeed a
problem. If we hope to change it (and I
grant that it’s a decent-sized if), we need to have a better sense of just how
much nothing third years do, and why they do it.
Kristen Holmquist is Academic Support Programs Director and Lecturer in Residene at UC Berkeley Law
Saturday, February 27, 2010
What happened when Hitler got rejected by the Stanford Law Review?
Not normally sympathetic to the genre of Hitler parodies, I make an exception for this one. Take a look at the results in the attached video. (H/t:a colleague working through hir recent disappointment in the submission season)
Religion, Jurors, and Ash Wednesday
For law and religion devotees, here is a story from the ABA Journal, in which a defense attorney objected when a prosecutor returned to a murder trial after lunch on Wednesday (Ash Wednesday) with ash on his forehead. The judge indicated his agreement with the objection and the prosecutor, finding that the judge's reasons stemmed from an abundance of caution, removed the ashes.
A similar story is told at the beginning of Stephen Carter's book The Culture of Disbelief, so this isn't a new issue. I tend to think the judge could have dealt with this issue by addressing the jury directly, and that the prosecutor could have insisted on his right to continue sporting the ashes, although no one seems to have acted outrageously here and the prosecutor was understandably interested in keeping the record clear of potential grounds for reversal. I am also reminded of a story about the late Senator Strom Thurmond, who, inimitably, told a Senate worker one Ash Wednesday, "You got dirt on your forehead!"
Friday, February 26, 2010
Some Bleak Encouragement About Writing
If you need some encouragement to write that article you've been thinking about for years, consider the dying thoughts of the narrator of Hemingway's Snows of Kilimanjaro: "Now he would never write the things that he had saved to write until he knew enough to write them well. Well, he would not have to fail at trying to write them either. Maybe you could never write them, and that was why you put them off and delayed the starting. Well he would never know, now."
Do You, or Someone You Know, Want to be a Law Professor?Then the Society of American Law Teachers conference for prospective law teachers on March 21, 2010, at Golden Gate in San Francisco may be of interest. Details here.
It's Madonna's Constitution. We're All Just Living Under It.
Orin Kerr has a very interesting commentary on the Supreme Court's recent opinion in Maryland v. Shatzer (that's Shatzer, not Shatner; sorry), which held that where a Miranda warning has been given, the presumption that any subsequent custodial interrogation is involuntary will last for 14 days from release from custody. The comments eventually degenerate, but I can't resist plucking one gem from among them. Answering Orin's question, why 14 days and not 13 or 15, a commenter suggests:
I think it’s gematria, with the number 1 being assigned to each English letter. For example, Grutter v. Bollinger = affirmative action programs will not be needed 25 years from date of opinion. “Affirmative action programs” = 25 letters. Shatzer v. Maryland = 14 day time period for Miranda. “Michael Shatzer” = 14 letters. Just a coincidence? Or the newest theory of constitutional interpretation?Ingenious. You will know this theory has caught on when all the Justices suddenly start sporting red strings around their wrists.
What about curling?
As the Olympics wind down, I found myself thinking about the "What's a Sport?" question as applied to one of the darlings of these Games--curling. Curling seems to have been discovered in Vancouver, as the public has learned of the game's rhythms (somewhat comparable to baseball), its shot-making and strategy (comparable to golf, with collision physics thrown in), and the attractiveness of many of the female curlers (several European curlers posed nude for a fund-raising calendar). And curling was a staple of NBC's afternoon live cable coverage during the first week because the stuff people initially wanted to see (figure skating, skiing, and the new stuff the U.S. is good at) was being held for primetime tape-delay. So it was easy to find.
So, is it a sport? Our narrow definition (borrowed from anthropologist John Jackson) requires: 1) a ball or ball-like object as the center of attention; 2) a sense of physical urgency when the ball is in play; and 3) the opponent taking steps to thwart one player's efforts as to the ball.
Curling is OK as to # 1 and # 3--the stone qualifies as a "ball-like object" and the purpose of the game is get your stone closest to the center, often by deliberately knocking the other team's stone away. But it runs into a problem on # 2--sense of physical urgency while the ball is in play. There are no periods of running after the ball--much like golf, which Jackson expressly excludes from his definition. But we could argue there is physical urgency for the sweepers who must follow the stone and often have to move (and sweep) quickly to get the stone where they want it. The physical movement in curling is arguably greater and more urgent than in golf. In golf, the ball is hit and everyone stands and waits to see where it lands; in curling, the stone is launched and there is some rapid movement to control its progress. So perhaps # 2 is satisfied; it's a close call.
What about the broader definition: 1) Large motor skills; 2) simple machines only; 3) objective scoring; and 4) competition.
Curling passes. The brooms qualify as simple machines and large motor skills in upper and lower body, as well as great balance, are necessary for both the person who launches the stone and the sweepers (putting aside whether sweeping should be part of any sport). Scoring is objective and immediately determined and it is competitive in that we are keeping score and determining a winner.
So there you go, all you new curling fans.
Thursday, February 25, 2010
Why Professors Shouldn't Talk About Their Vacation Homes
Michael C. Jensen was an early inventor of bigger-than-life compensation packages for corporate chief executives, and nearly 20 years later, he still believes passionately in the concept of “pay for performance” that he championed. But along the way more than a few things went wrong, Mr. Jensen acknowledges . . . .
“There are all kinds of mistakes, and we can do a lot better,” Mr. Jensen, a professor emeritus at Harvard’s Graduate School of Business, said in an interview at his modernistic home on Siesta Key, with its huge picture windows overlooking the Gulf of Mexico some 40 feet away. It is one of two luxury houses — the other is in Sharon, Vt. — that reflect an academic life marked by success not just in scholarly pursuits but as a business consultant and popular speaker as well.
When it is cold at home, or he has a couple of weeks with nothing to do but write his Times column, or when something unexpectedly stressful happens, like winning the Nobel Prize, the Princeton economist Paul Krugman and his wife, Robin Wells, go to St. Croix. Here it is warm, and the days are longer, and the phone doesn’t ring much. Here they live in a one-bedroom condo they bought a few years ago, nothing fancy but right on the beach.
And another thing: the New Yorker loves public intellectuals holding cats!
(Krugman and Wells photgraph by Tina Barney; Posner photograph by Martin Schoeller)
Controversial GVRs and the "degradation" of the GVR
The Supreme Court's GVR practice has traditionally been a sleepy backwater of appellate procedure. The GVR (i.e., grant, vacate, remand) is most commonly used when a lower court decision might be affected by a recent Supreme Court case that came down after the lower court ruled (though there are other types too). Over the course of the last few years, there have been several controversial GVRs that have raised the device's profile a bit. Generally these have been cases in which some Justices, usually led by Justice Scalia, dissent from the GVR and charge that the Court is improperly expanding the GVR power. In effect, the dissenters say, the GVR is becoming, in different cases, either a way to make the lower court write a better opinion or a lazy substitute for a summary reversal. These cases reflect, in Scalia's words, "the systematic degradation of [the] traditional requirements for a GVR."
To list some of these cases:
- In Wellons v. Hall(2010), the Chief, Scalia, Thomas, and Alito all dissented, arguing that the new development that supposedly necessitated the GVR could not affect the lower court judgment, which (they argued) rested on a separately adequate foundation.
- In Webster v. Cooper (2009), the Court GVR'd in light of a decision that pre-dated the lower court's ruling and that the petitioner did not raise before the lower court. Scalia dissents.
- In Youngblood v. West Virginia (2006), the Court GVR'd in light of a decades-old case that the lower court did not discuss in its opinion, though it was presented to the lower court. The Supreme Court said that "if this Court is to reach the merits of the case, it would be better" to have the lower court's views on the matter. Scalia, joined by Thomas, said this was a not-so-veiled threat that the lower court had better reconsider or the Court will have to go to the trouble of reversing. Kennedy separately dissents.
Justice Scalia's complaint about the alleged expansion of the GVR is three-pronged: formal, historical, and prudential. He is certainly correct that these are not ordinary GVRs and that they raise some concerns. Nonetheless, here I will register some doubts about his criticisms, though all of this is necessarily tentative and brief.
Regarding the formal issue, he says that the Court has the power to set aside judgments for error, not to void them on suspicion of error or send them back because the opinions are incomplete. That sounds right in the abstract. Yet the Court's practices display some flexibility. The Court often doesn't end a case with its judgment; it might only be reversing on one ground out of several that, on remand, might lead to the reinstatement of the prior judgment. It sometimes vacates decisions that use the wrong standard without itself saying how the case should come out under the correct standard. And of course even the run-of-the-mill GVR vacates a judgment without any finding of error. So once you are doing all of that, the formal arguments get hard to maintain.
On the historical front, the charges of "degradation" of tradition, the attempt to rein in a wooly area of practice, and the more general declinist spirit are pure Scalia. I can't go into detail in a blog post, but, based on my study of GVRs, it seems to me that the history is somewhat more complicated. It might be that today's very standardized GVR practice - in which 98% of GVRs are run-of-the-mill vacaturs in light of a new precedent - doesn't reflect the way things always were. The device might have been more multifarious in the past.
This brings us to the prudential arguments. Is this a good thing for the Court to be doing? A good use of its time? A proper way to treat lower courts? Here I will just say that I am not sure.
Book Club on "Ordering the City"
Many thanks to Al, Chris, Willoughby, Anders and the commenters for a terrific book club on "The Ghost of Jim Crow." You can find these posts by looking under the PrawfsBlawg "Books" Category.
Next month Prawfs will be hosting a book club on Nicole Stelle Garnett's "Ordering the City: Land Use, Policing, and the Restoration of Urban America." Garnett is a Professor of Law at University of Notre Dame Law School, and she has written extensively on property, land use, and local government law. Last year the Federalist Society awarded her the Paul M. Bator Award for demonstrated excellence in legal scholarship and commitment to teaching.
The club begins on March 22 and will run through March 24. I'm extremely excited about our terrific group of contributors. They are:
- Michelle Wilde Anderson, Assistant Professor, UC Berkeley School of Law
- D. Benjamin Barros, Associate Professor, Widener University School of Law
- Stephen Clowney, Assistant Professor, University of Kentucky College of Law; Visiting Assistant Professor of Law, University of Pittsburgh School of Law (Spring 2010)
- Lee Fennell, Professor of Law, University of Chicago School of Law
- Tracey L. Meares, Deputy Dean and Walton Hale Hamilton Professor of Law, Yale Law School
- Christopher Serkin, Associate Professor, Brooklyn Law School
And here's a brief synopsis of "Ordering the City" from Yale Press:
This timely and important book highlights the multiple, often overlooked, and frequently misunderstood connections between land use and development policies and policing practices. In order to do so, the book draws upon multiple literatures—especially law, history, economics, sociology, and psychology—as well as concrete case studies to better explore how these policy arenas, generally treated as completely unrelated, intersect and conflict.
Nicole Stelle Garnett identifies different types of urban “disorder,” some that may be precursors to serious crime and social deviancy, others that may be benign or even contribute positively to urban vitality. The book’s unique approach—to analyze city policies through the lens of order and disorder—provides a clearer understanding, generally, of how cities work (and why they sometimes do not), and specifically, of what disorder is and how it affects city life.
We hope you will join us next month for the club.
Wednesday, February 24, 2010
“Assume A Small Boat”: Or, What’s So Funny About The Epistemological Objection To Originalism?
I’m sure most people recognize the punch line of a joke usually told at economists’ expense. I’ve sometimes felt, though, that the joke could just as easily start with “A philosopher, a politician, and an originalist are stranded on a desert island…”. I say this because whenever I raise an epistemological objection to concepts like “original public meaning” or “speakers intent” or “historical linguistic facts” etc. I seem to get one of two responses: (1) “But, assuming we could discover original intent, then you’ll concede that it should govern; or (2) “Just because original intent is hard to find doesn’t mean it isn’t worth looking for.” Suffice it to say that I don’t find (1) at all productive; and I’m not convinced that (2) doesn’t seriously compromise the claim that originalism can operate as a meaningful constraint on judges. In other words, the harder it is to know original meaning, the more plausible various divergent assertions become, and the less constraining history can be.
