Wednesday, October 30, 2013
Gladwellian Pop versus Academic Scholarship (or, who is the David and who the Goliath?)
The internet has been bubbling with fascinating debates about the value and merits of Gladwell’s latest book David and Goliath (as a side, I have title envy – one of my subtitles in Chapter 9 of Talent Wants to Be Free is David and Goliath in a Competitive World and in presentations about my whistleblowing scholarship I have a slide titled David v. Goliath. So before the Gladwell book came out I was thinking about using that title for a next project.).
There are different heated strands in the debates to be had about the new Gladwell book, some of them about the conservative tilt in telling heroic stories of overcoming poverty against all odds and reframing of all social challenges as an individual’s opportunity to excel. The Guardian has an awesome parody of
the book that gives you a taste of how absurd and irritating such a zealous message, about overcoming adversity on your own, can get.
But I wanted to raise here a different aspect of the debate which possibly relates to our navel gazing conversations about our role as scholars and researchers. My stance is that there is important and wide room for both serious academic and pop non-fiction, as long as we can tell the difference. Psychologist Dan Gilbert who does both the serious and the pop tweeted yesterday, “Gladwell-hating scientists are like pop-hating classical snobs. Lighten up: it’s just for dancing! MG is the best ambassador we ever had.” There is a lot of benefit from freakonomics style books getting a broad lay audience interested in research and scholarly ideas. The danger lies in not being able to tell the difference, which might be what some commentators are worried about.
I think though many of the haters, to use Gilbert’s phrase, are more along the lines of mainstream haters, the way we commonly use the term - they get a kick out of snobbery or they are simply jealous of Gladwellian popularity. What do you think?
Tuesday, October 29, 2013
Co-Op Book Club on "Talent Wants to Be Free"
Just wanted to send along word that Deven Desai is organizing a book club over at Concurring Opinions for "Talent Wants to Be Free," hot off the presses from Perma-Prawf Orly Lobel. The club will run from November 11 through 15 -- you can find the line-up and further details here. You can order the book through our friends at Amazon here, or consult your local bookstore. Get it, read it, and club along with us in November!
Call for Papers: 5th Annual Religious Legal Theory Conference
This year, the Religious Legal Theory conference is being hosted by John Witte and the (wonderful) Center for the Study of Law and Religion at Emory. The theme is "A Global Conversation: Exploring Interfaith and International Models for the Interaction of Religion and State," and it's being held on Feb. 24 & 25, 2014. More info is available here. Here's a bit from the conference description:
Law and religion share an underlying structure built on commandments and corresponding commitments. They also share a space in the formal regulation of a person’s daily life. Oftentimes they attempt to legislate in the same specific areas, and oftentimes they come to different
final conclusions, or to similar conclusions, but for very different reasons. It is often said that law gives religion its structure, and religion gives law its spirit; law encourages devotion to order and
organization, while religion inspires adherence to both ritual and justice. Law and religion influence each other in many different ways, but at some level they must establish formal
rules for their interactions. This conference aims to explore how law, embodied in the state, manages and frames its relationship with religion, and how religions internally manage and frame their relationships with the state.
Monday, October 28, 2013
Burger & Nixon chatting about pornography, busing, and aging congressmen
A friend sent me a link to the tape of a January 1973 phone conversation between President Nixon and Chief Justice Burger. So far as I can tell, Nixon and was simply returning Burger's "Happy New Year!" call. They talk for a bit about the Court's then-pending pornography case (Miller, I assume?) and Nixon also asks if there are any other big cases brewing. He asks about busing, but not -- interestingly! -- about another case decided in January of 1973 that was a pretty big deal.
In the course of an exchange about aging justices and members of Congress, the Chief Justice notes that the "young" one who had recently joined the Court was "a real star."
Sunday, October 27, 2013
Baseball rules, again
One year after benefiting from a bizarre and controversial (although I believe correct) Infield Fly call in the NL WIld Card, the St. Louis Cardinals won Game 3 of the World Series on an obstruction call on the Red Sox third baseman. Although early reaction (at least outside the Red Sox clubhouse) seems to approve of the call, this one will remain a point of contention, both because it occurred in the World Series and because it allowed the game-winning run to score (officially, it was scored an error on the third baseman who obstructed).
Rule 2.00 of the Official Baseball Rules defines "Obstruction" as "act of a fielder who, while not in possession of the ball and not in the act of fielding the ball, impedes the progress of any runner." A Comment to the rule provides that a fielder can occupy space when "in the act of fielding a ball," but once he has attempted to field a ball and missed, he can no longer be in the act. Thus, if a player dives at a ball and continues to lie on the ground after it is passed him and delays the runner's progress, "he very likely has obstructed the runner." The rule has no intent requirement; impeding the runner, even unintentionally, constitutes obstruction. Under R. 7.06(b), the umpire can "impose such penalties, if any, as in his judgment will nullify the act of obstruction;" typically, that is awarding base the player would have been entitled to without the obstruction, in this case, home.
And here is the umpires' post-game press conference, which can best be described as an opinion issued orally from the bench, explaining the court's judgment.
A couple of themes emerge that, I think, support the call. First, intent does not matter, only the result. Even if (as here) it is almost unfair because the play happened too quickly for the fielder to do anything to get out of the way. Second, while the internet is talking about the Sox third baseman's legs going up in the air, the umpires insisted that it was not the legs, but the fielder's body that created the obstruction. Third, it did not matter that the runner was inside the foul line when he tripped over the fielder (one ump said he was right on the chalk, the video suggests he was inside the line), a point the Red Sox players kept repeating in interviews; a runner can "make his own baseline" by picking the most direct path to the next base.
As expected, some players (Sox starter Jake Peavy was one) complained about the game ending on the umpire's call and the umpire "deciding" the game, a reflection of what Mitch Berman has called "temporal variance" in enforcement of sports rules. That argument seems especially incoherent in this context. After all, the Cardinals could just as easily argue that the play was important precisely because the Cardinals had a chance to score the game-winning run and the Sox were preventing him from doing so in a way not allowed under the rules.
Anyway, obstruction now will be the word of the rest of this Series.
Thursday, October 24, 2013
Wheat, Chaff, and Law Reviews
I really thought I could stay out of this Liptak-law-review discussion. I agree that Liptak's piece, with due respect to him, was not great. But there is always a risk that criticizing a piece leads to an over-defense of the current system of law reviews and the scholarship that appears in them. Preserving the baby doesn't mean we need to keep the bathwater, necessarily. There is a lot of bathwater in law reviews!
In any event, what moves me finally to write is Dan Solove's post in (partial?) defense of law reviews, and especially his responses to commenters. Dan writes in one comment:
The issue is . . . whether the peer review system is worth the time and effort to implement in these days where there isn’t a scarcity of publishing opportunities.
Quite frankly, I’d rather spend my time reading pieces I know are good and working on my own scholarship than doing a lot of peer reviewing. I can tell rather quickly if a piece is going to be any good, and I can quickly move on if it isn’t. And if I don’t know whether a piece outside my field is any good, I can ask professors in that field whom I trust or see what pieces they recommend on Twitter and in blogs, etc. . . . Life is short, and I’d rather not spend my time this way, and I bet many law professors think the same.
A commenter writes to chide him for this: "Peer review in other fields is considered one of the things that responsible academics do. Annoying and boring perhaps, but it helps separate the wheat from the chaff, and multiplied over all the people who have to do their own personal peer review every time they are looking for an article saves net time." Dan responds:
I think you’re missing my point. Peer review would matter if there were a scarcity of publishing opportunities. But there isn’t. So why bother putting so much time into front end review when there isn’t scarcity anymore and anyone can publish? Why not devote more time to other things?
The argument that responsible academics just do peer review doesn’t really answer my point about why pre-publication evaluation is important and why post-publication evaluation won’t be sufficient.
People can readily find the wheat from the chaff by looking at commentary on already-published works. Basically, being published just doesn’t mean much anymore, and I being published never was a particularly precise proxy for being good. It has been a proxy better than random, for sure, but not a precise one, and not one I’d rely heavily upon — even with peer review.
I think that most debates about peer review seem to be stuck in a bygone mentality where publishing opportunities were scarce. We’re living in a very different world now.
I agree with Dan that chaff is inevitable in scholarship and sorting is always necessary. I also agree that the lack of scarcity and the availability of venues like SSRN raises interesting questions. But I disagree with much else here. In particular, let me offer two comments.
First, I don't think the inevitability of chaff tells us enough about whether the current system is problematic or not. In particular, we might consider whether the current system overproduces chaff, and what systemic consequences that might have. I can think of several possible negative consequences. It raises the search costs, because of the time and effort involved in finding the few needles in an ever larger haystack. It's true that experts like Dan can do this efficiently, but not costlessly. Meanwhile, the law is full of generalists, especially in the judicial ranks, and the search costs for them have grown. It also increases the potential error costs: the possibility that some reader will give undue credence to a poor or erroneous piece. Even given that there is always lots of chaff and some wheat, we might still have reasons to want to avoid having too much junk out there.
More interestingly, perhaps, the abundance of poorly policed publication opportunities may create or support bad incentives for law professors and the legal academy. I don't disdain theoretical or interdisciplinary work, but neither do I disdain straight doctrinal work. The plethora of publishing opportunities and the poor pre-publication gatekeeping may encourage more professors to do more "ambitious" and less doctrinal work, to focus on articles over treatises or PLI pieces or other doctrinal work. Moreover, because publication is treated as a core part of the job of full-time faculty, and standards of pre-publication judgment (not to mention tenure and promotion standards) are weak, it may lead to or at least enable not just an overproduction of non-doctrinal work, but an oversupply of full-time law faculty altogether, as opposed to adjuncts and other teachers with a stronger ongoing connection to particular practice areas. Perhaps if there were stronger pre-publication standards and a concomitant decrease in the number of seriously regarded publication slots, we would have a smaller, stronger professorial corps, or a more efficient distribution of resources in law schools, both between doctrinal and non-doctrinal professors and between full-time and part-time faculty.