Indeed, the underlying normative differences between legal inquiry and historical inquiry seem to work against originalism here. That is, dedicated historians tend to work towards enriching our understanding of the past by rendering it in ever more complex, nuanced, and subtle shades. Legal decision, however, requires “right” answers, and so the lawyer seems to be in search of greater simplicity, or more clearly defined kinds of historical meanings. As a result, there is at least the danger that the “law office historian” will be pushed towards less sophisticated histories that provide easily digestible, law-friendly results—at the expense of more complete or thoughtful approaches. In other words, not only is the supposedly “constrained” originalist often able to pick from among various possible histories, but she may in fact be drawn to “bad”, at least “less thorough”, kinds of accounts. All of this, I think, suggests that epistemological difficulties present a very real problem for the claim that originalism can constrain judges in a meaningful way; or worse, that it can provide some “neutral” basis for constitutional decisionmaking.
Having said all this, I do think that more recent (and perhaps more sophisticated) originalist theories do recognize the serious problems that the epistemological objection presents, and they are thus dedicated to building more precise methods of ascertaining, or at least “fixing”, historical meaning. But even these theories seem to operate on the assumption that this meaning, while difficult to discover, is theoretically out there. As I have said in earlier posts, in difficult cases I think there are good reasons to doubt even this more modest claim…but that’s for some other day.
Which Books Should Be Reviewed in the upcoming Mich LR Books Issue?
Well, I have one suggestion. (Thanks, btw, to all those good people who helped us gin up the PoP website!)
Actually, the question of the post is not in jest and not simply a way to sell Privilege or Punish. The other day we received a note from the folks in the Books Dep't of the Michigan Law Review. They actually *are* soliciting ideas for the Books issue. In particular, they would love readers and writers of Prawfs to send in proposals or manuscripts to them. The link for information regarding submissions to the Books issue can be found here. Good luck!
P.S. Just discovered that Orin's made some suggestions over here. Feel free to add your own thoughts and recommendations in the comments.
The Plusses and Minuses of + / - Grades
At the University of Arizona, the story goes, the venerable computer software used to maintain student records is incapable of recording anything other than a letter grade. Accordingly, we have only A, B, C, D and F grades, no A+'s, or B-'s. We may soon gain the technical ability to record plus/minus grades, and we have been discussing whether it is a good idea. The pros of changing are that given our curve (25% A, 55% B, 20% C or lower), someone in the top third of the distribution and someone in the bottom third could receive the same grade. This is (allegedly) a disadvantage to students seeking employment, and a disincentive to working hard because most students earn a B--no reason to burn the midnight oil to get a B+ because there are no B+'s. The cons are said to be that plusses and minuses focus students on the wrong thing (grades instead of learning, and other forms of genuine merit), that the distinctions would imply a false precision about grades, and would be difficult to the faculty to assign accurately and fairly.
If your school went through this recently, what did you determine? Is there a decisive case for either side that I have not raised? Of course, it is much easier for the faculty to grade when particular attention has to be paid only to exams that are close to the A/B or B/C line, but if for some reason it would be better for the students, it would be worth doing.
Connick v. Thompson and the (changing?) scope of prosecutorial immunity
One of the petitions for certiorari the Supreme Court considered at last Friday's conference was Connick v. Thompson, No. 09-571. Prosecutors in the Orleans Parish (La.) DA's office violated a defendant's Brady rights. Years later the office was held liable under the Monell doctrine, which allows municipal liability when government policy causes a constitutional wrong. Individual prosecutors, as you may know, enjoy absolute immunity from personal liability for wrongs committed while discharging the prosecutorial function. So there was no individual liability here, but there was municipal liability.
As far as I can discern, the Court took no action on the case Friday; it isn't on the order list. That is an ambiguous signal, of course. Cert. might later be granted or denied after one or more Justices has a chance to study the case further or to lobby colleagues. Maybe someone is working on a dissent from the denial of cert. It is conceivable there could be a summary reversal, though that would surprise me in this case.
The question whether the office should have been held liable on this particular record is a matter over which, I suppose, reasonable minds might differ (some non-conclusive evidence of that comes from the fact that the en banc Fifth Circuit divided evenly). The petitioners certainly claim that this was a very aggressive and problematic application of Monell liability. I'm not sure about that. But what I find interesting about this case is the second point in the office's cert. petition. There they claim that the reasoning that supports absolute immunity for individual prosecutors also supports absolute immunity for prosecutors' offices as entities, at least for certain categories of Monell liability. An amicus brief amplifies that argument. (The briefs in the case are available at SCOTUSblog here.) Basically the idea is that entity liability will chill vigorous prosecution and so forth - the same things that support individual immunity.
The thing about the law is that arguments that seem crazy at time 1 could become plausible at time 2 and could become obviously correct at time 3. (Some of them will remain crazy at all times, but right now we don't know which ones.) Maybe I'm just behind the times on this one, but aren't we still at time 1 when it comes to this argument for entity immunity? Or have I missed a shift to time 2?
Tuesday, February 23, 2010
What's Wrong with Women's Rights
Following Paul Horwitz’s advice for writing incendiary blog posts, I’ve decided to come out with a point of mine that’s been incendiary in some quarters. My forthcoming piece, “Unsex CEDAW: What’s Wrong with Women’s Rights, which I’ll present at U.S.C. and U.C.L.A.’s Williams Institute in March, argues that the Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW” or the “Convention”) has failed to foster gender equality because its scope remains limited to women. First, I argue that CEDAW’s focus on women enshrines an understanding of sex as a binary of men/women and a consequent presumption of their relationship as perpetrator/victim. It reifies rather than undermines gender disparities. Second, CEDAW mistakenly frames the problem with regard to a specific identity “women” rather than a category such as “sex” or “gender” that would address the broader inequalities at hand. CEDAW would have addressed this wider frame had it adopted a category reference, such as that in the Convention for the Elimination of Racial Discrimination (“CERD”). Third, CEDAW presents men as the comparator for women’s equality and the implicit perpetrator of their inequality. Instead men and other sexes should figure as a key part of any advancement gender inequality. Regulations such as parental leave invoke complex relationships among private individuals, families, the market and the state. Solely remedying women’s inequality in this context may in fact perpetuate continued workplace disparities. Unsexing CEDAW, whether by amendment or reinterpretation, would move beyond the counterproductive identitarian focus.
Is Everything on the Table Now?
During a recent visit to a law school with a distinguished scholarly reputation and history, I chatted with a prof who, like me, is on a strategic planning committee. This prof had lateraled up, and had a resume showing that scholarship was a central interest. Yet, I learned that this prof and rest of the committee--comprised of faculty--might voluntarily recommend increasing the three course teaching package that some or all of them enjoy, for the good of the school and its program. It was not that the faculty had lost interest in scholarship, but that in its view of the current environment, the committee thought it was worth considering the possibility that the time freed up by the course relief might better be put to some form of teaching. Or perhaps (and this is me extrapolating) the strategic plan would include that the faculty should work harder--teach four courses AND do the quantity and quality of scholarship that they did when they taught only three.
It is a given that the more funds raised the better, the more talented the students admitted the better; all of our deans are already maximizing there as much as they can. The faculty may be the main flexible resource of a law school. Are we at a moment when the faculties at schools that want to be successful but are not fabulously wealthy are going to ask their colleagues to adjust some of the cherished perks we enjoy, and perhaps be prepared to do new and different things?
Any thoughts on what the faculties that are thriving five years from now will have done in 2010 to make themselves better?
Wouldn't you like to be a pepper too?
This morning, I opened my inbox to learn I am officially an oppressor. Various websites which oppose the practice of discrimination against men have listed a number of (mostly female) law professors as oppressors. It appears they just cut and paste the membership of feministlawprofessors.com. Sadly, by only posting this list and failing to do any leg work of their own, they left off many law professors who also contribute to the law and policy work to which the various websites object. I find it darkly humorous that a website devoted to exposing discrimination against men fails to acknowledge the numerous male scholars in the area.
There is much that could be written about this list, but I'll leave that to others. Instead, I thought I'd just offer those scholars who feel they have been unfairly left off the list the opportunity to add their names and support in the comments to this post. I'd rather not generate traffic for these websites, but they are pretty easy to find if you are so inclined.
The Gunner Problem
If I didn't hate the word "problematize" so much, I'd begin this post by inviting us to problematize the gunner problem. The venerable Urban Dictionary defines the gunner as "a person who is competitive,overly-ambitious and substantially exceeds minimum requirements. A gunner will compromise his/her peer relationships and/or reputation among peers in order to obtain recognition and praise from his/her superiors." This definition gets to the heart of the gunner problem: the "gunner" is a problem of group dynamics in the classroom. The problem is not necessarily the gunner's behavior, but rather the reaction it provokes in his or her classmates. Because this complex dynamic can sometimes poison the classroom atmosphere, the gunner problem demands professorial attention, management, and sometimes intervention.
For the record, there are different types of gunners. There are gunners who speak often in class but advance classroom discussion and gunners who speak often and don't. I have a real soft spot for the former type, whom I shall label the "good gunner." The good gunner is always prepared for class, appears to have a real intellectual interest in the material, wants to know what you have to teach, and will save you from the awkward silences that would otherwise ensue when you've asked a badly phrased or constructed question to a hundred people. But even the good gunner can create resentments among his or her classmates that are not beneficial to classroom dynamics. While a portion of this resentment stems from anti-intellectualism and competitiveness, it also stems from the unfairness of one student sucking up a grossly disproportionate share of classroom resources. Even if the good gunner is making intelligent contributions to classroom discourse, he or she is still dominating that discourse to the exclusion of others.
The most simple and obvious solution to the gunner problem, of course, is for the non-gunners to raise their own hands more often. Since they won't, however, the professor needs a better response than to tell the non-gunners "just raise your hand and I'll call on you."
Another possibility is for the professor simply not to take questions from students. If the professor only calls on students involuntarily, he or she won't really have a gunner problem. This approach is tantamount to swatting a fly with a hammer. It the professor doesn't much value intellectual curiosity among her students, and it deprives the professor of valuable on-the-spot feedback about whether her students are actually learning what she's trying to teach.
Here's the solution I recommend instead, though I often don't implement it perfectly because of my aforementioned gunner soft spot.
The first step is to include in the syllabus a statement indicating that because it is a large class, not every student can speak every day. I also announce to students on the first day of class: "If I start ignoring your hand, it is because I'm trying to bring the perspectives of more students into the classroom discussion. If I feel I need to bring in more perspectives, I may call on students involuntarily even you have your hand raised." I also tell students that I will often deflect certain questions until after class because of time constraints imposed by the large classroom setting. I've contemplated saying "If you're raising your hand more than twice per class, that's probably too much." But I've never actually said it because it seems too arbitrary.
These prophylactic measures against the gunner problem will not solve it completely, but when you do have to start ignoring the gunner's hand or deflecting her questions, she is less likely to take it personally. These measures, especially if levied somewhat pointedly, will usually take care of all but the most recalcitrant gunner problem.
If these measures don't work, you really should take the next, admittedly unpleasant step, of asking the gunner (in private) to come see you in your office. Explain to him that he is creating a problem for you because you need to make sure all hundred students are able to contribute. Explain that you value his contributions and the fact that he is well prepared and truly wish you could teach the class as a discussion seminar so you could entertain all questions. Explain the group dynamics and the justified and unjustified resentments that can be triggered in the situation. You might think that this conversation is pointless because the gunner will certainly know these things already, but (and now I'm speaking quite personally as a former gunner) you would be wrong.
If you get the opportunity, by all means counsel the students who complain to you about the gunner, too. Try to get them to see that their hostilities may be as much or more about their own insecurities about law school performance as they are about the gunner. You can also suggest that they go talk to the gunner about their resentments and suggest ways that they can broach the subject that aren't unduly accusatory or personal. Because the gunner problem is a problem between students, it really is best if they learn constructive ways to solve it.
Whatever you do about your gunner problem, don't do nothing. You run the risk that the group dynamics will turn ugly, and non-gunners may take matters into their own hands. You probably know about and despise "gunner bingo," but matters can even escalate to "shuffling" or some other form of renegade collective action or even bullying. If matters reach that point, you'll have a much more unpleasant classroom management issue to deal with than the gunner problem.
Self Help Against Foreclosure
Ohio homeowner Terry Hoskins bulldozed his house rather than let a bank take it in foreclosure. Lest there be any ambiguity about his motives, he explained what he was doing on camera. But Ohio, like many other states, has a statute making it a crime to "destroy . . . any of the person's property" with a "purpose to defraud a creditor." Ohio Rev. Code 2913.45. If the value of the property is more than $100,000, it is a Class 3 felony, which is punishable by up to five years in prison. Is there some reason I do not see that this fellow should not be charged? Surely this is not a solution that should be encouraged in any way.
Monday, February 22, 2010
"Are There Secular Reasons?"
That's the title of Stanley Fish's latest column. It is fairly standard stuff for readers of Fish on law and religion, but with the added benefit that it discusses and quotes from Steve Smith's terrific forthcoming book, The Disenchantment of Secular Discourse. The comments are (at this point, at least) also worth reading.
States in Fiscal Crisis: How Did We Get Here?
Ok, state budgets suck right now. We know this. For instance, the New York Times reports (again) this week on the vicious cycle of state budgets and the economy. As fiscally-strapped states cut jobs and other spending, their economies weaken, pushing their own revenues and those of their neighbors lower yet. And then the states call for federal assistance. This is a familiar story, although one that the size of the current recession makes more dramatic. Why don't states ever learn? Are we doomed to replay this gloomy story over and over, like a recording of Gotterdamerung stuck on repeat? Will the plus-sized lady ever, finally, sing?
Although there is no magic ring or other neat solution to crises as big as the one we have now, there are solid policies the federal government and states could pursue together that would help a good bit. That's the argument of a new paper by me and my erstwhile FSU colleague Jon Klick. And, thanks to Jon, we've got the data to support our noodling. You're at least mildly intrigued, no? Read more...
So, the basic problem is that state revenures are "pro-cyclical": when the economy is good, revenues go up, spending goes up, the economy improves (although there's a danger of inflation). When it stinks, then eh, not so much. Rational actors should want to insure themselves against the risk of being out of work during one of these economic slowdowns, but because of imperfections in the insurance market, they often can't. So we have alternatives, like social insurance. But these are exactly the kinds of things that states cut during downturns.
Zoinks! Why do they do that? Well, what they ought to do is borrow. That's what an individual would do: she would move money from when she's richer (the future) to when she really, really needs the cash (now). (Aside to people who remember their econ 101: Keynesian economists would also say that there are macroeconomic reasons for borrowing during downturns, but since there is debate about that, we rest our argument purely on the microeconomic income-smoothing rationale.) But states can't really borrow effectively. Since public officials have limited times in office, there's a significant danger that unlimited borrowing authority could lead to excess indebtedness, as officials discount the costs to the public of future debt obligations. So states tie their own hands through legal rules that make it hard for their officials to borrow, as with so-called "balanced budget" requirements. (These turn out to be not especially effective at limiting borrowing, but pretty good at raising the cost of borrowing.)
On the flip side, states could also get out of this mess by saving. But none of them have ever done that to nearly the degree they'd need to mitigate later recessions. Really, ever. And that's not so surprising, because again the benefits of savings are later, while the officials have to win elections and collect other goodies of being in office now.
All of this is bad news for people who live in a state hit by a fiscal crisis. But, worse, it's also bad news for that state's neighbors and trading partners. When the crisis state cuts its spending and lays off workers, that reduces spending in other states, too. So another, predictable reason that states under-protect themselves against downturns is because a large part of the social harm that results is an externality.
So, yes, there's a case for federal intervention. But we don't think it should necessarily be just a jobs bill. Tune in next time for the solution and the data on whether it would work.
Allocating power between courts and arbitrators - and why scholars of federal courts should care
The Federal Arbitration Act makes arbitration agreements as enforceable as all other contracts. In April, the Supreme Court will hear argument in Rent-A-Center v. Jackson, which concerns the question of who - court or arbitrator - decides a claim that an arbitration agreement is unconscionable and thus unenforceable. In this case, the arbitration agreement itself assigns (or at least purports to assign) that power to the arbitrator. The Ninth Circuit, however, held that unconscionability was an issue for the court. This case holds obvious interest for those who study ADR, consumer law (most consumer contracts have arbitration clauses, whether or not you know it), and employment law (this case is an employment discrimination suit). What I hope to show you is that it is just as interesting for those who study federal courts and judicial politics. Beneath the surface, the case is, in a sense, more Bush v. Gore than Williams v. Walker-Thomas Furniture.
To see why the case is so intriguing, one has to appreciate what one might call its strategic context. The Supreme Court is strongly pro-arbitration. Some state and federal courts are not quite so enthusiastic, at least when it comes to consumer and employment contexts with their largely adhesionary contracts. (Please note that I'm not discussing whether the Court's decisions in this area, and its broader pro-arbitration stance, reflect sound interpretations of the relevant statute, good policy, etc.) Over the course of the last couple of decades the Supreme Court has shut off most avenues for challenging arbitration agreements at the wholesale level - state law cannot declare particular fields like consumer transactions off limits from arbitration, courts cannot deem arbitration per se violative of public policy, etc. All such arguments are preempted by the Federal Arbitration Act. What remains, though, is the possibility for retail-level challenges to particular arbitration clauses under section 2 of the Act, which allows ordinary contract defenses that would invalidate any contract. So arbitration itself cannot be questioned, but a particular arbitration clause might be invalidated as the product of duress, fraud, etc.
In the last few years, as other routes for challenging arbitration have been closed off, unconscionability has become a surprisingly common and surprisingly effective way of attacking arbitration agreements. The challenges do not attack arbitration per se - federal law favors arbitration - but instead target various aspects of a particular arbitration process: a given clause might forbid class arbitrations, bar punitive damages or otherwise restrict remedies, sharply curtail discovery, require a consumer to pay hefty arbitrator's fees, etc. There have been many cases on these topics in recent years, and a good number of them sustain the challenge to the arbitration clause.
These cases have generated lots of petitions for certiorari in which businesses, assisted by amici like the Chamber of Commerce, charge that some state courts and lower federal courts are using unconscionability to discriminate against arbitration in violation of federal law. That is, while ordinary contract defenses can be used to invalidate an arbitration clause, those doctrines are not supposed to be used differently in the arbitration context in order to disadvantage arbitration. Perhaps surprisingly, given its pro-arbitration stance, the Supreme Court has for years let these petitions go by. My suspicion is that the Court has avoided these cases because it feels ill-equipped to resolve whether a lower court is discriminating against arbitration. First, unconscionability analysis often requires a fact-intensive inquiry. Second, and more important, determining whether a lower court is using unconscionability differently when it comes to arbitration requires an engagement with the details of state law and a comparison of lots of prior unconscionability cases. Third, and maybe most important of all, a holding that the lower court is applying unconscionability unfairly, especially when the lower court says it is applying the same analysis it applies elsewhere, carries with it some serious expressive baggage. Essentially, it requires the Supreme Court to say that the lower court is being dishonest. That happens, but when it does so, it is a big deal (think cases like Bush v. Gore or the cases from the 50s/60s rejecting supposed procedural defaults in the state courts).
The nice thing about a case like Rent-A-Center v. Jackson, at least from the point of view of a pro-arbitration court, is that it concerns not the merits of an unconscionability challenge but instead the allocation question - a question of who decides. That doesn't require diving into the weeds of state law and the record. If the Court assigns the issue to the arbitrator, that will be a very easy rule to monitor for compliance (unlike deciding whether the lower court applied unconscionability correctly). All of those unconscionability cases out there will instantly become not wrong but irrelevant - because courts won't be deciding the issue anymore. And it won't matter whether some lower courts can be trusted to apply unconscionability correctly, because they will be cut out of the picture.
All of the analysis above suggests reasons why the Supreme Court would find it useful to assign unconscionability to the arbitrator. On the other side, there are some reasons for it not to do that. Notably, it might be that judicial review for unconscionability operates as a sort of safety valve that makes arbitration of consumer and employment disputes palatable.
To this point I haven't said anything about the more narrowly doctrinal aspects of the case. I think that, as with many cases that reach the Supreme Court, the conventionally authoritative legal materials leave enough room here that acceptable legal reasoning could get you to either result. In brief (and this compressed summary probably won't make sense to non-specialists): On Jackson's side, one might say, as the Ninth Circuit did, that the Prima Paint separability doctrine does not apply here because this is a challenge specifically to an agreement to arbitrate. (Indeed, this was a stand-alone arbitration agreement, not a larger contract that included an arbitration clause.) On the other side, I can imagine Rent-A-Center arguing that there is a separable agreement to arbitrate here. After all, the agreement to arbitrate is not itself unconscionable - it can't be. Rather, the problem is the limitations on remedies and so forth. So one could imagine that there is an underlying theoretical agreement to arbitrate that remains uninfected, and then Jackson is supposed to go to arbitration to try to get the arbitrator to invalidate the offensive restrictions. That would be slicing separability pretty thinly, of course.
The Irrelevance of Writtenness in Constitutional Interpretation
My last two posts discussed different versions of what I have been calling the originalist "argument from writtenness." The first version holds that only originalism is consistent with the primary purpose of written constitutions—namely to subject the power of judges and, through them, other government officials, to fixed constitutional constraints. The second holds that only originalism is consistent with the founders' commitment to a written constitution. For reasons I have already explained, both of these arguments fail to provide a persuasive normative justification for originalism. There is, however, a third and stronger version of the argument, which if true, would provide such a justification. That version holds, in short, that only originalism is capable of explaining our contemporary commitment to a written constitution. Why else, originalists, ask, would we bother keeping such an old text around?
The question is supposed to be rhetorical, but in fact, there are many answers. One can be committed to a written constitution in any number of ways for any number of reasons, the vast majority of which do not entail an originalist interpretive approach. For example, one can be committed to the constitutional text as focal point for legal coordination in the manner of the rules of the road; as a flexible framework for common law reasoning; as a locus of normative discourse in a flourishing constitutional culture; or as one of many legitimate ingredients in a pluralistic practice of constitutional adjudication. Just what these varying forms of commitment entail and what role they accord the written text are complicated questions--too complicated to answer satisfactorily in a single blog post. But if I have succeeded in whetting your appetite, this forthcoming article takes a crack at them, along with several of the other questions I have blogged about over the past few weeks.
This will be my last post. Many thanks to the Prawfs crew for having me and to all of you for reading. I especially appreciate the many thoughtful comments and emails.
Sunday, February 21, 2010
Android Apps for Prawfs?
A little while ago, Rick asked about the best apps for iPhones. I just made the switch to a Droid/Verizon after many years on T-Mobile with a Blackberry. The transition so far has not been seemless; sadly, I spent a couple hours fruitlessly waiting while they tried to extract my contacts and photos from my BB and move them to the Droid. (Thank goodness for contax via FB and Gmail.) In any event, I'm curious, what apps do folks with Android platforms love and think might be useful to a twerpy prawf like myself?
By the way, my FSU colleague, the invariably talented Shawn Bayern, has crafted a couple iPhone apps (including an app that lends you send emails in the future, and another one that has the US Code), but I don't think he's done any yet for Android. If you're interested in his iPhone apps, do a search for Bayern.
Symposium: Pondering Iqbal
The new issue of Lewis & Clark Law Review is on-line, with a fantastic paper symposium on the much-maligned Aschroft v. Iqbal (the first to reach print, I believe), titled Pondering Iqbal. Contributors include former GuestPrawfs Scott Dodson, Tung Yin, and Hillel Levin, as well as PermaPrawfs Steve Vladeck and myself. It features a wide range of contributors that gets at everything that makes Iqbal a potentially significant case--pleading, discovery, civil rights litigation, immigration, and national security.
Thanks to John Parry of Lewis & Clark for putting this together.
Friday, February 19, 2010
Linguistic Vagueness and Constitutional Law
The problem of “vagueness” has a venerable place in the twentieth-century philosophy of language. Broadly speaking, vagueness seems to present a stumbling block for semantic logicians (such as Bertrand Russell, who commented on the problem himself in 1923) who hope to provide some kind of unitary account of a language’s underlying structure. In particular, vague words make it difficult to determine a sentence’s “truth-value”; that is, whether a speaker has communicated something “true” or “false” about the world. The late, great David Lewis stated the problem nicely in a famous paper: "If Fred is a borderline case of baldness, the sentence 'Fred is bald' may have no determinate truth-value. Whether it is true depends on where you draw the line. Relative to some perfectly reasonable ways of drawing a precise boundary between “bald” and “not-bald”, the sentence is true. Relative to other delineations, no less reasonable, it is false. Nothing in our use of language makes one of these delineations right and all others wrong. We cannot pick a delineation once and for all (not if we are interested in ordinary language), but must consider the entire range of reasonable delineations." My intuition is that problem of vagueness may also present a significant issue for modern constitutional scholars who hope to utilize particular semantic theories as part of a logical account of constitutional semantics. Vagueness presents a big enough obstacle when we are trying to deconstruct reasonably precise kinds of sentences, and it seems to me that these problems are only compounded when we confront sentences in which a speaker is being deliberately vague—which seems to be an important feature of some aspects of constitution framing. Again, in someone else’s—someone smarter’s—words (this time Oxford philosopher Timothy Williamson): "The phenomenon of vagueness is broad. Most challenges to classical logic or semantics depend on special features of a subject matter: the future, the infinite, the quantum mechanical. For all such a challenge implies, classical logic and semantics apply to statements about other subject matters. Vagueness, in contrast, presents a ubiquitous challenge. It is hard to make a perfectly precise statement about anything. If classical logic and semantics apply only to perfectly precise languages, then they apply to no language that we can speak." All of this just contributes to my general suspicion of normative theories that seem bent on affixing some determinate, foundational meaning—whether “original” or otherwise—to constitutional text. I’m not sure yet whether, or precisely how, the literature on vagueness can be helpful to constitutional theory though, and I’d be glad to read your thoughts.