In short, lack of scarcity is not everything. There are still independent reasons to want to separate the wheat from the chaff earlier in the process, and to encourage more faculty to work on more narrow and doctrinal pieces rather than take a flyer on more high-flying pieces (on the view that the piece will surely be published somewhere, and might just be published somewhere great).
I also think Dan shrugs off the point about peer review and related academic work too casually. For the reasons I've offered (and other reasons too, I'm sure)--e.g., the risk of overproduction of chaff and the associated risks of general readers overrelying on poor work--I think there are reasons "why pre-publication evaluation is important and why post-publication evaluation won’t be sufficient." And, both for practical reasons and more abstract, virtue-centered or vocational reasons, I think the commenter is right that services like peer review are a fundamental part of the academic's responsibilities and should not be dismissed as unnecessarily burdensome. Part of the academic's job is to make sure not just that her own work is sound, but that the general body of scholarship in her discipline is sound: that the well is not poisoned or diluted, that some level of minimal disciplinary standards are maintained and enforced across the board, and so on. She should also not want her colleagues, especially junior ones, to spend an undue amount of time on work that need not or ought not be done at all; she shouldn't want her junior colleagues to overproduce poor work, secure in the knowledge that someone will take it, when that scholar could be encouraged at an earlier stage to abandon a poor or unnecessary project and use her time and talents more usefully. I should add that I see no reason to doubt that Dan takes on his full share of these burdens, no matter how wearisome he may find it. But whether it's wearisome or not, it strikes me as serving practical purposes, as ultimately doing a kindness both to one's colleagues and to the overall body of scholarship, and as a meaningful part of the package of rights and responsibilities that make up the scholar's vocation.
JOTWELL: Epstein on Enns and Wohlfarth on swing justicesThe new essay for JOTWELL's Courtslaw comes from Lee Epstein (USC), reviewing Patrick K. Enns and Patrick Wohlfarth's The Swing Justice (forthcoming in Journal of Politics), which takes a new look at the concept of swing justices.
Wednesday, October 23, 2013
Law Review Publication Agreements
It might be useful for folks to have access to law reviews' publication agreements, whether to help with negotiations, compare copyright provisions, or whatever. I've begun a spreadsheet with links to such agreements that are available on the web. If you are aware of other such links, please add them in the comments to this post or email me directly, slawsky *at* law *dot* uci *dot* edu, and I will add them to the spreadsheet.
If this is duplicative of another such effort, please let me know, and I will (gleefully) ditch my spreadsheet and add a link to the other resource.
I am interested in links to any law review publication agreements, whether main journal, secondary journal, peer-reviewed, or student reviewed.
The spreadsheet so far is here:
Update: I included a link in the spreadsheet to the Miami law wiki page on Copyright Experiences. This is a very helpful resource that includes links to information about the copyright policies of a large number of law journals.Update 2: I have now gone through the Miami law wiki and added to the spreadsheet links to the full text of journal agreements presented on the Wiki (as opposed to descriptions of copyright policies). I have indicated which links these are by marking a column in the spreadsheet "Miami Wiki." I will now attempt to augment this list as well as replace, where possible, the Miami Wiki links with links to the publication's web page. Three cheers for the Miami Wiki!
Monday, October 21, 2013
Courts and Law Reviews
To pile-on the posts by Jack and Matt: Regardless of whether courts (particularly SCOTUS) are citing to law review articles, they are listening to and relying on the arguments of legal scholars. While these arguments are coming to them in amicus briefs rather than articles, that is a matter of format rather than substance. And many an amicus brief begins as, or eventually becomes, a law review article.
Take this month as an example. In argument in Madigan v. Levin, the justices asked several questions about an amicus brief authored by Steve Vladeck and signed by a number of Fed Courts scholars, including me. Steve made those same arguments in an article in Green Bag last winter. And in Atlantic Marine Construction Co. v. District Court, the Court expressly ordered the parties to discuss an amicus brief by Duke's Stephen Sachs and asked numerous questions about the brief during argument. Depending on how the Court decides Atlantic Marine, perhaps Stephen will turn those arguments into an article.
Conference Announcement of the American Society of Comparative Law Younger Comparativists Committee
The Younger Comparativists Committee of the American Society of Comparative Law is pleased to invite submissions for its third annual conference, to be held on April 4-5, 2014, at Lewis & Clark Law School in Portland, Oregon. The purpose of the conference is to highlight, develop, and promote the scholarship of new and younger comparativists.
Conference Subject-Matter and Eligibility
Submissions will be accepted on any subject in public or private comparative law from scholars who have been engaged as law teachers, lecturers, fellows, or in another academic capacity for no more than ten years as of June 30, 2014. We will also accept submissions from graduate students enrolled in master’s or doctoral programs.
To submit an entry, scholars should email an attachment in Microsoft Word or PDF containing an abstract of no more than 750 words no later than November 1, 2013, to the following address: email@example.com. Abstracts should reflect original research that will not yet have been published, though may have been accepted for publication, by the time of the conference. Abstracts should also include the author’s name, title of the paper, institutional affiliation, contact information, as well as the author’s certification that she/he qualifies as a younger scholar. Graduate students should identify themselves as such.
Scholars may make only one submission. Both individual and co-authored submissions will be accepted. For co-authored submissions, both authors must qualify as eligible younger comparativists. The conference’s Program Committee will assign individual and co-authored submissions to thematic panels according to subject area. Proposals for fully formed panels will also be accepted.
Authors of the submissions selected for the conference will be notified no later than December 20, 2013. There is no cost to register for the conference, but participants are responsible for securing their own funding for travel, lodging and other incidental expenses. A limited number of travel stipends may be awarded to those who demonstrate financial need. If you would like to be considered fora travel stipend, please make that request in your submission.
Graduate Student Prize
A prize will be awarded for the best paper submitted by a graduate student. To be considered for the award, in addition to submitting an abstract by the above deadline, graduate students whose abstracts are accepted for the conference must also submit their papers in their final form byJanuary 31, 2014, to firstname.lastname@example.org with the following subject line: “Submission forGraduate Student Prize.” Papers received after January 31, 2014, will not be considered for the award.
Final papers by faculty members—as well as by graduate students who do not wish to be considered for the Graduate Student Prize—will be due by email to email@example.com no later than March 1, 2014.
Acknowledgements and QuestionsThe Younger Comparativists Committee gratefully acknowledges the support of Lewis & Clark Law School. Please direct all inquiries to Professor Ozan Varol, Chair of the Program Committee, by email at firstname.lastname@example.org or telephone at 503.768.6805.
The Program Committee:
Ozan Varol (Lewis & Clark) (Chair)
Afra Afsharipour (UC Davis)
Nadia Ahmad (Denver)
Richard Albert (Boston College) (YCC Chair)
Antonia Baraggia (Milan)
Lindsey Carson (Toronto)
Claudia Haupt (Columbia)
John Hursh (McGill)
Rajeev Kadambi (Brown)
Joshua Karton (Queen's)
David Landau (Florida State)
Manoj Mate (Whittier)
Salil Mehra (Temple) (YCC Board Member)
Frances Nguyen (Lewis & Clark)
Rene Reich-Graefe (Western New England)
Fritz Siregar (New South Wales)
Ioanna Tourkochoriti (Harvard)
Tim Webster (Case Western)
Getting Law Review Fans Out of the Closet: Liptak on Jacobs and Waxman
In a column today, Adam Liptak discusses some familiar criticisms of law reviews. I believe law review articles are often high quality, useful and influential, as is reflected by my recent series of interviews with authors of articles cited in the U.S. Supreme Court. Liptak quotes Second Circuit Judge Dennis Jacobs as saying in 2007 "I haven't opened up a law review in years. No one speaks of them. No one relies on them." Former SG Seth Waxman is quoted as saying in 2002 that "Only a true naif would blunder to mention one at oral argument." Do not believe either of them for a second; the record suggests that these cynics are closet idealists who regularly enjoy a good law review article.
As for Judge Jacobs, a Westlaw search shows he has cited law reviews dozens of times in his years on the bench. In 2005, he cited a law review article for a point of sentencing law, and then as an "accord," cited a Stevens and Souter dissent. See Guzman v. United States, 404 F.3d 139, 143 (2d Cir. 2005). That is, Judge Jacobs cites the views of two U.S. Supreme Court justices to buttress the conclusions of a law review article. The next year, in At Home Corp. v. Cox Communications, 446 F.3d 403, 409-10 (2d Cir. 2006), he string-cited three law review articles to explain the realities of leveraged buyouts.
In truth, Judge Jacobs obviously--obviously--loves law review articles. How can we tell? He likes to cite articles raising interesting legal wrinkles, but which were not raised or precisely presented by the facts. See Briscoe v. City of New Haven, 654 F.3d 200, 208 n.13 (2d Cir. 2011) (citing article offering novel reading of a recent Title VII case); Carvajal v. Artus, 633 F.3d 95, 109 n.10 (2d Cir. 2011) (citing article raising novel reading of full faith and credit clause); Pescatore v. Pan Am, 97 F.3d 1, 13 (2d Cir. 1996) (citing articles dealing with "decades-old controversy over choice of law doctrine"). He also likes empirical work. See, e.g., United States v. Whitten, 610 F.3d 168, 201 n.25 (2d Cir. 2010).
Judge Jacobs has cited articles written by students, judges and scholars, century-old chestnuts and brand new work, he cites celebrities like Akhil Amar and William Stuntz writing in the Harvard Law Review and the Yale Law Journal, and lesser-known scholars writing in less fancy venues. In short, the record shows that he relies on law review articles when he concludes their research and analysis makes them worth relying on, which is exactly what judges should do.
As for Seth Waxman, of course it would be extremely rare for an advocate to mention an article in oral argument, just as it would generally be silly to waste much time emphasizing the fact that a unanimous state supreme court or en banc circuit court agreed with your position. He is quite right if his point is that by the time the case is in the Supreme Court, naked appeals to authority (other than binding Supreme Court decisions) are unlikely to help. And yet, a search of the Supreme Court brief database on Westlaw shows that Waxman authored 149 briefs citing law review articles, and 423 briefs in total. So more than a third of the time, he concluded that citation of a law review article would be more persuasive than simply incorporating the article's cases and argument in the brief (which would be fair game--briefs and opinions need not be original). His choice to rely on articles is the clearest possible vote of confidence in the utility of scholarly research. On behalf of the legal academy, I say to Mr. Waxman: "You're welcome."