The problem of “vagueness” has a venerable place in the twentieth-century philosophy of language. Broadly speaking, vagueness seems to present a stumbling block for semantic logicians (such as Bertrand Russell, who commented on the problem himself in 1923) who hope to provide some kind of unitary account of a language’s underlying structure. In particular, vague words make it difficult to determine a sentence’s “truth-value”; that is, whether a speaker has communicated something “true” or “false” about the world. The late, great David Lewis stated the problem nicely in a famous paper:
"If Fred is a borderline case of baldness, the sentence 'Fred is bald' may have no determinate truth-value. Whether it is true depends on where you draw the line. Relative to some perfectly reasonable ways of drawing a precise boundary between “bald” and “not-bald”, the sentence is true. Relative to other delineations, no less reasonable, it is false. Nothing in our use of language makes one of these delineations right and all others wrong. We cannot pick a delineation once and for all (not if we are interested in ordinary language), but must consider the entire range of reasonable delineations."
My intuition is that problem of vagueness may also present a significant issue for modern constitutional scholars who hope to utilize particular semantic theories as part of a logical account of constitutional semantics. Vagueness presents a big enough obstacle when we are trying to deconstruct reasonably precise kinds of sentences, and it seems to me that these problems are only compounded when we confront sentences in which a speaker is being deliberately vague—which seems to be an important feature of some aspects of constitution framing. Again, in someone else’s—someone smarter’s—words (this time Oxford philosopher Timothy Williamson):
"The phenomenon of vagueness is broad. Most challenges to classical logic or semantics depend on special features of a subject matter: the future, the infinite, the quantum mechanical. For all such a challenge implies, classical logic and semantics apply to statements about other subject matters. Vagueness, in contrast, presents a ubiquitous challenge. It is hard to make a perfectly precise statement about anything. If classical logic and semantics apply only to perfectly precise languages, then they apply to no language that we can speak."
All of this just contributes to my general suspicion of normative theories that seem bent on affixing some determinate, foundational meaning—whether “original” or otherwise—to constitutional text. I’m not sure yet whether, or precisely how, the literature on vagueness can be helpful to constitutional theory though, and I’d be glad to read your thoughts.
Jeffrey Rosen has a fun piece in this weekend's Washington Post arguing that President Obama would be better suited as a Supreme Court Justice than he is as President. (Thanks to his colleague Lawrence Cunningham for linking to it on CoOp.) It's not clear how serious Rosen is about this -- a little? a lot? He speculates about the ways Obama could do it and the likelihood that he would be confirmed, but I think the piece is best read as a thought experiment.
Although it's enjoyable, I think it's mistaken in some important ways. First, I think Rosen sets the bar of presidential success too low, perhaps in part because of the unrealistic expectations that many of his supporters had when he took office, expectations that were fueled in part by forgetting about the awesome capacity of congressional Democrats to snatch defeat from victory. It is too early to say whether Obama will be a successful or unsuccessful President, although it is not too early to say that he is the President of a nation that is not marching in lockstep to the same destination and whose mechanics discourage lockstep marching, and thus one in which the politics of consensus are unlikely to get us as far as some might hope.
There is also just no indication that Obama wants the job. I would be perfectly happy if he did; I might well disagree with him on a number of important issues, but I am sure he would be well-qualified to serve as a Justice. Rosen acknowledges that Obama has said time and again that he doubts that courts can or should be in the vanguard of social change, and that constitutional law is something that does and should take place as much, or more, outside the courts than on the courts; yet it is not clear how seriously he takes these statements. Here, again, Obama's function as a mirror for liberal hopes seems to be affecting Rosen's analysis. Some of Obama's supporters seem to assume that he shares their progressive values absolutely, and that any departures from them -- say, encouraging the construction of nuclear power plants -- must be a calculated political decision (and a betrayal of progressive values) and nothing more. There is no doubt he is in many respects a political progressive, including in some ways I disagree with. But his supporters would be better off taking much of what he has written at face value -- and that certainly includes his view that the courts should not be the center of the action where constitutional politics and change are concerned. Surely this is one factor (among many) in his selection of relatively older and more moderate judges for the federal bench, which is consistent with his own apparent estimation of the relative importance of judicial nominations but is read by some of his supporters as the betrayal of a promise. Maybe Obama thinks that we lawyers and law professors are too Court-centric. And, of course, maybe he is right.
Finally, I think Rosen is close but not quite right on issues of temperament. He writes: "It's surprising but true that the least successful presidents are often the most judicious, while the most successful justices are the most pragmatic." Aside from its overvaluing the importance of presidents and undervaluing circumstances and historical forces, I think the statement is a little inaccurate. Judges have to decide, after all, without too much looking back, and too much havering and wavering can be a detriment in their job; good judges have to think, but not too much. And, of course, some very non-pragmatic judges, although not always effective in cobbling together majorities, have sometimes influenced the development of the law downstream in strong ways. It might be more accurate to say that too much dogmatism is bad for both presidents and Justices, and that figures in either institution who are unwilling to respond to and take advantage of changing circumstances will face significant problems. Just as importantly, I think Rosen makes too much of an assumption that whatever skill-set Obama possesses will be institution-insensitive, that the way he does things now will simply be transferred to the Court lock, stock, and barrel. I doubt that. The institution itself would change how he dealt with things. That is not to say we shouldn't value the possibility of having individuals with experience in political office on the courts. We should. But we should value them more for their experience, for their knowledge of facts and of how the political branches work, than for a set of skills at dealing or compromise that they may or not bring with them, or use skillfully, when the context is radically different. Justice Obama would not be the same person as President Obama.
A Non-Lawyer Law Clerk
The New York Times' obituary page today (always the first thing I read in the Times) carries the obituary of Carl Kaysen, an economics professor and former director of Princeton's Institute for Advanced Study, who also along the way helped negotiate the Limited Test Ban Treaty. An interesting tidbit from the obit is that Kaysen, who did not have a law degree, served as a law clerk to federal District Court Judge Charles Wyzanski, who wanted an economist's advice in an important antitrust case. Not one to waste his time, Kaysen also got a book out of the case.
I'm not sure how many non-law school graduates have served as law clerks, and would love to hear other names if they exist. I'm not sure whether this is good news for law students, since they now need not think of graduating as a prerequisite to the job (although I don't know if the relevant statutes have since changed, and I suspect the failure to graduate would affect one's base salary), or bad news, as judges realize that in a glutted and competitive market for law clerks they can always steal a jump on their colleagues by going outside the law schools altogether. I have long thought that serious originalist judges, who might be slightly hampered by a less than deep knowledge of history, ought to reserve at least one of their spots for a specialist in the relevant periods of American history who is untainted by time in law school, in case the judge accidentally and unintentionally reads history in a presentist and outcome-oriented way; maybe this would be a good time for them to get started.
Book Club on "Ghost of Jim Crow" continues
Just wanted to provide an update on the book club, which continues through the end of today. Our contributors have each posted their thoughts, and Anders has responded in the comments. Here are the posts:
Willoughby Anderson, A Smarter Southern Strategy
Al Brophy, Attack on the Moderates
Chris Schmidt, Strategic Constitutionalism and Resistance to Brown
I'd like to thank Willoughby, Al, Chris, and Anders, as well as those of you who have added your own comments, for a great club. Thanks for contributing.
Trivia from the Supreme Court order list
Anybody can read the Supreme Court's opinions, but the real nerds read the order list. Here is an order from the Court's January 19, 2010 list:
Linton v. United States, No.09-7408 - The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of United States v. Booker, 543 U.S. 220 (2005).
Does anything about that seem strange? Yes, you read it correctly, last month the Supreme Court issued a GVR (grant-vacate-remand) in light of a case decided five years ago. Had the Fourth Circuit somehow not heard of Booker? How could that be? Answer below the fold . . .
The Court ordinarily uses its GVR power to direct lower courts to reconsider a case in light of a new development that followed the lower court's decision. Although it wouldn't be unprecedented for the Court to issue a GVR in light of a case decided before the lower court ruled, especially where the lower court seemed unaware of the Supreme Court precedent, that isn't exactly what happened here.
What happened is that Linton had previously appealed his conviction and sentence to the Fourth Circuit, the Fourth Circuit affirmed, and then Linton's appointed counsel failed to file a petition for certiorari when he or she was supposed to, which violated Linton's rights under the Criminal Justice Act. All of that was years ago. In the new litigation, Linton filed a 2255 motion for resentencing, which the Fourth Circuit construed as a motion to recall its earlier mandate. The Fourth Circuit granted the motion, recalled the mandate, and entered a new judgment in July 2009, so that Linton could file a timely petition for certiorari. And then he got a GVR. Now we'll see what the Fourth Circuit does with it. In a prior case that presented similar circumstances, the Fourth Circuit remanded to the district court for resentencing, but there's no guarantee that will happen here.
Thursday, February 18, 2010
Most Americans Disagree with the Citizens United Decision -- should we care?
A new Washington Post-ABC News poll reports that around 80% of Americans disapprove of the Supreme Court's decision in Citizens United.
It is unclear to me, from reading the reports of the poll, whether Americans disapprove of unlimited campaign contributions by corporations, or whether they believe that the Supreme Court got it wrong as a legal matter. But my suspicion is that it is the former.
In that case, should we care? Assume, purely for the sake of argument, that the Supreme Court got it right as a matter of First Amendment jurisprudence. What, then, should we make of American's opinions? One option is to ignore this altogether. Constitutional law isn't a popularity contest, and perhaps Americans are just seeing a less desirable manifestation of the freedom of speech.
Another option is to consider how public opinion should influence the congressional or political response. Two broad solutions have been proposed: the first is a new statute that drafters claim "would pass constitutional muster" which is an attempt to redefine limits on campaign contributions. The second is to try and pass a constitutional amendment that would ban campaign contributions by corporations.
What Americans think about why the Supreme Court went wrong, and not just the fact that they got it wrong should inform how either of these solutions are crafted, and which of the two solutions it is best to pursue. Constitutional amendments are daunting, scary processes, but perhaps this level of bipartisan support indicates are real possibility for success. On the other hand, a federal statute that either does not pass constitutional muster and/or does not really address the concerns that Americans are addressing does not seem like a particularly strong response. But it is a response at all, and the concern is that ineffective congressional action will be mistaken for a "strong" response that "stands up" to the Supreme Court.
Figure skating: Still fixed, still not a sport
If it is a Winter Olympic year, then everyone must care, once again, about figure skating. And no discussion of figure skating is complete without a discussion of corrupt judges.
Following the controversy in pairs skating in 2002, when judges from five countries traded votes to ensure a Gold for the Russian team, skating moved to a system of anonymous judging. The theory was that if no one could know how anyone else voted, there was less likelihood that someone would bribe a judge or trade votes, since there was no way to ensure the other side held up their end of the bargain. But a new study by Dartmouth economist Eric Zitzewitz finds that anonymous scoring has had the opposite effect: Home-country bias is about 20 percent higher than under the old full disclosure system. Although backroom-dealmaking is riskier (and thus less likely), the loss of public and media accountability makes it easier for individual judges to bias for home skaters (or skaters from "friendly" nations).
Jon Siegel discusses a proposal from his GW colleague Michael Abramowicz. His solution is to evaluate judges based on how close their individual scores are to the average of all the scores for a skater (with the average reflecting, to some degree, the "right" score). After compiling each judge's scores over time, rewards such as compensation and choice assignments (which competitions, which events) could be determined by how close a judge is to the average over all each competitions.
Interesting idea. But I disagree with Jon that this could "solve the problem of subjectivity in figure skating judging." Nothing can solve that problem, because the judging is inherently subjective and nothing is going to change that. But that just goes to my bugaboo of why it is not a sport.
Let me leave on two questions. First, why don't we have similar problems in other judged Olymic events (similarly, not sport), such as moguls skiing (I watched this and still have no idea how the winner was determined) or half-pipe snowboarding (or whatever it is that Shaun White keeps winning)? Second, were we actually better off in the days of the hallowed-yet-infamous East German Judge, when we recognized that the thing was rigged along Cold War politics and just dealt with it?
Wednesday, February 17, 2010
Anonymity versus Access in Doe v. Reed: An Overlooked Argument?
Doe v. Reed, which is on the Supreme Court's oral argument calendar for April, is a media law professor's dream. It pits the (qualified) First Amendment right to speak anonymously against a state public records act designed to assure transparency and accountability in government. The case involves a Washington state referendum procedure. The procedure allows citizens to call a referendum vote on any bill passed by the legislature if a specified percentage of Washington voters sign a petition to do so. Opponents of same sex marriage used the referendum procedure to attempt to reverse a state law known as the "everything but marriage" act. When proponents of same sex marriage rights sought access to the signed petitions under the Washington Public Records Act, two of the petition signers and a group called Protect Marriage Washington invoked their First Amendment rights and sought a preliminary injunction against disclosure.
The Ninth Circuit Court of Appeals held that the district court abused its discretion in granting the injunction against disclosure. The Ninth Circuit applied intermediate scrutiny and held that access trumps anonymity, but the Supreme Court granted cert and stayed disclosure of the petition signers' names. Although I am a strong defender of the right to speak anonymously, I sincerely hope the Supreme Court didn't grant cert in order to reverse the outcome in the Ninth Circuit. I'm not comforted by the fact that the Ninth Circuit's decision seems to be lacking any critical engagement with the Supreme Court's anonymous speech precedent, particularly the seminal case of McIntyre v. Ohio Elections Commission. Therefore, I thought I'd sketch out here at least one argument that the Ninth Circuit seems to have overlooked.
The Ninth Circuit refused to grapple with the anonymous speech precedent on the ground that speech was not truly anonymous: the petition signers could have had no legitimate expectation that the signatures would be kept confidential. The signatures were gathered in public, and no steps were taken to block the signatures from view during the signing process. In addition, the state's verification procedure for petitions seemed to negate any legitimate expectation of confidentiality. Though I find this argument somewhat convincing, I'd have liked to at least see the Ninth Circuit hedge its bet by tackling McIntyre v. Ohio Elections Commission head on.
The "anonymous" speaker in McIntyre did not have an expectation of absolute anonymity any more than the petition signers did. Margaret McIntyre wrote handbills opposing a school tax referendum and handed them out in public to people attending public meetings. She omitted her name from some, but not all, of the handbills, signing them: “CONCERNED PARENTS AND TAXPAYERS. [sic].” The Ohio Elections Commission fined McIntyre $100 for violating an Ohio law forbidding distribution of any publication promoting a ballot issue unless it contained the “name and residence” of the person “who issues, makes, or is responsible therefor.” The Supreme Court struck down the Ohio law on a 7-2 vote, holding that "an author’s decision to remain anonymous, like other decisions concerning omissions or addition to the content of a publication, is an aspect of freedom of speech protected by the First Amendment.”
The Court rested its decision protecting anonymous speech on two grounds. The first ground was instrumental: Protecting anonymity is necessary to induce some authors to contribute valuable information to the marketplace of ideas. The second ground was authorial autonomy: An author’s decision to remain anonymous is an exercise of autonomy over choice of content, and “an author generally is free to decide whether or not to disclose his or her true identity.” The Court labeled identification requirements “intrusive” because they require authors to reveal “the content of [their] thoughts on a controversial issue." In essence, the Court treated the decision to remain anonymous as an editorial judgment like any other, which makes choosing to omit one’s name no different than choosing to omit an opposing viewpoint or to include serial commas. The Court therefore found that the identification requirement operated as a content-based regulation of political speech and applied strict scrutiny, with a predictable outcome.
From an "authorial autonomy" perspective, Doe v. Reed seems clearly distinguishable from McIntyre. Every "speaker" (petition signer) is making exactly the same "statement," namely, that he or she supports being allowed to vote to approve or disapprove the "everything but marriage" act passed by the Washington legislature. The individual speaker is not exercising the kind of autonomy Margaret McIntyre exercised in deciding whether her identity would detract or add to her message. There simply is no "editorial judgment" being exercised in deciding whether to sign the petition, and it is therefore hard to argue that the free speech interest in Doe stands on the same footing as the free speech interest in McIntyre.
From an instrumental perspective, it might well be that some petition signers would think twice about signing if they knew their names would be released to the general public and put on the Internet. Thus, disclosure might chill speech, to the extent signing the petition is speech. Arguably,however, this rather weak interest is outweighed by the need for disclosure, where, as in Doe v. Reed, the speaker is taking action which has "direct legislative effect," to borrow a phrase from the Ninth Circuit. The petition signer is not acting merely in his role as citizen but in his role as citizen-legislator. When he steps into this role, the public's interests in transparency and accountability in the legislative process arguably trump the rather weak First Amendment speech interest involved, at least where there has been no credible showing that disclosure will result in harassment of or violence against the petition signer.
These, of course, aren't the only interests or arguments involved in Doe v. Reed. One certainly could cast it as a case about anonymous association or privacy rather than a case about anonymous speech. And I suspect the oral argument in the Supreme Court's is likely to focus on the probably outcome-determinative question of whether to apply intermediate scrutiny, as the Ninth Circuit did, or strict scrutiny, as McIntyre might seem to dictate. This question is particularly interesting in light of the Supreme Court's seeming approval of disclosure requirements in the electoral context in its recent decision in CItizens United. Regardless of how the case comes out, it should be fun to watch.
When is finality . . . final?
At this Friday's conference, the Supreme Court is scheduled to consider a petition for rehearing in Melson v. Allen. (SCOTUSblog posted an item on the case a couple of months ago, when the Court requested a response to the petition for rehearing.) It is pretty rare that a petition for rehearing has any chance of going anywhere, but this one is worth watching because the Court at least thinks it is worth requesting a response. The case involves an interesting problem of appellate procedure.
The basic facts, as I understand them, are these: Melson is a habeas petitioner. The Eleventh Circuit denied his habeas petition as untimely. He then petitioned for certiorari, which the Supreme Court denied on October 5, 2009. Then, on October 13, the Supreme Court granted certiorari in Holland v. Florida, another Eleventh Circuit habeas case that raises a similar issue of timeliness. Melson then filed a petition for rehearing of the denial of cert., and the Court requested a response from the state. It is highly unlikely that the Court would grant Melson's case for plenary consideration; Melson's more reasonable hope is that the Court will now hold his case for Holland and then, if Holland comes out in a way that might help him, vacate the denial of certiorari and issue a GVR (grant, vacate, and remand for further consideration) in light of Holland.[fn*]
The reason I find this case interesting is because it implicates the question of when we decide that a case is over. This gets very complicated because of the habeas context that is involved here, but to speak in more general terms, we usually treat a case as over when the Supreme Court denies certiorari. If the law changes before that, you might get a GVR instead of a denial of cert., but if the law changes after that, you don't. (I'm simplifying a lot here; for example, one could try to reopen the case in the district court, etc., etc.) In some ways it seems arbitrary to allow litigants' fate to turn on the difference between Monday and Tuesday, but it is hard to avoid that problem in any system with a cutoff date. Further, granting relief here would create its own arbitrariness, because this isn't the sort of thing the Court can or would want to do in every case. The Court wouldn't want to encourage lots of petitions for rehearing. All of these factors favor denying rehearing.
Yet on the other side, there are considerations that support holding the case and later granting rehearing and GVR'ing if Holland comes out in the petitioner's favor. The fact that the denial of cert. in Melson's case came so soon before the grant in Holland tends to heighten the sense of inequitable treatment. This is a capital case, which raises the stakes further. Plus, one can easily imagine a scenario in which the Melson petition was not denied on Oct. 5. The Court often realizes that multiple pending petitions raise related issues and processes them in a coordinated way. Perhaps that didn't happen here because the conference at which Holland was considered wasn't until Oct. 9; since the cases were on different timetables, maybe nobody inside the Court saw the possible connection. (As should be obvious, this is all speculation.)
In any case, there are reasons to go either way. I would note that, in a relatively small number of instances in the past, the Court has vacated a denial of certiorari, granted rehearing, and GVR'd in light of a case decided after the denial of cert. (See here at p. 48 n.162.) One would expect the Court to be most willing to do that if it thinks that an imperfection in its own case-handling procedures led to a case not being held when it should have been, though I'm not sure that can explain all of the prior cases. If the Supreme Court's upcoming orders list doesn't show a denial of rehearing in Melson, we might have another case to add to the list.
[* For those who aren't familiar with GVRs, the Court issues these couple-sentence orders all the time. The most common situation in which they are used is when a new Supreme Court ruling casts doubt on a lower court case that was decided before the new precedent came down. The GVR lets the lower court take another look at the case under the new law.]
Strategic Constitutionalism and Resistance to Brown
In The Ghost of Jim Crow, Anders Walker has written such an interesting and provocative study of the efforts of “moderate” southern leaders to resist Brown that it is difficult decide which thread to pick up. Let me briefly highlight what I see as several particularly valuable contributions Walker makes to the history of the post-Brown South. Then I will turn to one of the broader, more theoretical claims of the book—that the moderates practiced a distinctive “strategic constitutionalism”—and suggest some possibilities and limitations of this concept.
One of the great strengths of this book is that Walker takes seriously state-level governance. This is partly a product of his choice of protagonists for the book—Mississippi Governor J.P. Coleman, North Carolina Governor Luther Hodges, and Florida Governor LeRoy Collins—three men who obviously took seriously the capacities and limitations of the state as a governing institution. Walker makes the valuable point that the defense of segregation in the aftermath of Brown was not just a continuation of practices and policies that had been previously established as bulwarks for Jim Crow. Rather, it demanded significant innovation. It required creative thinking and collaboration. Walker is particularly good at charting the network of influence between the southern states. The governors he profiles were in regular contact with one another, comparing strategies and sharing policies.
The moderate defense of segregation was, in short, very much a political process, demanding the creation of new governing institutions and reforms to existing ones. The process of centralization that civil rights activists demanded from the federal government was replicated on the state level, with southern governors pushing programs designed to centralize and modernize state institutions. This was all part of an effort to exercise more control over the twin threats to their moderate path: the civil rights activists one side; the KKK and other segregationist extremists on the other. In this way, the moderates were at once defenders of the old racial order and modernizers—an apparent paradox that Walker’s book helps to explain.
While the central contribution of the book is in flushing out of the historical record of the defense of segregation in the wake of Brown, Walker also draws out some broader claims from his material. A central claim he makes is that the moderates embraced a distinctive vision of constitutional development: “strategic constitutionalism.” I found the concept of strategic constitutionalism suggestive, but ultimately underdeveloped as a theoretical framework for his study. References to strategic constitutionalism appear periodically throughout the book, although it never receives a sustained analysis. As I understand it, strategic constitutionalism is a kind of constitutional claim-making by indirection. When faced with an interpretation of the Constitution that one opposes, rather than marshalling lawyers, writing briefs, and going to court, a strategic constitutional response would be to focus on the world of politics and culture. The goal is to influence public opinion and forge political alliances. After Brown, the moderates sought to demonstrate to the nation that the South was not dominated by demagogues, that there were reasonable explanations for why the white South might not want to embrace integration. If successful here, they assumed, Brown’s reach would be limited. The constitutional meaning of equal protection would, in effect, move closer to the moderates’ position and further from the NAACP’s.
This is all surely right. And this general approach, which emphasizes the extrajudicial component of constitutional change, seems a perfect framework for Walker’s book. But I like to see the concept flushed out a bit more. How generalizable a concept is strategic constitutionalism? Were the moderate opponents of Brown distinctive in recognizing the role of political support and public opinion in dictating the ultimate meaning of Brown? This cannot be right. Even if the NAACP lawyers put exaggerated faith in the power of a Supreme Court opinion to break the back of Jim Crow, the civil rights community fully recognized that the battle was one for the hearts and minds of the American people, and that this battle for public opinion was ultimately a battle for constitutional principle. So were Roy Wilkins and Martin Luther King, Jr., also practitioners of strategic constitutionalism? For this matter, couldn’t we say that the extremists defending segregation also recognized the core insights of strategic constitutionalism? While, as Walker emphasizes, their tactics were ultimately counterproductive, helping to shift national opinion behind the civil rights movement, for a time Massive Resistance helped unify the South and sent a clear message to the nation that Jim Crow was not going to go down easily. And this surely had constitutional consequences, emboldening southerners in Congress to continue their stand against civil rights reform, challenging the liberal faith in the capacity of legal reform to uproot entrenched social practices, and discouraging further interventions by the Supreme Court. (With the limited exception of Cooper v. Aaron (1958), the Court was conspicuously silent on the question of school desegregation for a decade after Brown.) At this point I begin to wonder whether there is anything but strategic constitutionalism. Even the most litigation-centered reform campaigns must recognize that politics and public opinion play a role in the success or failure of their causes (regardless of whether or not they secure victories in court).