Et Tu, Adam? The Lazy Critiques of Law Reviews Continue
When it comes to media stories on legal education, bashing on law reviews is evergreen content. Why, it was just two years ago that David Segal was offering his own attack on legal scholarship, referring to law review articles as "headscratchers" and quoting Chief Justice Roberts on Kant & Bulgaria. (And this was my response then, in case you missed it!) So here comes Adam Liptak with his version of this tired old story, reciting the quotes & studies that have been trotted out before. I find these critiques to be based on a blend of ignorance, arrogance, and incoherence. Ignorance because they don't really seem to know what's going on in actual law reviews. The CJ's quote is a good example -- it's a caricature of a cliche about law reviews, rather than an actual observation about them. Arrogance because there is always outrage about these "amateurs" and "incompetents" getting to touch the golden prose of scholars. Sure, some journals and some editors are worse than others, but on the whole students know the Bluebook and are respectful yet challenging of authors. I have gotten terrific editing from law reviews, including a set of edits at a specialty journal that I just turned around this past month. Would some peer review be nice? Sure, but (1) there are peer review journals and (2) meaningful peer review comes in the literature to follow. When a huge number of professors do their research on SSRN, which offers no review of any kind (other than download counts), the need for peer review to separate wheat from chaff is overblown. Finally, incoherence -- because the critiques don't fit together. Law review articles are incredibly esoteric and out of touch? Then why are they being chosen by editors who almost all go on to be lawyers themselves? Law blogs are better than law reviews? I don't know where to begin with that one. There are a lot of different tropes and agendas meandering around in these critiques, and they just don't hang together. The critique of internally-placed articles based on Albert Yoon's research does raise real concerns. But this is a much more subtle point than the rest of Liptak's post.
I have a lot more to say about this, some of which I said in "Law Students and Legal Scholarship" over at the Journal of Law. But law reviews are a resource for which law professors should be grateful. I hope more law profs come out of the woodwork to defend these institutions of research and learning, or they just might begin to disappear.
Tell me what I need to know
How would that be as an opening question in a meat market or faculty interview? Certainly out of the ordinary. But in theory it gets to the heart of things very quickly--it tests how well a candidate thinks on his feet, while also giving her control over the conversation.
Would you want to deal with a question like that as a candidate? Would you want to ask that question as a committee member/interviewer?
BTW: The idea for this question came from a colleague with extensive non-academic, real-world interviewing/hiring experience.
Sunday, October 20, 2013
Law School Hiring, 2013-2014, Thread Two
We invite those on the market to leave comments on this thread regarding whether they have received:
(a) a callback from a law school and/or accepted it; or
(b) an offer from a law school and/or accepted it; feel free to also leave details about the offer, including teaching load, research leave, etc. A school listed as "offer accepted" may have made more than one offer and may still have some slots open.
Five miscellaneous things:
1. If you don't want your contact information displayed, enter email@example.com or something like that as an email address.
2. There is a separate thread, "A Clearinghouse for Questions," for general questions or comments about the teaching market. Please do not use the thread below for general questions or comments. (Such comments will be deleted, not out of hostility or in a judgy way, just to keep this thread focused.)
4. The year's first hiring thread is here. Comments to that thread are now closed.
5. In each of the last five years, someone who is on the market has volunteered to aggregate the information on a spreadsheet. If you would like to volunteer, please contact me directly at slawsky *at* law *dot* uci *dot* edu, and I will get you set up.
Update: We once again have an aggregator! Below is the spreadsheet, which you can view and download here. [Update: link fixed 1/2/14.]
All information should come in through the comments. Our aggregator will use a spreadsheet to aggregate the information. Only the aggregator will be able to edit the spreadsheet, but when the aggregator edits the spreadsheet, those changes will be reflected in the embedded, downloadable version below.
Submit any questions/comments/corrections to aalsaggregator (at) gmail (dot) com.
Wednesday, October 16, 2013
Annals of Advertising -- Strange Bedfellows edition
Law schools and the shutdown
Courtesy of Andrew Ferguson (UDC) is this story (registration required) on the effect of the shutdown on law schools, faculty, and students, including at UDC, the only public law school in DC. The story indicates that the school's clinics have been deemed essential. But the faculty has been talking about whether to continue teaching if/when the money runs out--are there ethical, legal, or other concerns by teaching during the shutdown?
Probably a moot point, as it appears this all will end with a whimper tonight (just in time for everyone to gather in DC for the meat market). But an thought game.
Tributes to Larry Ribstein
Starting tomorrow, the University of Illinois College of Law is putting on a symposium in memory of the late Larry Ribstein, the Mildred Van Voorhis Jones Chair, Associate Dean for Research, and Co-Director of the Illinois Business Law and Policy Program. You can find the conference announcement here, and Christine Hurt's invitation to attend here.
Grant Hayden and I have just placed an essay on Ribstein's scholarly legacy with the Virginia Law and Business Review. We argue that progressive corporate law scholars can gain important insights from Ribstein's work, particularly in his criticisms of the "nexus of contracts" theory and capitalistic cronyism. Our essay can be found here on SSRN.
Olympic free expression at 45
Today (Wednesday, October 16) is the 45th anniversary of the Tommie Smith/John Carlos Black Power salute on the medal stand following the 200 meters at the 1968 Olympics in Mexico City. The third person on the stand is Australian Peter Norman, the silver medalist, who supported Smith and Carlos by giving them his gloves and standing at attention while wearing a badge of the Olympic Project for Human Rights. And while Smith and Carlos are generally regarded as heroes who took a stand, 45 years ago they were vilified and expelled from the games.
Of course, gay rights have become an issue for the 2014 Winter Olymics in Sochi, Russia, given recent legislation prohibiting gay-rights "propaganda" and public displays of homosexuality or support for homosexuality. And the International Olympic Committee has repeatedly and publicly reminded athletes of IOC regulations requiring respect for the home country and its laws--in other words, athlete protests of these laws will not be tolerated.
In other words, the "Olympic Ideal" of free expression has not evolved much in 45 years.
Monday, October 14, 2013
Clarifying Obscurity: Minimalism, Novelty, and Polite Conversation Change
After my entry last week on doctrinal obscurity, Paul posted a pithy response asking probing questions and raising important points. Right off the bat, I'd like to thank Paul for his generous and thoughtful engagement with my musings. Thanks! It's really fun to be able to hang around this month on Prawfs and participate in the community dialog. In today's post then, I'll try respond to Paul and clarify my claims about obscurity and its relationship to the rich scholarship on minimalism.
Before I jump into the substance, let me first elaborate the context for my essay and then make a quick confession.
The relevant context here is Justice Scalia's dissent in Windsor. It bothered me. His accusation that the majority was engaged in "non-specific handwaving" had force but somehow seemed wrong to me. So I decided to map out the doctrinal origins of Justice Kennedy's majority opinion. Based on this exercise, I found that Windsor "fit" with the relevant prior doctrine. To continue using Dworkin's terms, I regarded Windsor as next chapter in our constitutional chain novel about due process and equal protection that had integrity. Yet Kennedy did not use an accepted SDP or EP test to reach his conclusion. To resolve this tension and rebutt Scalia, I hatched upon the virtue of obscurity.
And now the confession. Before Paul's post, I had not read Cass Sunstein on minimalism. Mea culpa. I entered law school after "Leaving Things Undecided" appeared in the Harvard Law Review and only entered the academy as a professor three years ago. Though I've read a lot of Cass since then, it seems there is a whole lot more Cass out there. That guy is an animal! In any event, Paul inspired me to book up and I am grateful for the experience of working through this obviously seminal article. Without question, some of my intuitions about obscurity have been better developed in prior work on minimalism. Yet I don't think the overlap is complete and believe I'm making some different claims. Let's look at them now.
Paul's first question essentially asked for a definition of obscurity. Upon reflection, I think I really understand obscurity to cover three related concepts -- minimalism, novelty, and polite conversation change -- that all answer the charge of "non-specific handwaving."
Obviously, the first idea here intersects directly with Sunstein. After booking up, I very much appreciate his understanding of minimalist judges as those "who seek to avoid broad rules and abstract theories" and instead focus on what is necessary to decide particular cases. Though minimalists "emphatically believe in reason giving,  they do not like to work deductively; they do not see outcomes as reflecting rules or theories laid down in advance." This aptly anticipates Kennedy in Windsor, just as it accurately described Kennedy in Romer. Though his opinion was both "shallow" and "narrow," it was hardly without reasons or precedent. Windsor was obscure in that it was under-theorized, but, as Sunstein tells us, that is not always a bad thing.
The second dimension I see in obscurity is novelty. A legal concept may strike audiences as obscure merely because they have never heard of the concept before. In my essay, I suggest that Skinner v. Oklahoma's introduction into Supreme Court discourse of the notion of "strict scutiny" in legislative classifications likely came off obscure in 1942 precisely because it was so new. Although we now have strong analytic associations with the phrase, Justice Douglas' very decision to turn to equal protection was unusual; his nascent "strict scrutiny" test had very little content. Obscurity is thus a relative concept. What is obscure now may be plain as day later. I thus suggest that the anti-animus and "equal dignity" principles advanced by Kennedy may be regarded by future generations as the startlingly obvious doctrinal bottom-lines of Windsor.
The final dimension to my notion of obscurity is what I call "polite conversation change." Unlike the other two dimensions which we might view as "outward looking" -- having to do with how the Court engages with other constitutional actors and future generations -- this dimension is essentially "inward looking." Polite conversation change signifies a rhetorical tactic that helps move the current conversation in the Court in a productive direction. This is both a means of "smoothing over differences" (as Paul suggested) and a way to keep the credibility and dignity of the Court intact in face of embarassing precedent.
Once again, the context here is Scalia's dissent. Like in Romer and Lawrence, Scalia's Windsor dissent essentially argues for the right of the majority to be anti-gay. His position has a logic -- though its grounding in precedent has eroded after Romer and Lawrence. Should Kennedy have directly engaged this logic? In the essay, I likened this situation to talking to a homophobic relative over a series of family dinners. Key to this analogy is imagining that the rest of your family is listening and that maybe they are not all together comfortable with LGBTQ issues. I suggested that direct engagement is not always the best course in such situations. Be polite always. But try to change the direction of the conversation.
This final kind of non-confontational obscurity saves face and bides time. In Leaving Things Undecided, Sunstein clearly wished Kennedy had given more reasons in Romer and explicitly dealt with Bowers (Sunstein called the Romer opinion "subminimalist"). Of course, I agree with Sunstein that Kennedy could have distinguished Bowers as a SDP case since Romer was decided on EP grounds. At the same time, such a distinction would have been deeply unsatisfying as a rhetorical matter. Bowers legitimized some degree of state-sanctioned homophobia. There was no persuasive way around that. Bowers was like a big zit on the face of Court's gay rights jurisprudence. So I remain sympathetic with Kennedy's decision to politely ignore it. His tactic of obscurity made more sense at the time than I think Sunstein admitted.
Having laid these three dimensions out, let me wrap up by touching upon Paul's questions about how to discern deliberate from uninentional obscurity. My short answer is that it is hard to reliably identify deliberatly virtuous obscurity. (I suspect "I know it when I see it" would be an even less satisfying answer!).
Yet the "virtuous obscurity" label certainly seems to apply to the gay-rights trilogy. For me, it's hard not to see the movement from Romer to Lawrence to Windsor as anything other than a long-term project embraced by Kennedy. His minimalism in these cases nonetheless introduced us to novel lines of constitutional inquiry that may prove useful to future generations. And Kennedy executed his project in a way that did not entirely embarass the Court or any of its members. That's no small feat -- especially considering how dramatically public views on gay rights have moved in the decades since Bowers.
Could the idea of obscurity apply outside gay rights? I suspect so but have yet to think it all the way through. Certainly, Skinner and Moreno provide possible other data points to interrogate the idea. My essay touches upon these two cases, but I know further inquiry is required if I wanted to make a Truly Strong Claim. At this juncture, I'm not entirely sure that I do. In any event, thanks again to Paul for his post and for moving me to think harder about these questions.
In praise of student-assembled reading lists for law school seminars
I am using this space to promote and praise a law school teaching technique that I keep using to good effect in my "hot topic" seminars. Starting this week, the students in my Marijuana Law, Policy and Reform seminar are "taking over" the class and classroom by selecting topics of special interest to them and assembling readings to provide the basis for our classroom discussions of these topics. I am posting these student-assembled readings over at Marijuana Law, Policy and Reform, and the first set of readings covers tax issues.
I had students assemble readings for a death penalty seminar to great effect a few years ago, and I was moved by the first collection assembled in my marijuana seminar to do this post of praise. I am finding, yet again, that law students are consistently able to find lots of on-line, user-friendly readings on law and policy topics (and, wonderfully, often draw on primary materials other than SCOTUS cases and on secondary materials other than law review articles).Cross-posted at SL&P
On online law reviews
Mark Tushnet shares a story and raises some questions about on-line law review supplements. I have had several great experiences with the format and am a big fan, both for myself and in offering suggestions to my colleagues. Mark raises two questions I wanted to respond to.
First, he wonders if the piece will be cited. It seems to me the answer is "as much as anything else by a high-profile author." Nowadays, people find scholarship on SSRN and Westlaw/Lexis. Most of the on-line supplements (certainly from the top-tier reviews) are published with hard-copy reviews. And authors will distribute their supplement essays through SSRN. So the articles will be seen.Second, he wonders what P&T (and, I might add, although to a lesser extent, appointments) committees will do with these. That answer has a few more moving parts. Given the length limitations at most supplements, such pieces will not alone be enough to satisfy the tenure standard at most law schools. At the same time, the existence of such journals should provide an incentive to scholars to take advantage of them and might give committees an expectation that faculty will do so; more scholarly outlets means more publication opportunities. At many schools, the statutory minimum for tenure is 3 "substantial scholarly works" (whatever that might mean) by the beginning of the sixth year--roughly an article every two years. Perhaps a committee might think reasonable productivity is one big piece and one smaller piece (such as might run in a supplement) in that time?
As for what P&T committees will do, that is going to change quickly as the make-up of those committees changes. The really old guard, especially the mythical "dead wood," may not look kindly on such placements, seeing tham as little more than glorified op-eds. But committees are increasingly populated and influenced by people who begin their academic careers within the past 10-15 years, just as these journals were coming into existence, and who are therefore comfortable with and respectful of what goes into publishing in them.
Sunday, October 13, 2013
The justices talk procedure
If you want to hear SCOTUS talk intelligently about procedure, have a listen to last week's argument in Atalantic Marine Construction Co. v. District Court. The issue in the case is whether, when a party files someplace in violation of a contractual choice-of-forum provision, the issue is properly considered as improper venue under FRCP 12(b)(3)/§1406 or as a request to transfer venue under § 1404. It discussed venue, forum non, improper venue, 12(b)(6), and the interconnections among all of these, in a very intelligent and easy-to-grasp way. And the argument repeatedly discussed a law professor by name--Stephen Sachs of Duke, who wrote an amicus brief arguing for a third way at this question. Leading the way were Justices Ginsburg and Kagan (no surprise) and Alito; on the other hand, Justice Breyer again asked questions that suggest he does not know (or want to know) anything about civil procedure.
Although I expect the Court to have decided the case by the time I reach venue next semester, I may assign the argument as a way to show this stuff fits together.
Friday, October 11, 2013
Thanks to Colin for telling us about his interesting piece on "The Virtue of Obscurity" in Supreme Court opinion writing, with specific reference to (surprise!) Justice Kennedy. We're glad to have him here. I appreciate that it's a short piece, but let me make a couple of critical or questioning remarks about the piece, if only because I would appreciate hearing more of his views on the subject, here or in longer work.
The questions are related and I'm not sure it matters which comes first. But as a preliminary matter, and without wanting to be too cute about it, I would appreciate getting a clearer definition of what Colin means by "obscure" or "obscurity." He seems to define it mostly as by negative implication, as the absence of qualities such as clarity and specificity. As a matter of everyday language, or even casual professional talk about judicial opinions, I have no problem understanding the term, and absolutely no problem locating it somewhere in the vicinity of Justice Kennedy. In the case of an article that gets some charge out of the counter-intuitive move of praising obscurity, though, I would like to know the author's own definition of the term, and maybe something on how we can tell deliberate obscurity from something else.
Second, and this admittedly is what struck me first, I'm surprised not to see reference to Cass Sunstein's work on judicial minimalism. Again, it's a short piece, and I appreciate that and am glad Colin wrote it, and discussed it here on Prawfs. But I think Sunstein's work on minimalism would be very useful to this project--indeed, his primary work on minimalism focuses at length on many of the same cases--and might add some clarity to the definitional question I asked above. Although in his writing on minimalism Sunstein generally favors opinions that are both narrow and shallow, he points out that these categories are capable of various combinations, and that we can (favorably) imagine some opinions that are "shallow and wide," or "deep and narrow." Others have written even more favorably about those possible categories. Donald Dripps has argued that in criminal procedure, broad but shallow opinions are often highly desirable. In a piece written back when my hair was a different color, I argued in favor of the uses of what Sunstein would, I think, call deep but narrow opinions. Both of these kinds of cases, it seems to me, can be thought of as involving different kinds of judicial "obscurity" in service of different kinds of needs. In short, I think it's probably necessary to say more about the different forms that judicial "obscurity" can take, and the occasions for which they are more or less well-suited.
I suppose there's a third point that relates to the questions I asked at the end of my first point. Sometimes obscurity is necessary, but not for the public. Sometimes it's necessary to cobble together a majority, or a large majority in those cases in which something more than a plurality or bare majority is thought to be important. So before praising Justice Kennedy (or anyone else) for obscurity, we would have to consider whether that obscurity was part of a longer-term project or a concern for the public, or whether it was just a means of smoothing over differences on the Court itself.
Again, notwithstanding or perhaps because of these questions, thanks to Colin for posting on his article.
Thursday, October 10, 2013
The Virtue of Obscurity
When discussing writing with my 1L students, I inevitably advise them to make their arguments clear and succinct. Yet I've just posted a short essay to SSRN that praises the virtue of obscurity in Supreme Court opinion writing. Should this contradiction make my students mad?
I hope not. My argument for obscurity -- part of a Villa Nova Law Review symposium on United States v. Windsor -- focuses on situations, like that in DOMA, where the Court confronts ugly social realities that have become codified in unpleasant laws or distasteful precedents. I liken these situations to speaking with a homophobic relative at a series of family dinners. They are inherently awkward and sometimes less-than-direct words are the best way to move such conversations in a productive direction. Hence obscurity becomes long-term rhetorical strategy. In my view, Justice Kennedy’s "non-specific handwaving" in Windsor (to quote Justice Scalia) is a justified use of this strategy.
Could similar concerns ever warrant obscurity in student writing? I haven't thought of a good example but perhaps Prawfs Peeps can come up with one. Or perhaps you disagree that obscurity could ever be virtuous -- in Windsor or elsewhere. Unclear comments welcome.
Rankings versus Market Share
Brian Leiter has shared the news that U.S. News law rankings will to continue to collect information on school expenditures. That, combined with the student-teacher ratio, means that U.S. News will continue to push schools smaller to improve their rankings. When you factor in that reducing class size also improves LSAT scores and GPAs, likely improves bar passage rates, and makes it easier to place a higher percentage of grads in jobs, it's really a no-brainer that schools will want to keep getting smaller if they want to improve their ranking.
Of course, going smaller also means lost tuition. So if LSAT takers continue to go down (hypothetically?), there will be different strategies at different schools -- some going smaller (if they can afford it) to maintain traditional entry requirements, and some going bigger or maintaining size to keep tuition dollars stable. Two recent articles -- one on D.C. and one on New York -- provided in-depth data about how schools are managing their enrollments based on these competing forces.