One more point on strategic constitutionalism. While broadening the definition of constitutional claim-making to include extrajudicial contexts, Walker seems to fall back on a traditional conception of the ultimate target of these constitutional claims. Creating political and popular support for the moderate defense of segregation was a means to a specific end: to convince the Supreme Court to issue decisions favorable to the cause of the southern moderates. Strategic constitutionalism, Walker writes in the introduction, was “aimed at convincing the Supreme Court to qualify its Brown holding.” But why not extend the insight from means to ends? An acceptance of extrajudicial action as a method of constitutional argument would seem to invite a broadening of the ultimate targets of these constitutional claims. Extrajudicial actors are not just intermediaries between those who hope to influence constitutional law and the Supreme Court’s promulgation of constitutional doctrine. They should also be recognized as the ultimate audience for constitutional argument. Certainly a central goal of strategic constitutionalism was to convince the Supreme Court to deliver opinions supportive of the position of southern moderates, as it did, for instance, when it upheld pupil placement plans in 1958. It would seem just as consequential, however, to consider other targets: lower federal courts, of course, particularly since most of the burden of implementing Brown was left to them; but also political actors—members of Congress, who let the Court stand alone on the desegregation issue for a decade; and executive branch officials who had responsibility for enforcing civil rights laws. Extrajudicial constitutionalism—strategic or otherwise—should be recognized as more than just an alternative pathway to influencing the Supreme Court.
While these comments about strategic constitutionalism are, in part, critiques, hopefully they also indicate the rich potential Walker’s history contains for expanding our understanding of constitutional development. I hope to see Walker continue to explore these issues in his future work.
"How to Write an Incendiary Blog Post"
As a service to our guest-bloggers, and via Arts & Letters Daily, here is a cute piece from The Boston Globe on how to write an incendiary blog post. Here's the first paragraph:
This sentence contains a provocative statement that attracts the readers’ attention, but really has very little to do with the topic of the blog post. This sentence claims to follow logically from the first sentence, though the connection is actually rather tenuous. This sentence claims that very few people are willing to admit the obvious inference of the last two sentences, with an implication that the reader is not one of those very few people. This sentence expresses the unwillingness of the writer to be silenced despite going against the popular wisdom. This sentence is a sort of drum roll, preparing the reader for the shocking truth to be contained in the next sentence.The author later writes: "This sentence contains a link to an Internet video featuring a cat playing a piano." And the piece concludes: "This sentence invites readers to respond freely and without constraint as long as those responses fall within certain parameters. This sentence consists of an Internet in-joke that doesn’t quite fit the topic."
Comments are welcome, as long as they are civil. This means you, Patrick!
Should We Care Why the Founders Chose a Written Constitution?
As Keith Whittington tells it, the founders deliberately chose a written constitution for two reasons. First, only a written document could be presented to the sovereign people for ratification and thus provide a popular check on the actions of government officials. Second, only a written constitution could guard against the evils the founders had come to associate with the unwritten British constitution—chiefly, uncertainty and mutability in the face of political temptation. To serve either of these purposes, however, the meaning of a written constitution had to be fixed at the date it was authoritatively ratified by the people. Otherwise, the Constitution would cease to embody the will of the people and cease to provide a fixed bulwark against abuse by their governmental agents. For these reasons, Whittington argues, only an originalist approach to constitutional interpretation is consistent with the founders’ embrace of a written constitution.
So stated, Whittington’s argument appears to rest entirely on the authority of the founders’ reasons for embracing a written constitution, which he offers no independent justification for treating as authoritative. Whittington is sensitive to this issue, however, and expressly disclaims any argument from authority. Rather, he suggests, we should look to the founding “in search of other people who have thought about … whether or not to have a written constitution and thus may be expected to have considered the matter in depth.” In so doing, he emphasizes that the arguments and historical purposes of the founders “have weight because of their content, not their source.”
This acknowledgment insulates Whittington’s argument against charges of boot-strapping, but it creates two other problems. First, if it is truly the content and not the source of the founders’ reasoning that matters, that content is essentially identical to the hotly contested popular sovereignty and rule of law arguments for originalism. This does not mean we should not take it seriously, but it does mean writtenness is doing little if any independent work. Second, relying on the founders’ arguments from popular sovereignty and constraint is even more problematic than relying on contemporary arguments of this sort because the founders were operating in a very different legal, historical, and political context. They were debating a new constitution; contemporary theorists are debating a very old one. That means the most powerful objection to the popular sovereignty argument—the dead hand problem—was much less of an issue for the founders than it is for contemporary originalists. The founders were also operating in a new nation at a time of severe political and social instability; contemporary theorists are operating in a comparatively stable and deeply rooted political and social order. For this reason, fixed constitutional constraints probably seemed more pressing to the founders than they do in today’s mature democracy, which has many other resources—legal and otherwise—for restraining abuses of government power.
In short, the perceived connection of writtenness to originalism in the founding era offers no compelling reason for believing that writtenness entails originalism today. It is either an argument from authority based on the very authority it is supposed to justify—a classic case of bootstrapping—or it collapses into an even weaker version of the conventional arguments from popular sovereignty and fixed constitutional constraints. Either way, writtenness alone tells contemporary interpreters nothing about which interpretive approach to adopt.
Attack on the Moderates
It’s an honor to be here to discuss Anders Walker’s The Ghosts of Jim Crow, especially with Willoughby and Chris, two of the most exciting scholars of the post-Brown Civil Rights era.
Jim Crow and its end is one the most vibrant areas in legal history; we’ve had some really terrific books in this area in recent years. Just scanning books on the twentieth century race and law section of my bookcase brings Risa Goluboff’s Lost Promise of Civil Rights, Mary Dudziak’s Exporting American Dreams: Thurgood Marshall’s African Journey, and Paul Frymer’s Black and Blue to mind immediately. Even in that distinguished company, Anders’ book shines; it is one of the most original and most important books I’ve read in the legal history of twentieth-century civil rights. Anders presents a bold thesis, which challenges how we think about our friends (or people I’ve thought of as my friends up until recently): the moderates in the post-Brown South.....
Often it’s the radicals who’re disliked by historians. Take the 1940 movie Santa Fe Trail, which starred Errol Flynn as Jeb Stuart and – get this – Ronald Reagan as George Custer. They were young army officers who helped put down the John Brown Rebellion in 1859. (I think the stuff about Custer is fiction; Stuart actually was part of putting down the rebellion.) Don’t believe me about President Reagan? Check out youtube at 2:25. In that movie, John Brown looked like a deranged nut (which maybe he was – but that’s somewhat aside from this story). It was the moderate army officers who were the heroes of this movie; it was the abolitionist extremist who was the villain. That fit with what historians thought at the time; they referred to the Civil War as the product of a blundering generation who allowed extremists on both sides to drag our country into a needless war. The sober moderates were the people historians–and lots of other people–respected in the 1940s and 1950s. And I suppose in part because our country is so moderate, we have a national affection for the moderates, who keep their eyes on long-term goals. The sober, hard-working, well-meaning moderates usually aren’t “sexy”; they don’t "resort to violence"; they’re "quite, inoffensive people." And they’re often successful in business and thus are "the heart of their community."
Moderates have a good reputation in the Civil Rights movement as well. Think of that most famous of moderates, the fictional lawyer Atticus Finch. (Malcom Gladwell had a nice discussion of southern moderate whites last summer in the New Yorker.)
But there’s a turn taking place in interpretation. The extremists have become, in some odd ways, the heroes. In the phrasing of Glenn Eskew’s brilliantly titled book, But for Birmingham, Birmingham extremists were catalysts for change. Bull Conner was so outrageous that he drove moderates into the pro-Civil Rights camp. There’s a lot to that – and the brilliance of one of the Civil Rights strategies was the realization that extremists were their own worst enemies. Violence is so, so frequently counterproductive. It certainly was in Birmingham. Thus, extremists are – inadvertently, obviously – some of the most important catalysts for change. This makes me think that somewhere in Birmingham, amidst the statues they've put up of late of heroes of the Civil Rights era, there ought to be a statute to old Bull, because he sure did a lot to promote the cause.
For a long time, the daring radicals opposite old Bull, the Freedom riders and the sit-in stagers, and the marchers from Selma to Montgomery, have been our nation's heroes, of course. One might add, too, the Tulsa, Oklahoma veterans of the "Great War," who went off in 1921 to fight to protect their community from the white mob with the strains of WEB DuBois' editorial "Returning Soldiers" echoing their head: "We return. We return from fighting. We return fighting." The extreme conservatives and the radical reformers are staging a comeback among historians.
Now, put that picture together with Anders’ interpretation of moderates in The Ghosts of Jim Crow. Anders revisits three “moderates”: Governors J.P. Coleman of Mississippi, Luther Hodges of North Carolina, and LeRoy Collins of Florida. He shows that a lot of what they did had the effect of limiting opportunities for equality or for protest. (And sometimes those effects were directly intended). This is a really rich volume. Let me steal a quick summary of several Anders’ key points from his introduction (5). First, that Brown was an important step in the emergence of civil rights. Anders is certainly correct here; I prefer his interpretation to those who think of Brown as a “hollow hope,” or those who see Brown’s key function as creating a white backlash. Second, the governors illustrate how state leaders react to Supreme Court decisions and develop law. (This is an element of what we’re increasingly referring to as “popular constitutionalism.” Anders really pushes back the frontier of knowledge here – I think this is a model for how to link legal thought and considerations of political expediency with the action of executive branch officials, a topic that goes beyond the "popular constitutionalism" literature I've seen.) Third – and most directly related to my comments below – even as the governors limited violence against African Americans, they “discretely shifted the burden of constitutional change onto black shoulders.” To take one example, Florida Governor Collins shut down bus service in Tallahassee when African Americans boycotted the segregated buses. One can imagine Collins thinking: “You don’t like segregation? Fine; there won’t be any buses at all. How do you like that?” So much for moderation.
Anders quite convincingly depicts the governors as people who dragged their feet and worse. That poses, for me, two lines of questions. First, were substantially all white moderate politicians trying to drag their feet on change ... or worse? Do we no longer think that moderates might actually have believed that their methods were better-suited than confrontation with conservatives? Isn’t it possible, indeed likely, that many moderates wanted change, they just wanted it to proceed in a slower and more orderly fashion than many others? Ok. Maybe moderates were just using the moderation as a cover for doing nothing. You may recall that Martin Luther King thought that the counsel to “"wait" has almost always meant ‘never.’” Similarly, King spoke of the “tranquilizing drug of gradualism” at the March on Washington. Anders revives that insight and adds extraordinary detail to King’s interpretation.
Second line of questions, then: Is there no reasonable possibility that the moderates’ methods – even if they were often based on the desire to do nothing – really were effective in bringing about some positive change? Was there nothing to Booker T. Washington’s counsel that African Americans seek gradual accommodation? I don’t carry a lot of brief for Washington; I’m on WEB DuBois’ side on this. But I think that as a strategy, Washington may have been onto something – maybe not much, but not nothing.
To recap, then, my questions about Anders’ book: are Civil Rights era southern moderate politicians generally as “bad” as those in this book? And if they are, is moderation itself conservative and anti-reform. (I suppose an important part of the answers to these questions turns on how we define a moderate. Moderates are, after all, not liberals or radicals – they’re people who want to promote some more gradual goals. But then again, how moderate is someone who proposes making it a misdemeanor for a single women to have more than one child? (81) Hey, at least that was an improvement off the idea we’d sterilize unwed mothers. Maybe what we need is to reframe our definition of people as moderate or conservative? Anders raises a lot of questions, even as he brings a lot of precision and skepticism to the history of the south's response to Brown. He's set a framework that we're going to be talking about for a very long time; and I suspect his insights will be exported from the post-Brown south to lots of other places and other times, like the antebellum south....
Now, two final questions. First, how might we fit fictional southern moderate lawyer Atticus Finch into this picture? And now that moderates are coming in for a tough time of it, how are the radicals going to come out?
A Smarter Southern StrategyI am pleased to be a part of this discussion of Anders Walker’s important and thought-provoking The Ghost of Jim Crow. Walker takes on two well-worn themes of civil rights history—the southern white moderate and the backlash to Brown—and in so doing reorients our understanding of resistance to desegregation.
While police dogs, fire hoses and politicians like George Wallace loom large in the story of resistance, Walker places moderate southern governors back in their central, rightful place. Even before the Brown decision came down, these leaders saw the writing on the wall and were strategizing how to maintain the racial separation they thought essential to the South. The governors consulted with each other and legal experts, while mustering every weapon at their disposal, including informants, local leaders and the press. They developed pupil placement laws by transforming assignment criteria from racial categories to group-specific standards like illegitimacy and poverty that disproportionately affected segregated black communities. To reinforce the new race-neutral criteria, the leaders instituted state welfare and family law reforms designed to create disparate effects, while reigning in rogue local sheriffs to minimize violence. Walker parses the moderates’ sincere belief in the benefit of Jim Crow to both black and white communities. Yet the author also looks below the political posturing to the powerful mechanisms they established to reinforce race-based inequality. Changing the face of southern resistance from the nullifiers and neo-confederates to these powerful, thoughtful leaders, Walker helps us better appreciate the powers aligned against substantive change.
One of Walker’s most interesting contributions is his insight that segregationists pursued their aims on multiple fronts. The governors worked within the courts, but also with the media, through discussions with black leaders, via state law reforms, and eventually from influential positions in the federal government. The “strategic constitutionalism” employed by the governors seems to have broad effects, even changing the very language used to discuss desegregation. And hasn’t this moderate framing of the debate won out–the rhetoric around civil rights has metamorphosized from the immorality of exclusion into the unfairness of inclusion. I would be very interested to hear the author’s further thoughts on how in fifty years the southern resisters’ vision came to dominate civil rights jurisprudence.
Book Club on "The Ghost of Jim Crow" Begins Today
Our book club on "The Ghost of Jim Crow" begins today. You can look forward to contributions from:
- Willoughby Anderson, Law Clerk for Senior Judge John T. Nixon, United States District Court for the Middle District of Tennessee.
- Alfred Brophy, Reef C. Ivey II Professor of Law at UNC School of Law.
- Christopher Schmidt, Assistant Professor, Chicago-Kent College of Law.
- Anders Walker, Assistant Professor, Saint Louis University School of Law.
Please feel free to add in comments of your own. We hope you enjoy the club.
Tuesday, February 16, 2010
Does Originalism Follow from Our Commitment to a Written Constitution?
Arguments about the nature of judicial review and appropriate methods of judicial interpretation based on the “writtenness” of the Constitution date back at least to Marbury v. Madison. In recent years, originalists ranging from Jack Balkin to Keith Whittington to Randy Barnett have argued in varying fashion that an originalist interpretive approach follows logically from “our commitment to a written constitution.” Perhaps the most common (though not the strongest) version of this argument holds that only originalism is consistent with the primary purpose of written constitutions—namely to subject the power of judges and, through them, other government officials, to fixed constitutional constraints. The echo of Marbury should be obvious. There, Chief Justice Marshall asked, “[T]o what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained?” Contemporary originalists ask, “To what purpose do we hold our government officials to written constitutional limitations, if the content of those limitations evolves over time according to the interpretations of the very officials intended to be restrained?”
This argument may or may not be persuasive on its own terms. There is no reason in principle that a written constitution should be any more or less flexible—any more or less constraining—than an unwritten constitution. That depends on the content of the constitution, as understood by contemporary interpreters, as well as the accepted modes of constitutional revision, neither of which is linked in any necessary way to the formal medium in which a constitution is expressed. But even if a written constitution, interpreted according to originalist methods, is an essential prerequisite for the existence of fixed constitutional constraints, it remains to be shown that fixed constitutional constraints are normatively preferable to the available alternatives.
Here the argument from writtenness runs into all the objections commonly advanced against the standard constraint-based defenses of originalism: Original meaning is frequently ambiguous, limiting its power to constrain judges and other officials, even if those officials are acting in good faith and free of subconscious bias—both, of course, generous assumptions. In fact, the history invoked in originalist opinions may give an insidious veneer of objectivity and passivity to judicial decisions that are in reality the product of political choices. More fundamentally, original meaning is hardly the only available constraint on official power. Judicial precedent, political process theories, or the Holmesian puke test might serve equally well, especially in light of the many institutional and political constraints that operate independently of any theory of constitutional interpretation. Finally, even if these alternatives prove less effective than originalism qua constraint, one or more of them might produce better substantive results, on balance, than unswerving adherence to original meaning.
For purposes of this post, I have no interest in passing judgment on these objections. The critics might be right. But original meaning also might be more determinate or more substantively attractive (compared to the plausible alternatives) than the critics of originalism have supposed. The important point is that everything turns on these questions and virtually nothing on the argument from writtenness. If original meaning is the most effective and substantively attractive constraint available, judges should interpret the constitutional text according to its original meaning to the extent possible. If not, they should employ whatever alternative approach satisfies this criterion. Writtenness is simply a nonfactor.
Monday, February 15, 2010
Wow, two big “d” words. I’m in the middle weeks of my law and religion seminar, and as such have just revisited a paper I wrote what seems like “forever” ago—even though it was really only in 2006—and cringed at much of what I found there. Such, perhaps, is the life and learning curve of the assistant professor. (Perhaps this phenomenon itself is worthy of a post!) But, despite its many shortcomings, there is (I think) the kernel of something interesting in the old piece, and I thought maybe I’d run a brief (and somewhat revised) version up this flagpole.
The problem I was trying to get at was what I see as the confused and confusing state of Establishment Clause jurisprudence, and I hoped to better understand things by getting back to the structural rationale underlying what Steven D. Smith has called the “disestablishment decision.” Smith has taken on this project himself in a number of different ways, and I find his position Separation and the Secular (67 Tex L Rev 955) to be particularly persuasive.
Basically, he argues that, somewhere in the 20th century, we abandoned the original “separation” understanding of disestablishment in favor of our current “secular state” conception. The former requires (only) that: (1) the state stay out of the internal business of churches, and (2) the church not assume any of the powers or authority of the state. The latter seems to require that we maintain the appearance of a “secular” state. Smith does an excellent job of demonstrating how the “secular” construction runs us headlong into various conflicts, inconsistencies, legal fictions, and problematic judicial talk about what does or doesn’t advance religion. The “separation” construction, by contrast, dissolves many of the conflicts and promises to render a more consistent and intelligible doctrine moving forward. As excellent as Smith’s account is, it rests primarily on instrumental or consequentalist justifications—that is, its value lies in the likelihood that it will produce good doctrinal results (in terms of coherence, consistency, etc). As such it left my deontological desires feeling a little unfulfilled, and so I wanted to come up with something that might, by happy coincidence, produce a more intelligible body of doctrine, but which was primarily a duty-based—but not theological—account of the disestablishment structure.
The fundamental problem, I argued, lies in two sometimes divergent commitments underlying the American democratic vision—one instrumental and the other deontological. First, we have an instrumental commitment to a government that maintains peace/order, protects us from the Hobbesian state of nature etc, and does so based on our participation in the processes of decision. Second, we have a deontological commitment to individual autonomy; to a system that allows us to make our own moral choices and act on them for their own sake. One divergence between these commitments arises when—left to identify and act (or not) on my moral duties—I end up doing something that threatens peace/order, etc. Another divergence may arise when I fail to identify or act upon the duty to participate in the processes of decision that make democratic government possible. Put another, perhaps simpler, way, our democracy has a deontological commitment not to coerce some of the actions upon which it depends for its existence and success.
I expressed the deontological part of this (in language I now regret) in terms of “dialectic of virtue” that was supposed to express sort of a classic Kantian view of moral agency: we can only truly fulfill a moral duty as of an act of free will. So, to create the possibility of authentic moral agency (to treat people as ends) government must protect our freedom to choose whether to identify or act upon moral duties; but, to ensure some kind of normative order, we also need to have people choose well. I concluded that the divergence (or dialectic) was such that government could not solve the problem on its own; democratic success, I argued, depends upon extra-governmental forces. In short, I argued that at least one strand of disestablishment thinkers (call them the “civic republicans”) thought the normative, “choosing well” part of the dialectic must be left, or entrusted, to religion or God. Thus the structural logic of disestablishment was that it kept the government in the “freedom of choice” business and out of the “choosing well” business. But, as the fear of God has perhaps waned as a normative force (or at least presents a more diverse normative face), we have had to replace it with something less theological in order to keep the structure working. I argued that we have filled in the gap with various “social institutions” (family, teams, charities, churches, etc.). Thus, the current structure sees “state institutions” devoted to protecting the freedom to choose, and “social institutions” helping us to choose well. The constitutional trick then—and it’s a big trick—is differentiating between the two kinds of institutions, and I suggest that this explains why the borderline cases (read, “schools”) arouse so much controversy.
Ultimately, I do think this account might provide the basis for a more consistent and coherent Establishment Clause doctrine, but really I would be happy if it comes across as a somewhat coherent explanation of the deontological (again, not theological) commitment underlying the disestablishment decision.
How Come the Killer Scientist was not Charged with Gun Possession in the Massachusetts Shooting?Dr. Amy Bishop, the Alabama professor accused of shooting six colleagues, three fatally, killed her brother with a shotgun in 1986. She was not charged, and the current police chief of the town has suggested that a former police chief covered up what might have been an intentional crime. Whether the shooting was intentional or accidental, under every version of the facts Dr. Bishop possessed a shotgun, and the police report does not indicate that she had any license or permit, although it lists permits for others in the house. If so, she should have been arrested for that. For years, the Commonwealth of Massachusetts has had one of the most restrictive gun laws in the country. Even to possess a long gun in the home requires a permit called a "Firearms Identification Card" abbreviated as FID. Mass. Gen. Laws Ann. Ch. 140, s. 129C. There are exceptions, such as temporary examination in the presence of an FID holder, but according to Dr. Bishop's story, no exceptions apply. Possession without an FID is punishable by up to two years incarceration. Mass. Gen. Laws Ann. Ch. 269, s. 10(h)(1). If the killing was an accident, perhaps even manslaughter would have been too harsh a charge. But as a matter of prosecutorial discretion, if you are ever going to prosecute someone for possessing a firearm in the home without a permit, it would seem that someone who killed another person as a result of their violation of law would be the one. Had she been convicted of the crime, it might have been harder for her to get her hands on the murder weapon. She likely would have had to do so illegally, and she looks like such a goof (no offense) that cautious criminals might have steered clear.
Deciding When To Decide - Appellate Procedure and Legal Change
Suppose you are a judge on the court of appeals. The case before you concerns some rule or doctrine from a thirty-year-old case, X v. Y. A couple of months ago, the Supreme Court granted certiorari in a case that also concerns the rule in X v. Y. You are almost certain the Supreme Court will repudiate X v. Y. (Perhaps last year the Court harshly criticized the old rule in considered dicta and suggested it was ripe for overruling in an appropriate case.) What should you do?
A helpful agent might suppose that the best approach is to decide every case by asking, What would SCOTUS do? If that is the right question to ask, it would be clear to you that you should not follow X v. Y. All the same, you also know that the Supreme Court itself has cautioned that lower courts should not be proactive in overruling but should instead wait for the Court itself to deal the final blow to a staggering precedent. So, dutifully, you follow the existing precedent of X v. Y. A few months later, the Supreme Court inters X v. Y.
When commentators discuss this problem, the issue is typically framed in terms of whether anticipatory overruling is desirable or appropriate; more generally, the debate concerns whether lower courts should attempt to predict how the Supreme Court would decide a case or instead must strictly follow existing precedents. Those are good questions, but framing the problem this way overlooks another dimension of the problem. Rather than now ruling in either direction, the lower court could just wait until after the Supreme Court decision and then rule accordingly. To be sure, waiting might not always be the right choice. The point is just that the lower court has to choose not just which way to decide, but when to decide.
If this problem interests you, I have just posted a draft paper addressing these topics here. The abstract follows:
Legal change is a fact of life. The need to deal with legal change has spawned a number of complicated bodies of doctrine. Some of these issues have been studied extensively, such as doctrines concerning the retroactivity of new law and the question whether inferior courts can anticipatorily overrule a moribund superior court precedent. How such questions are answered affects the size and the distribution of the costs of legal change. Less appreciated is the way that heretofore almost invisible matters of appellate procedure and case handling also allocate the costs of legal transitions. In particular, this Article focuses on lower courts’ discretionary decisions about when to decide the cases that come before them: should lower courts continue to decide cases in the regular course even when a change in law is in the offing, or should they delay adjudication until after the dust has settled?