I wanted to throw out one additional factor -- market share. Here's the theory: let's say you are a higher-ranked school in a market with a number of lower-ranked competitors. You can go smaller and keep your numbers up, or you can go big and take a ratings hit. However, when you go bigger, that means there are fewer students for your competitors -- and they are already scrambling for students. So their rankings will suffer too. You may go down 5 or 10 slots, but they will go down 20 or 30 slots. And if the schools on down the chain respond in kind, maybe one of them might even go out of business. As a colleague, you may feel bad about that, but as a competitor, it makes your life easier. You can grab a bigger and/or better share of the students in your market and worry less about competition.
I think the incentives for staying small and keeping a good student body will keep most schools from pursuing this strategy. But in regions where the competition is fierce, I can see a school at least taking this into consideration. Is this a plausible market strategy? Or should law schools not be thinking about market strategies, particularly if they involve shuttering a competitor?
Wednesday, October 09, 2013
Tips for newly tenured professorsFrom Eric Goldman (Santa Clara). Discuss.
Tuesday, October 08, 2013
Skipping the Post is Not a Big Deal
A couple of words, if I may, on the widespread, if totally ephemeral, criticism of Justice Scalia, occasioned by his statement in this week's New York Magazine interview* that he only takes the Wall Street Journal and the Washington Times, and gave up the Washington Post because it had become too "shrilly liberal." A fairly standard example, with one important exception, can be found here: http://takingnote.blogs.nytimes.com/2013/10/07/scalias-echo-chamber/?_r=0. Those words are: Big deal. Now let me expand slightly.
1) What should really upset us is not that Scalia gave up the Post, but that he reads the Washington Times, which is a transparently lousy newspaper.
2) He already reads the Journal, which, editorial pages aside, is neither especially conservative nor especially different in terms of the background or perspective of its reporters or editors. Perhaps the Justices would do us all a favor by picking a paper at random from the non-coastal United States and reading that every day.
3) The Post has gotten pretty thin in the past few (say, 15) years.
4) Of course the Post is liberal! I doubt shrill is an apt description, or that it's more shrilly liberal now than it was in the past, but obviously it's a liberal paper.
5) I do believe epistemic closure exists and afflicts some more than others. Perhaps it afflicts Scalia greatly. But if a liberal Justice said he or she read only the New York Times, the Washington Post, and the New Yorker, I doubt half as many people would be calling them epistemically shuttered for failing to pick up the Daily Caller (also lousy, incidentally) or the National Review. (Here, in fairness, is a note of difference between the standard-issue criticisms and Lapidos's piece in the Times: at least she calls out the President for purportedly only reading the New York Times.)
6) This all seems very American and parochial. Maybe the more important question is why all the Justices aren't reading Le Monde, Bild, El Pais, the Guardian, and the Times of London.
* I note that I don't especially think that he ought to have given the interview, or that Justice Ginsburg ought to have given the interview that occasioned headlines of its own this weekend.
There are a few of usAnd Dahlia Lithwick (sorry) Emily Bazelon tried to talk to some of us.
JOTWELL: Pfander on Ewald on the Committee of DetailThe latest essay for JOTWELL's Courts Law Section comes from James Pfander (Northwestern), reviewing William Ewald's The Committee of Detail (Constitutional Commentary), which explores the role of the Committee of Detail (and particularly James Wilson) at the Philadelphia Convention in the creation of the Article III judiciary.
Baseball and removal
Baseball player and PED pariah Alex Rodriguez sued Major League Baseball in state court in New York last week, asserting claims for tortious interference with existing contract (his contract with the New York Yankees) and tortious interference with prospective business relationship (because sponsors have dropped or refused to hire him). Today, MLB removed the action to the Southern District of New York.
But the basis for removal was not, as one might expect in a tort suit, diversity. That removal would have been impossible. MLB is an unincorporated association of its 32 teams, which are themselves unincorporated associations and partnerships; each team is a citizen of every state in which a member or partner is a citizen, meaning MLB is a citizen of every such state. MLB thus is a citizen of New York (among other places), as is Rodriguez, meaning complete diversity is lacking. Moreover, because MLB is a citizen of New York, it cannot remove a diversity action under the Forum Defendant Rule.
Instead, removal was based on federal question jurisdiction under the doctrine of complete preemption. MLB argues that Rodriguez's claim, which functionally challenges his suspensiona and the process by which that suspension was imposed, is preempted by § 301 of the Labor Management Relations Act and MLB's agreements with the MLBPA. The LMRA is one of a few federal statutes (ERISA and the National Bank Act are the others) that have "uniquely powerful preemptive force;" the statute provides the only available cause of action in this realm, such that any state law claim is converted into a federal claim arising under the federal statute. Thus, although Rodriguez pled state-law claims, such state claims do not exist. His claims therefore arise under federal law (the LMRA) and are removable as such.Complete preemption is controversial and in many ways makes no sense. Preemption ordinarily is a defense; the preemptive force of federal law defeats the state law claim and warrants its dismissal. But that argument is made in state court. By allowing removal to federal court, the doctrine carves an unexplained exception to the Well-Pleaded Complaint Rule, under which removal can only be based on the claims appearing in the complaint, not on defenses. The response, I suppose, is that this is a unqiue form of preemption, which converts the nature of the cause of action; removal is not based on a defense, but on the actual claim, recast in light of federal law's preemptive force. But the Court has never explained or justified what Justice Scalia has derided as this "federalize-and-remove dance."
It is particularly obvious in this case that the LMRA provides a defense rather than a change to the claim. With the case now in federal court, MLB almost certainly will argue that the civil action should be dismissed because the claims are governed by MLB's Basic Agreement (its CBA) and related agreements respecting drug use and testing, which empower the commissioner with respect to PED use and commit challenges to that power to binding arbitration. In other words, the LMRA and the Basic Agreement are doing double work--providing the jurisdictional hook to put the case in federal court, then providing the merits hook to defeat the claim. This offends my basic belief that rules should be either merits or jurisdictional but never both. In any event, the extra step seems wasteful and unncecessary. It would have been simpler and more efficient for MLB to simply move to dismiss in state court in favor of arbitration.
Monday, October 07, 2013
Law and Society 2014 CrimProf Announcement
For the last five years or so, I've been involved with planning a "shadow" crimprof gathering at the annual Law and Society conference. Carissa Hessick (Utah) has been my partner in crime the last couple years, and the endeavor has gone very well, with this last year's event including over fifteen panels and something like seventy participants or so.
Sadly, Carissa and I are deciding to not play much of an organizer's role this year for the upcoming gathering in Minneapolis. There are a few considerations at play. We've always chafed under the somewhat peculiar participation rules that limited our sense of what number of panelists made optimal sense. But aside from that, we now have to deal with the unwillingness/inability of LSA to coordinate more than four panels for us or for any other group that would like to ensure that we could attend each other's panels without conflict in time and place. We might reconsider in future years, but for now, we figured that we'd let crimprof type people who want to go to LSA in Minneapolis this spring use the comments to this thread as a vehicle for putting together panels.
I should add: while we may return to LSA in the future, we are also considering just having a stand-alone crimprof conference at a law school, probably in May or June also, so that early drafts can be shared and repaired over the summer. (In my own head, it would like something like the ImmProf biennial gathering about which you can read here.) If your law school is interested in hosting this, either this year or in future years, let Carissa and me know. We anticipate that we would keep costs down by requiring participants to pay their hotel, perhaps most meals, and airfare.
In any event, if you're a crimprof and want to go to LSA, please feel free to include an expression of interest and abstract that you'd like to present. Remember that panels need to be packaged within the next week or so (october 15 is this year's early deadline).
A Grenade in the Prison Nursery
James Dwyer at William and Mary Law has an explosively interesting and sharp draft (forthcoming in Utah LR) up on SSRN called Jailing Black Babies. If you have a passing interest in the intersection of family life and criminal justice, race and law, or just how to do a law review article with panache and insight, then you should read it (h/t to Berman at SLP). I can't endorse the underlying merits because I don't know the studies that Dwyer skewers along the way, but the piece is, if true, a wonderful parade of argument in law and policy, and, in its own way, quite courageous. Kudos.
One minor quibble. At times, Dwyer takes to task the advocates for incarcerated moms for "wishful thinking" re: the putative benefits of prison nurseries. I don't have reason to doubt that there's little empirical support for developing prison nurseries now that some studies (as described and critiqued by Dwyer) show little grounds for them. But at least at some earlier point, it seems worrisome if critics insist that policy entrepreneurs provide empirical support for the benefits of a relatively new policy idea. How do we prevent policy ossification if we insist on studies for everything in advance? To be sure, Dwyer has probably convinced me that it was a form of constitutional folly to put kids into prisons with their moms. But if the legal arguments weren't there, and we were considering a strictly policy question, it wouldn't be batshit crazy to think that there might be some benefits to children of incarcerated parents being together with them; it *might* be the kind of thing we might want to see at least some types of (low-security) prisons experiment with. Dwyer's right, however, that there seems be little academic constituency for a child-centered view of these policies and their alternatives. One cannot read Dwyer's draft without feeling deeply concerned with this new policy bandwagon while also saddened by the conflict he spotlights between parental and children's interests.
HLR has more women. Discuss.
The Crimson has a story reporting that since the Harvard Law Review adopted a gender consideration for its discretionary slots, the review has almost doubled the number of female admittees to its membership. See here (reporting that women went from 9 to 17 out of roughly 45 people admitted for this year).
Those six of you who have followed this issue with some interest over the years may remember that both Justice Kagan (in her former decanal role) and Professor Carol Steiker (a former President of HLR herself) opposed adding gender to the list of considerations that would figure into the "discretionary" slots. Their stated concern was that it would cast doubt on the accomplishments of those women (including themselves?) who got onto HLR through the "blind" means (writing competition or grades-inflected scores of writing competition). Of course, this is the same rationale often thrown against affirmative action measures for visible minorities, so one wonders a) do they oppose the use of AA for race/ethnicity or other considerations? and b) if not, what are the distinguishing features are of race/ethnicity versus gender? Is it some kind of critical mass theory to the effect that women have without benefit of affirmative action policies still formed roughly 25% of the law review membership? I confess I'm puzzled by these reactions and not entirely sure what I would do if I were in a decision-making capacity on the HLR. Helping or inspiring people to Lean In during law school doesn't seem nearly so sufficient, though it does seem necessary. Am I wrong?