The Article has both positive and normative aspects. It begins by drawing together several bodies of doctrine in order to present a unified account of what we can call our system’s law of legal change. The Article then presents a case study of the six-month interval between Blakely v. Washington, which invalidated a state sentencing scheme and cast substantial doubt on federal sentencing guidelines, and United States v. Booker, which then held Blakely applicable to the federal system. A majority of the appellate courts that addressed the question upheld the federal guidelines during this transitional interval. Beneath the surface, however, the various courts upholding the guidelines managed cases very differently. Some circuits bore much of the cost of legal change themselves, while others shifted some of the cost to litigants and other courts. Based on the insights gleaned from this episode, I suggest a framework for evaluating and perhaps improving how courts process cases during transitional periods. Case management decisions are highly context-specific, which makes it difficult and perhaps undesirable to formulate general rules, but we might be able to improve courts’ handling of such matters by altering the institutional environment and modifying incentives.
Must Interpretation Precede Evaluation?
It is something of a shibboleth among certain originalists that interpretation (defined as the search for original meaning) necessarily precedes evaluation. This claim is stated as a necessary conceptual truth about interpretation and, if in fact it is such a truth, nonoriginalist theories of interpretation are in real trouble. But the claim is not a necessary truth, for at least two reasons.
First, even if interpretation of a written text must begin by identifying some finite set of meanings associated with the text, there is no reason to think that this set must be limited to the text’s original meaning. For example, interpreters might begin by consulting the full range of meanings present-day Americans could plausibly understand its written words to bear, including but not limited to their original public meaning, the intended meaning of the framers and ratifiers, contemporary public meaning, and glosses attached to the text by history and tradition. This class is clearly broader than original public meaning, but it is hardly infinite. Social, legal, and linguistic conventions prevent the constitutional text from being plausibly interpreted to mean just anything at all.
Second, there is no reason that the identification of which meanings will count as associated with the text cannot depend in part on evaluative considerations—either at the wholesale level of choosing a theory of interpretation or the retail level of interpreting a particular textual provision. Interpretation is a purposive human practice. It is perfectly natural—indeed, virtually inevitable—that its contours will be shaped by the ends for which it is pursued.
Being sued v. being held liable
One of the biggest popular/public/lay misperceptions of the legal system is a failure to grasp the difference between being sued and being held liable. The belief is that if I do everything "right," then I won't be sued at all (not just that I won't be held liable in the end). And the belief is that being sued is a tragedy, just as bad and just as telling as being held liable. Two recent examples--one real, one from popular culture (which, for better or worse, is responsible for much of the popular understanding of the legal system).
On a recent episode of "Grey's Anatomy," a patient wakes up from anesthesia while still on the operating table. The new chief of staff/surgery immediately panics that the patient is going to sue and begins trying to figure out how to keep that from happening. Fortunately, the doctors discover that she woke up because of a medical condition that threw off the equation of anesthesia; she agrees to complete her surgery and not to sue.
But of course the hospital is going to be sued; hospitals get sued all the time. And the head of a major hospital would know this (probably because he spoke with a lawyer, not to mention experience). And the discovery that the patient's medical condition caused the problem would not preclude the suit--it might get them out of liabilty and perhaps even at an early stage. But that is why we litigate. And that is why most cases settle in any event. By the way, "Grey's Anatomy" is not alone; just about every medical show presents being sued for malpractice (regardless of the outcome of the case) as a major knock against the doctor/provider's medical ability. Being sued, by itself, is the story.
A couple weeks ago, my wife, who is interim coordinator of the internship program at FIU's School of Social Word, conducted training for the internship field instructors (the in-placement supervisors). One of the modules was on legal issues surrounding social-work practice--what they can do to protect themselves, how to document treatment, how to document incidents, etc. She received a number of questions from incredulous instructors who seemed shocked that, even if they did all that, they might still be sued and might have to defend (even by simply filing a motion to dismiss). The impression seemed to be that the judge, upon seeing that the social worker had done everything "right," would simply throw the case out. There was no understanding that the parties had to argue these issues to the court, which meant appearing, hiring an attorney, and defending. Nor was there an understanding that whether the person "did everything right" ultimately was determined by the neutral arbiter (judge or jury). So while a person believes he did everything right, that arbiter may disagree.
I am not trying to minimize the burden of having to litigate. It is expensive and extremely frightening, at least for individuals (far less so for major institutions). And perhaps it is simply an extension of how people would feel about being a criminal defendant (when they can insist they did "nothing wrong") or the public's attitude that an acquittal (or a finding of non-liability) simply means the defendant "got away with one."
What is perhaps more troubling is that our students come to law school with this attitude and perception. And getting them away from that view is not easy.
Sunday, February 14, 2010
Teaching evaluations by faculty colleagues
At my institution, the evaluation process for each retention, tenure, and promotion decision includes class visits by other faculty members to observe the candidate's teaching. I imagine this is standard procedure everywhere. I have experienced this once already (my retention review) and before long will experience it again (tenure review). This is an important and valuable part of the review process. It would be inappropriate to leave evaluation of teaching solely up to students. (Equally, I think it would be wrong to leave student evaluations out. A complete picture incorporates both. And it might incorporate other information as well. I wonder whether any schools attempt to use outcome measures of student success linked to individual instructors?)
The in-class observations are a bit awkward, probably unavoidably so. For one thing, there is the consciousness of being evaluated in person, which most people don't especially enjoy, though of course it goes with the territory. It also makes me wonder what the students think, if they notice there are observers. ("Why are they keeping an eye on this guy?") I suppose I could just tell the students to expect visitors and why. But apart from this inherent mild awkwardness, the visits themselves have been fine, in my (limited) experience. In conversations with people at various law schools, I have heard some stories about visits that don't go so well - as when the visitor starts stumping the instructor with questions. One suspects some of these are apocryphal. But if you have a story that will keep junior profs up at night from now until tenure, feel free to share.
Saturday, February 13, 2010
Climate Change: Is our social world "heating up"?I'm prone to dismiss the endless media hype of the angry Americans who were confronting congressional Democrats at the "town hall" meetings on health care back in August or telling pollsters this month that they are less trusting in the federal government doing the right thing than at any time in history. Politics after all has a long history of hyper-ventilating and the media has long thrived on it. But is the "anger thing" in politics part of a larger trend toward our social world heating up more with emotions, especially the emotion of anger? May be I've been influenced by teaching Durkheim recently in my course on Punishment (he is the great social theorist of social heat) and I'm way of out of my domain here sociologically speaking, but here are a few observations and theories that might prompt the more knowing among you to set me straight on this.
- One of my undergraduate Legal Studies students is doing an honors thesis on the amazingly heated comments that readers leave the comment fields of respectable online newspapers these days (both here and in South Korea). I don't remember any comparable public expressions in my youth that weren't spray painted on the walls of Chicago's many viaducts.
- Corporate choices, whether by "free" internet service companies like Google (read Miguel Helft's article about Buzz NYTimes) or three dimensional service providers like JetBlue Airlines (marking the anniversary of last year's Valentine's Day snowstorm public relations disaster; read Susan Stellin's article about how airlines have responded in the NYTimes), seem to unleash massive amounts of fury by affronted customers.
Ok, I get it, the internet, twitter, facebook, cell phones, all make it possible to express this seething emotion, perhaps it was there all along? But I don't remember seeing it even close up. The only time I ever saw my father, who had a temper, get that mad at corporate conduct was once when a Brinks Truck blocked his exit from a parking place (and he was a Marxist for much of his life).
So here is an alternative theory. Our contemporary lifestyle is more and more penetrated by commercial relations. We don't just turn to companies to purchase the products and services needed by our relationships, baby carriages, washing machines, etc, we rely on them to sustain those relationships in their most basic and vital dimensions. This has opened a vast new terrain for profit and allowed the creation of flexible high speed life styles that allow for enormous productivity, but it has also opened a vent to some very deep and ugly emotions. Will these inevitably "heat up" our social and political climate?
Labels Matter, or the Irrelevance of Law
A recent poll conducted by CBS on the repeal of Don’t Ask Don’t Tell reveals some a fascinating result. Support for repeal depends substantially on whether you call “them” “homosexual” or “gay.” Fifty-nine percent support allowing "homosexuals" to serve in the U.S. military while 70 percent support allowing "gay men and lesbians" to serve in the military, a jump of 18 percent.
(h/t Joe.My.God) I have always been skeptical of the need to frame questions of fundamental rights through a marketing lens, and even of the significance of polling data in deciding such rights (in contrast to Nate Persily). But the results of this poll reveal that changing the label from “homosexual” to “gay men and lesbians” carries far more weight than the well-researched and indisputable constitutional arguments law professors have produced over the past two decades. I imagine that it’s sex-negativity that drives this shift - “homosexual” is all about “sex,” while for most in this country “gay men” might evoke Will and Grace, and “lesbian” brings the ever-popular Ellen DeGeneres to mind. Indeed, in the 17 years between Bowers v. Hardwick and Lawrence v. Texas, “gay” made (at least part of) the difference. The 2003 Supreme Court addressed “gay persons” and “gay men and lesbians,” and thus did not have to confront its own sex fears to decide the meaning of privacy. For the law professor crowd, which spends its days poring over theory, it is indeed humbling to think that our work would so easily trumped by a label.
Friday, February 12, 2010
Keys to Productivity?
I've been thinking about the keys to productivity lately, mainly because I've gotten a slow start on the numerous projects I plan to complete during my sabbatical. It is true that I've had lots of unexpected distractions in the last month, but the key to productivity, in my experience, is to learn to keep writing no matter how many distractions occur. So I'm trying to remind myself of some of the lessons I've learned over the years, which are roughly as follows.
Writing scholarly articles is a creative and hence an emotional process. One of the keys to productivity is to learn to overcome, sidestep, or simply accept the mental white noise that makes one afraid to commit an idea to paper. Before I had my first child (the year before I went up for tenure), I used to waste lots of time asking myself whether my idea was good enough to see the light of print. I still waste time second guessing myself but only a tiny fraction of the time I once did. I've realized that the mental and sometimes literal hand-wringing that accompanies beginning a new project is a luxury I simply can't afford.
Strangely enough, one key to productivity for me was to learn to accept that the process of writing is not linear. I used to expect myself to sit down in the chair and write like a robot: have the idea, outline the article, write the article following the outline to the letter. I don't know why I expected the process to work this way. I was an English major in college and never, ever wrote a paper using that process, but I somehow assumed that once I became a "professional" writer things should be different. As you might guess, trying to write an article that way, trying to "force" the process, led to panic and writer's block, which are emphatically not the keys to productivity. It was only when I accepted that I can write ten pages on some days and two sentences on others that I became more productive. I finally accepted the fact that my mind is often the most active on the days I write two sentences because my subconscious is working out the structure and the details of what comes next. It sounds hokey, I know, but I have truly come to trust that my subconscious will eventually "tell" me what comes next if I just get out of the way.
I even learned how to get out of the way. When I am having a really frustrating time in front of the computer and I've written the same sentence over for the fifteenth time, I pack up a bag with a 99 cent black and white composition book, a kitchen timer, and a black gel roller ball pen. I go to the coffee shop that I expect to be the quietest, and I sit and I write as fast as my hand will go for twenty minutes without stopping. This process is painful because I force myself to put down every idea I have, no matter how stupid it is, and to even write down every negative thought, such as "this is never going to work," "this doesn't make sense," "why did I start this project?". The first five minutes are always the hardest, but eventually something useful starts to emerge. I don't know why this works. I just know that it does. Always. It never fails that the core of the next section of my article is there somewhere amongst the dreck I've just committed to paper.
Learning to get out of my own way was the biggest contributor to productivity for me, but I have other little tricks as well. One of my mentors once said to me that every piece of writing represents a compromise with time, and this is the mantra that I repeat to myself when I can't quite let an article go. I don't, as I once did, wait to start writing until I've read every article ever written on the topic, and I long ago got over the notion that writing can only occur when you have several hours to sit and think great thoughts. One trick I learned while I was an associate dean was to ALWAYS have my writing project on one of the computer screens in front of me. It serves as a visual reminder to get back to work on writing the minute someone leaves your office. Even if you write one sentence at a time, it adds up.
The writing process is so personal that some of the things I've suggested probably don't or won't work for others. But I'm fascinated by the writing process, and I'm always looking for more tricks to stuff up my sleeve. What are yours?