Anyway, here are some other relevant sources: a story on the HLR internal study a decade ago and some of the more recent coverage on Shatter the Ceiling, a project meant to facilitate female achievement at the Law School.
Cert. denied in Duke lacrosse
SCOTUS this morning denied cert. in Evans v. Durham, the § 1983 action by the three indicted-but-exonerated members of the 2005 Duke men's lacrosse team. The Fourth Circuit rejected (which I discussed here) claims against the city and the investigating police officers involved; the plainitffs tried to get to SCOTUS on the issue of whether the prosecutor's conduct (which enjoys prosecutorial immunity) breaks the causal chain and cleanses the officers' misconduct when they conspired together. Interestingly, they did not seek cert on the "stigma-plus" theory of liability for other officer misconduct (on which the causal chain was not broken).
The plaintiffs still have state-law malicious prosecution claims pending. The next question may be whether the district court declines supplemental jurisdiction over those claims or decides to keep them, seeing as how this litigation is now 6+ years old.
Sunday, October 06, 2013
What the Difference Between Clothes and a Fig Leaf?
The question occurs to me after reading this snippet from Richard Posner's new book, Reflections on Judging, which strikes me as pretty minor Posner but still has its moments. The snippet takes place in the context of a discussion of what he believes is judges' "refusal . . . to confront, even to recognize, the challenge of complexity" posed by technology and other challenges:
Many lawyers are technologically challenged, just as the judges are, and so are drawn to the same avoidance techniques that judges retreat behind, while those who know better are anxious about deviating from the orthodox methods of legal argument, or fearful that judges will feel insulted to be spoon-fed appropriately simplified descriptions of the technological background to a case. I can assure the reader that we will not be. What would anger most judges would be a lawyer's telling them that it's time they dropped the pretense that judicial decisions are based on faithful adherence to statutory and constitutional language and to precedent. That's a fig leaf that almost all judges want to continue wearing.
I'm generally sympathetic to Posner's views on such matters and that's the case here, although I wonder whether it doesn't apply more to litigators, especially appellate litigators, than to lawyers in other areas.What I wonder is: If the kind of legalism he's referring to is a fig leaf that everyone insists on wearing, is there a point at which it becomes something other than a fig leaf? It's a truism that constitutional law, and perhaps other forms of law as well, is "just" a constrained or conventionalized form of politics. Is there a point at which the constraints are meaningful and accepted enough that they become more than "just" a concealed or constrained method of doing something else, and deserve to be taken seriously in their own right?
A fig leaf is a form of clothing that, at least in the biblical story, does nothing but conceal--and doesn't even do a good job of that, in God's eyes. Its only real function, in the end, is to reveal its own shameful and ridiculous nature. And yet there are vast industries devoted to taking clothes perfectly seriously, and occasions on which clothes serve a useful purpose. Is law, or the kind of legalism Posner is talking about, especially in constitutional interpretation, closer to the fig leaf or to what we generally think of as perfectly meaningful and heavily rule- and convention-bound clothing?
A couple of ways to think about this come from taking the metaphor seriously and thinking about (or, really, riffing on) the evolution of clothing. First, there is this possibility, which I think is an implicit theme of the chapter from which this quote is taken. Some clothing actually serves a useful function, particularly guarding us from injury--from scratches, freezing, and so forth. Clothing designed to serve that function might look quite different and work much better than clothing that purports to serve that function but really serves no functional purpose, either because it's not functional at all or because it has been designed for some other function. (I have bought some beautiful leather gloves for winter wear, in shops selling them as winter wear, that were largely useless for that purpose.) Perhaps legalism, in Posner's view, is similar. Obviously some very smart people have spent years working on better and better versions of textualism, originalism, and so on. These days some very smart liberals are working on very elaborate versions of the same thing. Some of this work seems pretty attractive. But, like working on a better pair of thin leather gloves, it might still be a massive waste of resources--wasted because it wasn't really undertaken with the underlying function in mind, overinvests in roundabout ways of achieving the actual function, and still doesn't do that great a job. It's like spending millions of hours and dollars working on a really scratch-resistant, durable, temperature-sensitive fig leaf, when what you really need is a decent piece of cloth and a string--or just plain nudity.
Another way to justify all this investment in legalism is more or less the way we justify most of what goes on with clothing. It serves little functional purpose physically speaking, but it does a variety of other things we care about: helping to signify social rank, or to preserve and extend moral norms, or to discriminate between or against different people, or to provide us with pleasure. It helps us to coordinate our actions, too, although it may do so inefficiently or improperly. Serving these kinds of convention can be a function, too, and one that matters a great deal to us, whether it should or not. Even if it should, of course, it can still do so badly, especially when we end up forgetting that we're really serving convention and pretending that we're doing something that's practically functional, or ask too much of those conventions, or hold on to them after they've served their purpose and another end is needed. This, too, seems like a pretty good description of legalism. I suspect Posner has little patience for this kind of justification. I have more patience for it than Posner does, although not all that much more. Certainly, in the final analysis, I am not inclined to be any more romantic about it than I am about the necktie or the codpiece, and I doubt that a good deal of legalism is any less wasteful than your average bowtie or periwig.
Friday, October 04, 2013
Compensation, Takings and Preventive Detention for Failure to Appear and Dangerousness
For a little while a couple years ago I was entertaining the thought that pretrial detention based on risk-based considerations (failure to appear or danger to oneself or the community or to the judicial process) was a regulatory takings that warranted compensation (at least normatively if not constitutionally). That position, it turned out, was largely advanced in a thoughtful piece by GW prof Jeff Manns on Liberty Takings.
I was delighted that I didn't pursue that line of thought, not only because it was preempted by Jeff but also because I soon realized the view wasn't entirely sound (at least to the extent I recall it now). In short, there's a big difference between the innocent property owner and the person who is preventively detained: namely, there is a hearing where a judicial officer finds that, at least in the fed context, clear and convincing evidence shows that the defendant poses a social risk of some sort that requires containment or management, however you want to frame it. (Manns recognizes the distinction between the innocent homeowner and the pretrial detainee but I think he gives it less normative significance than I do.)
Of course, that distinction doesn't mean the pretrial detainee deserves no compensation, but the force of the "takings" rhetoric or jurisprudence attenuates substantially; if there is a warrant for compensation it likely occurs at a substantially discounted rate insofar as the detainee is responsible for having created the risk.Interesting questions bear on what the discount should be, what the baseline should be, etc. Moreover, it doesn't at all follow that the detainee should be "boxed" or confined in the same kind of facilities as those who are convicted. A least intrusive means test is probably warranted, perhaps triggering what my colleague Sam Wiseman, in his forthcoming YLJ piece, has called a right to be monitored (electronically).
Let's stipulate for purposes of argument that at least in some cases, confinement is required for particular people, rather than monitoring. The box the detainee goes in, however, should be a pretty nice box, glibly akin to condos with views of the beach and wifi, rather than putrid and overcrowded jail cells. Along the same lines, if I'm right about the need to separate these preventive from punitive purposes, there would be no justification for extending credit for "time served" if the person is ultimately convicted (creating my unorthodox but I think justifiable view, a view that is naturally (!) pace my friend Adam Kolber in Against Proportional Punishment).
When looking at the pretrial detainee world, there is often agitation for compensation. But this doesn't necessarily follow as a matter of rights or out of respect for the presumption of innocence. Even compensating a later-acquitted defendant doesn't necessarily follow so long as the standards of proof and purposes/structures of confinement are properly respected. Compensation to the detained person would only be warranted if the detention proved to be tortiously procured through some form of negligence, recklessness, etc on the part of the prosecution. But it's not obvious that a good-faith preventive detention of a person who, with a lawyer by his side, is shown by the gov't to be dangerous by clear and convincing evidence, requires anything like a liberty takings model for compensation. The preventive detention box has purposes and structures and procedures that can be readily distinguished from those appropriate to the punitive boxes with their underlying purposes.
Of course, if we're serious about keeping these social projects distinct, then, per Justice Stevens' dissent in Salerno, the presence of an indictment is of no significance (except to the flight risk group). And if that's true, we should be able to have a restrictive though non-punitive form of preventive detention available for the future dangerousness folks (putting me in good company with Justice Stevens, though not Justice Marshall in Salerno). That model would probably look a good bit like Chris Slobogin's proposed regime of preventive detention (see his piece in Criminal Law Conversations), but perhaps without some of the pre-requisites he required (again, if I recall correctly).
This was roughly the set of views I tried to communicate to my students yesterday in teaching about pretrial detention and Salerno. However, as we were talking in class yesterday, I thought the liberty takings argument had more force in the context of the post-conviction post-punishment detainment of folks, e.g., the sexually violent predator types in Kansas v. Hendricks. I realized those guys do warrant full compensation for the liberty takings (though again, query what the baseline is there, and whether the baseline should be discounted for earlier choice-tracking behavior on their part).
To summarize, I wonder who has the best claim to liberty takings compensation in the preventive detention world. If I'm right, the people who have the best claim are the SVPs or the mentally/criminally insane who are confined but not punished/blamed (anymore). Ironically, if I'm right, even acquitted (and even convicted) defendants who were detained would not have a strong moral claim to full compensation for pretrial detentions on a liberty takings model unless they could show that the detention was tortiously procured through misconduct on the part of the government. That said, even though these folks are not akin to innocent homeowners whose property is taken, they do have some claim to some compensation and incredibly better detention facilities than we currently extend to them. Indeed, home detention plus surveillance options are probably the closest reasonable approaches.
And perhaps most unorthodox is the claim that we should eliminate altogether the pervasive practice of giving credit for "time served" in jails for pretrial detention. Extending time-served only blurs the lines between preventive detention and punishment and makes the goverment less circumspect in their decisions about who they box and under what guise. Anyway, this is just a first pass attempt at making sense (to me) of these boxes and social functions, and I will be revisiting the literature (including the Kolber, Slobogin, Manns pieces among others) if and when I flesh out these views further. Tell me in the comments if I'm way off base (at least normatively, if not constitutionally), and if you think someone has already articulated these views more coherently so that I don't bother chasing rabbits down a preempted hole.
How many disputes is "too many" for the Court?
According to this report ("Kennedy Says Too Many Disputes Left for Court"), Justice Anthony Kennedy recently shared with a group at the University of Pennsylvania his view that "any society that relies on nine unelected judges to resolve the most serious issues of the day is not a functioning democracy." He added, "I just don't think that a democracy is responsible if it doesn't have a political, rational, respectful, decent discourse so it can solve these problems before they come to the court."
Let's resist the temptation to snark a bit about the strangeness of these words coming from a member of the Court who has not seemed, over the past several decades, particularly squeamish about judicial supremacy and all that. One the one hand, I agree, sort of, with what the Justice said, though I suspect that if I'm honest with myself (ed.: Why do that?) I am, like most people, probably guilty of thinking that the "right amount" of Court-resolved serious questions is an amount that corresponds with the number of such issues I believe the Court has resolved correctly. On the other hand, I am not sure it's right that even a decent, functioning democracy of the most ideal type should be expected to "solve" or "resolve" the kind of questions I suspect Justice Kennedy has in mind, if by "solve" he means "identify the Correct Solutions" to these problems or the "Right Answers" to these questions. Certainly, such a decent, functioning democracy could, after plenty of "political, rational, respectful, decent discourse", take a vote regarding the solution or answer, but I'm assuming Justice Kennedy doesn't think that "high-quality discourse plus majority vote" should put the Court out of the judicial-review business. So . . . what is he saying, exactly?
Thursday, October 03, 2013
2013 Faculty Hiring: Will Schools Be Looking for More This Year?
In making new faculty hires, law schools have traditionally focused scholarship and teaching, often looking specifically at a candidate's research agenda and teaching package. Most of the questions asked at those 25-minute interviews revolve around these topics. But I'm wondering if this year will be different. My hypothesis is that some schools will go beyond the traditional research-and-teaching-package questions to see what else a candidate might provide to the school. And my guess is that these questions will focus on how the candidate could help with employment outcomes and new pedadgogical directions.
These are not traditional topics for questions, and schools with higher employment and salary numbers will be likely focus on the candidate's scholarship. But at schools where students are struggling harder to find jobs, and where graduates may be looking for more practice-readiness, schools may be thinking more broadly about what a candidate can bring to the table. So -- does a candidate have a connection to the market(s) where the school's graduates are looking to work? Would she/he be able to facilitate connections between students and a new set of potential employers? Does he/she have subject-matter expertise that would lend itself to a center, not just for academic reasons but also because it would help students find jobs in the area? And some schools might be looking for profs who can teach not only the traditional doctrinal subjects but also more innovative or practice-oriented offerings. So -- would a business law prof be interested in working with an entrepreneurship clinic, lab, or externship program? Would a civ pro candidate want to work with appellate moot court teams, or help to set up a state supreme court clinic? Would the candidate consider working on a capstone course, like a ten-credit practicum, that the school is considering adopting?
There's a traditional dialogue in the hiring process, captured nicely by Christine Hurt's animated short. But I'm wondering if this year might be a little different. Hiring committees and candidates, feel free to weigh in. Will schools be looking for something different? Should they?
Casey on Law School
Via Brian Leiter, here is a speech by Chicago Law's Anthony Casey addressing incoming law students. I agree with Brian that it's an excellent and thought-provoking speech, and rather than excerpt it I will simply encourage you to read the whole thing. It did leave me with a few questions and observations:
1) Casey writes: "People quite ignorant of what a good lawyer does will tell you that law school should be shorter, that law school should teach students how to pass the bar, that law students learn too much theory." Although I agree with his disagreement, I don't think his talk tells us how long law school should be, whether the combination of undergraduate education and law school could or should be restructured, and other details.
2) Law professors reading this as a general defense of the status quo would be mistaken. Even if Casey is right about the intellectual features that he thinks should be a part of legal education, that doesn't mean we always (or generally) succeed in providing them, or doing them well. If you agree with Casey's general vision of legal education, you ought to view it as a demanding standard and ask how well you are (I am) meeting it, rather than just standing pat on it.
3) I wonder how and whether Casey's vision comports with something Mark Tushnet writes in his (most) recent book, In the Balance: Law and Politics on the Roberts Court. I don't have the full quote here (it's on page 98), but Tushnet writes from experience, and not in a critical way, that "lawyers learn different--other--things in less elite schools." That is consistent with my experience at a variety of law schools as well. It often makes sense, although there is emphatically room to think that lawyers at elite law schools ought to learn more immediately practical things, and that lawyers at "less elite schools" sometimes ought to get more of the kind of instruction Casey is talking about. (I'm sure both happen sometimes.) I don't have a straight answer here, and I think the kinds of things Casey is talking about are a valuable component of a professional (or maybe a liberal) education, but one must note that his experience is more narrow than the experience of some teachers, and think about how to adapt the kinds of things he is talking about to different contexts.
One doesn't have to accept every line of Casey's talk to find it interesting and thought-provoking, however, and it is beautifully written to boot.
"Enduring Hierarchies in American Legal Education"
My colleague Andrew Morriss, along with Olufunmilayo Arewa and William Henderson, has posted on SSRN an article titled Enduring Hierarchies in American Legal Education, forthcoming in the Indiana Law Journal. It sounds interesting! Here's the abstract:
Although much attention has been paid to U.S. News & World Report’s rankings of U.S. law schools, the hierarchy it describes is a long-standing one rather than a recent innovation. In this Article, we show the presence of a consistent hierarchy of U.S. law schools from the 1930s to the present, provide a categorization of law schools for use in research on trends in legal education, and examine the impact of U.S. News’s introduction of a national, ordinal ranking on this established hierarchy. The Article examines the impact of such hierarchies for a range of decision-making in law school contexts, including the role of hierarchies in promotion, tenure, publication, and admissions, for employers in hiring, and for prospective law students in choosing a law school. This Article concludes with suggestions for ways the legal academy can move beyond existing hierarchies and at the same time address issues of pressing concern in the legal education sector. Finally, the Article provides a categorization of law schools across time that can serve as a basis for future empirical work on trends in legal education and scholarship.
Why We Can't Have Nice Things, Part 743
For those who are interested in law and religion issues, or national security, or education, or languages, or insanity, here is a story about Alabama parents objecting to an Arabic language class being taught in their local high school.
Why are they objecting? Because, as one parent said, “This is America, and English is our language, and while I understand the alleged premise of offering Arabic at our high school, I don’t agree with it. . . . “It is not just another language; it is a language of a religion of hate. I’m concerned about our taxpayer dollars going to fund such a program, because I don’t believe it has a lot of foundational value. . . . It just concerns me that we’re headed down a path of further eroding our society to a Muslim-based society, or Sharia law (the moral code of Islam), and I’m not willing to let that happen without … something to say about it.”
As another parent helpfully added, "They’re trying to indoctrinate our children with this culture that has failed. . . . .Why should we want to teach our kids a failed culture when we have a culture that has been successful? All we have to do is follow our Christian culture, which has brought this nation to the pinnacle of success. … I don’t see why they would want to teach this.”
Wednesday, October 02, 2013
Does the First Amendment exception to the government shutdown violate the First Amendment?
Well, I was joking. But I guess we should not overestimate the ability of members of Congress to engage in absurd demagoguery, especially when it involves the Greatest Generation. So as the sign at left shows and as a couple of commentators to my earlier post pointed out, national parks are closed, except for "1st Amendment activities." So park police will not be in the awkward position of arresting WW II veterans for trespassing. And Republican congressmen may lose at least one photo opportunity.
The question, of course, is what constitutes "1st Amendment activities," who decides, and how. Is it simply visiting a memorial or monument to see it (which is what the Honor Flights from Mississippi were trying to do)? If so, why should the WW II Memorial be different than any other national park, even one that doesn't have a particular monument, but is a historical, special, or meaningful place to see (which would seem to be, by definition, any place the government saw fit to designate a national park)? This all looks ripe for some pretty blatant content/viewpoint discrimination, wherein "1st Amendment activities" are only those engaged in by people who have congressmen helping them move fences.
If I'm the attorney for the Klan, I'm in district court right now asking for a declaratory judgment that the above sign means they can hold their scheduled rally (which involves actual expression of their own) on Saturday.
Wrong amendmentJack Balkin says the government shutdown violates the Second Amendment, because people cannot bring their guns to national parks. A Pennsylvania Maryland chapter of the KKK begs to differ--the shutdown violates the First Amendment.
Tuesday, October 01, 2013
It's All About the States
An article today in the Washington Post about the limits on Boehner’s leadership options touched a nerve with me, not just because of what it tells us about the causes of and possible resolutions to the shutdown (it’s a grim read), but because it highlights what I think is one of the great failures, or at least blindspots, of legal academia.
The legal academy loves—just loves—to write about the federal system. For every article on state criminal law issues there are dozens and dozens on federal criminal law, even though state prisons hold nearly 90% of all prisoners and federal criminal law is a unique beast that provides no insights about state criminal justice.
And I bet there have been close to a quadrillion words spilled on the US Supreme Court, looking at it from every doctrinal, methodological, empirical, Kremlinological, and any other “-ical” angle. Yet nowhere near that much attention has been paid to state supreme courts, which likely play just as big, not a bigger, roles in our day to day lives.1 If it’s federal, it must be important. And if it’s state, well….
I get it. The major law reviews aren’t going to publish an article about Kansas law, and an article about state policies won’t get cited by the US Supreme Court (but it may get discussed by a state supreme court, which isn’t nothing). Plus it is just so much easier: there is just one federal policy for every issue, not some chaotic swirl of 50 different approaches. But all this could just mean that our incentives are misaligned and that we are generally overlooking what really matters and what is really driving policy.Which is why I found the following part of a conversation between the WaPo’s Ezra Klein and the NRO’s Robert Costa so satisfying. Professionally satisfying, that is, as someone who focuses exclusively on state policy. The implications for resolving gridlock are, as I noted above, grim. But putting aside the whole “political and economic health of our country” issue, very satisfying.
Costa—a National Review correspondent, mind you—has acknowledged that many of the Tea Party Representatives live in an echo-chamber cocoon that convinces them they can accomplish what they in fact cannot. Lest you think I paraphrase poorly, this is how a National Review journalist describes the Tea Party fringe:
And so many of these members now live in the conservative world of talk radio and tea party conventions and Fox News invitations. And so the conservative strategy of the moment, no matter how unrealistic it might be, catches fire. The members begin to believe they can achieve things in divided government that most objective observers would believe is impossible.
Depressing, but not what I want to focus on. It’s Klein’s follow-up question, and Costa’s answer, that matter here:
EK: Why does that happen, though? It would absolutely be possible for liberal members to cocoon themselves in a network of liberal Web sites and liberal cable news shows and liberals activists. But in the end, liberal members of Congress end up agreeing to broadly conventional definitions of what is and isn’t politically realistic. So how do House Republicans end up convincing themselves of unrealistic plans, particularly when they’ve seen them fail before, and when respected voices in the Republican and even conservative establishment are warning against them?
RC: When you get the members off the talking points you come to a simple conclusion: They don't face consequences for taking these hardline positions. When you hear members talk candidly about their biggest victory, it wasn’t winning the House in 2010. It was winning the state legislatures in 2010 because they were able to redraw their districts so they had many more conservative voters. The members get heat from the press but they don't get heat from back home.
Why are we in this mess? State law. After all, redistricting is a state issue, and every state is free to do it how it sees fit. Some gerrymander like crazy while others have relatively realistic boundaries (even though gerrymandering does not really matter for aggregate outcomes); at least one relies on an independent commission while most leave it to whoever happens to control the state legislature in years ending in “zero” (which makes total sense); some aggressively fighter the specter of “voter fraud” while others take a more open approach.
The point is: at the end of the day, the current mess in Congress is the result of state laws, state policies, and state electoral outcomes. You can’t look just at Congress and have any idea why this is happening or how it is going to change.
I don’t have any hope that we’ll suddenly see piles of articles on state supreme courts and county probation policies (even though there are 3.9 million people on parole and only 140,000 in federal prisons). But it never hurts to point out that however important the federal “thing”—court, legislature, code, regulation, etc., etc., etc.—seems, the sate analog is probably doing more work and affecting more people.
1 Perhaps my disdain for the importance of Court is shaped in part by the fact that I am a straight, white male, so some of the Court’s bigger opinions haven’t changed my rights at all. But even then, I live in New York State, a state that legalized abortion before Roe, gay sex before Lawrence, and gay marriage before Windsor and Hollingsworth. (Yes, those were legislative acts, not judicial, but still points to centrality of the state actors.) And the list goes on: half of all states had an exclusionary rule before Mapp, for example,
It’s somehow already October and time to sign off. It’s been fun blogging here; thanks for all the comments. Good luck to those on the meat market and I hope to see the rest of you at AALS in January. You can normally find me on Family Law Prof Blog, and can also find an academic treatment of some of my blog posts here.
Until next time, Margaret
Luck, Taxation, and the PPACA
I am not a health economist, nor a political scientist, so I’m not exactly the most qualified person to talk about today’s shutdown. But I am a law professor, and one of our birthrights is a sense of entitlement that allows us to write about anything at all, regardless of our level of expertise.
Moreover, unlike a lot of policy debates, I have a direct, personal stake in this one. My wife and I had twins on Christmas Eve, one of whom was born with major defects in his heart, aorta, esophagus, and lungs. While he is making amazing strides, he spent over three months in the NICU at Columbia and has been in and out of Columbia and Boston Children’s Hospital for months. Needless to say, I’ve been thinking a lot about medical costs lately.
Not surprisingly, my family is a direct beneficiary of the PPACA. My son has a laundry list of pre-existing conditions (nothing is more pre-existing than a congenital defect), and if his medical bills haven’t exceeded $2 million yet, they will by the time he turns one. And the PPACA has made it illegal for insurance companies to deny coverage based on pre-existing conditions, and prior to the PPACA insurance companies often imposed lifetime (!) benefits caps of $2 million, meaning that my son would be uninsurable before his first birthday. So I am admittedly not a neutral observer.I don’t want to talk about the individual mandate issue, even though that is often at the heart of the debate. I think Uwe Reinholdt, in a single NY Times blog post, pretty much puts that whole topic to rest. In short, Americans want three things: universal access, affordable care, and no mandate. Unfortunately, only two of the three can exist at any one point in time. If someone promises you all three, that person is either lying or hasn’t thought things through. And at the end of the day, I think Americans want the first two more than the third, despite all the rhetoric to the contrary today.
Instead, I want to think a bit about the taxation/reduced-benefits-for-the-insured issue and how it relates to Obama’s controversial “You didn’t build that” statement. As Uwe Reinholdt points out in a different blog post, one cause of US exceptionalism in health care (and I don’t mean that as a compliment) is an attitudinal difference:
The vast majority of citizens in these countries view health care as a “social good” that is to be shared on the basis of need by all on roughly equal terms and is to be financed largely on the basis of ability to pay.
By contrast, Americans have never agreed on a shared social ethic that should govern their health system, as the current debate over health reform has made visibly and audibly clear.
Likely part of our opposition to viewing health care as a social good stems from the deep-seated libertarianism that runs through much of our political discourse. (It seems fair to say that even the American left is more libertarian than its European counterparts.) We view our money as our own (“I built it!”), and so if someone wants to take it—to, say, provide insurance for the less well-off—the justification burden is high. But there are two problems with that argument, one general and one perhaps more specific to health care issues.
More generally, our liberatarianism is likely tied to our perceptions that our economy is a meritocracy. Of course, we grossly overstate the degree of intergenerational mobility (the “American Dream” is more alive in Sweden than here), but there is an even deeper problem with the libertarian/meritocratic perspective: to a perhaps-disturbing degree, meritocracies reward generic lotteries.
In our economy, smart people rise to the top, but those smart people didn’t earn their intelligence, they were born with it. And to the extent that it was nurtured and cultured, that is due to their parents (since the returns on education are greatest when we are quite young, and thus before we are making many decisions on our own). And that work ethic? Again, significantly genetic and parental.
It’s true: you really didn’t build it, or at least not all of it. Which isn’t to argue for some sort of completely-leveling socialist state. Incentives are important, and those who take risks need rewards to compensate them. But once we realize that meritocracies are largely genetic and birth-parent lotteries, the moral claim on wealth becomes a bit weaker on the margin, and the moral argument for taking care of the less-lucky-in-birth becomes stronger.
More specifically to health care, many large health care shocks are purely random. It is perhaps easy to make “personal responsibility” arguments when debating how much help to give the smoker who gets lung cancer. But congenital heart defects? They afflict one in one hundred babies born every year—that’s about 42,000 of the 4.2 million annual births—and have no easily identifiable causes. Certainly the baby has done nothing wrong, and more often than not neither have the parents. It’s a just random. And this is true of plenty of cancers, heart attacks, strokes, and other high-cost medical problems.
And medical costs can be an expensive random shock. A single night in Columbia’s NICU costs $11,000, and that’s just for the nursing and general supervision (worth every cent). The neonatologist stopping by? That’s another $1,500. The x-rays, fluoroscopes, echocardiograms? More and more thousands. We received a single, 76-page bill for just part of our son’s NICU stay that totaled over $1.3 million.
Now, in our case, we were lucky. My wife’s company provides great insurance, and we will be able to weather the financial storm. (Our share of that $1.3M bill? $500.) But it is easy to see how even a short stay in the NICU can completely wipe out a family’s savings and drive them into bankruptcy.1
Now one way to approach the faultless un- or under-insured family whose finances are shattered by something like a sick baby is to view that family as simply unlucky. Awful, but what can you do? The other way to approach the situation is for those who have never experienced such financial hardship to appreciate just how lucky—truly lucky, as in you-did-nothing-to-deserve-this-luck-but-just-win-a-lottery lucky—they are. And when viewed that way, the moral claim the lucky have on their wealth becomes weaker. They may have earned some of their wealth, but some of it comes from not experiencing random shocks that others have. And when seen that way, taxing them or restricting some of their options seems much more morally justifiable, even given the general public’s relatively libertarian bent.
To me, the aversion to having to raise taxes to care for those who have not won the meritocratic race reflects a significant failure to appreciate the role luck—luck in birth, luck in parenting, luck in not experiencing a major medical shock—plays in our lives. If someone is in a position to see his taxes go up or his benefits somewhat restricted by the PPACA, then he is actually in a quite lucky place. And the moral claim to keep the benefits that luck has provided them completely untouched strikes me as quite weak.
1 Not surprisingly, despite all the “personal responsibility” and “profligacy” rhetoric surrounding our tough, new bankruptcy laws, medical expenses are responsible for 60% of American bankruptcies.
Talent Wants to Be Free!
I'm so thrilled to announce the publication of Orly Lobel's book, Talent Wants to Be Free.
Here's a bit about it:
The book is about how each of us can become more creative, innovative, energized and motivated throughout our work lives. The book looks at how we fight over human capital, knowledge and skill in every industry, profession, and region, looking at the spread of non-competes, trade secrets, patent and copyright pre-invention assignment, human capital antitrust, and the balancing of secrecy & sharing, carrots & sticks, freedom & control to incentivize us in different settings. Through empirical research and insights from economics, psychology, law and business, it argues that more frequently than we have come to believe, everyone, corporations, individuals, industries, and regions benefits when talent is set free. Talent Wants to Be Free is available on on Amazon, B&N, Indie Bound, 800-CEO-READ . You can read advance reviews by Publishers Weekly, Biz Ed Magazine, Dan Ariely (Predictably Irrational), Tal Ben-Shahar (Happier), Martha Minow (Not Only for Myself; Dean, Harvard Law School), Frank Partnoy (Wait), Chris Sprigman (Knockoff Economy), Jason Mazonne (Copyfraud) and others here. You can also taste a fun short article highlighting some ideas from the book here: http://changethis.com/manifesto/show/109.04.Talent and new articles in Businessweek, and Fortune.
Also, Dan Solove did an interview with Orly today on his Linked In Influencer spot.