PrawfsBlawg

Living Outside the Paradigms

Two different pieces got me thinking again about issues of depth and breadth, or alternatively, working in the spaces between disciplines.  (I'm loath to call it either inter-disciplinary or cross-disciplinary, because, to some extent, those terms already tinge the meta-thinking about it.)  I was explaining this yesterday to my father-in-law, who is visiting us here in Michigan.  He's a really bright guy (a lawyer), and loves ideas, but he's not a scholar by any means, and so I'm obliged to use plain English.  It went like this.  If you are constructing a thesis that borrows from many disciplines, how much of an expert in each discipline do you need to be?  Moreover, if it's really original work, who is going to be able to judge whether the work constructively pushes the inquiry along, or is simply bullshit?*  In other words, if you are going to write in law and phrenology, do you have to have the equivalent of a professional certification (whatever that is) in both disciplines?  And if you do, have you been sufficiently co-opted by both disciplines so as to kill off whatever inclination you may have had to do "out of the box" thinking?  That's the dilemma, and I don't think it's any more resolvable by way of a silver bullet than most other long-standing irresolvable debates (like "Tastes Great" or "Less Filling").

At the recommendation of frequent commenter, A.J. Sutter, I recently started a book by Hamline University philosopher of science, Stephen Kellert, entitled Borrowed Knowledge:  Chaos Theory and the Challenge of Learning Across Disciplines.  At the same time, Brian Leiter linked the other day to my friend Rob Kar's recent review (in the Notre Dame Philosophical Reviews) of Brian's Naturalizing Jurisprudence.  The fun in reading something like Brian's work, or Rob's review of it, is the deep dive into a long-standing dialogue; in this case, the jurisprudential debates over the last century or so over the possibility of explaining, philosophically, scientifically, sociologically, or psychologically, how judges go about making law, and more fundamentally, what law is.  Nevertheless, if your intuition happens to be that looking at what judges do is like looking backwards through a telescope (i.e., not wrong, but focused on a very particular instance of how humans manage to order their affairs in the whole scheme of life, law, norms, and business), then you keep bouncing out of it with something of a "so what?"  The "so what?" is likely the reaction of most normal people to most of what philosophers, historians, literary critics, and other sojourners in the humanities do anyway, but I'm a lawyer-practitioner who somehow plopped into the academy, for God's sake, and like Guy Noir, trying to find answers to life's persistent questions.  I thus feel compelled to figure out what might bridge us from the relatively pure jurisprudence of a Leiter or Hart or Raz to what I spent more than a quarter century doing in the real world, which was legal work, but most of the time not involving judges.

More below the fold on the opposite of the deep dive - borrowing from one field to another.

A couple of years ago, I got hung up on Gödel's Theorem, which is one of the groundbreaking instances of pure thought in the last century.  For the uninitiated, Bertrand Russell and Alfred North Whitehead purported to reduce all of mathematics to a set of foundational axioms and rules of inference, focusing primarily on sets and numbers (cardinal, ordinal, real).  Kurt Gödel, a member of the Vienna Circle, constructed a lengthy proof, the purpose of which was to show that any complete complex system of formal logic, like arithmetic (particularly as encapsuled by Whitehead & North's Principia Mathematica), contained propositions that were formally undecidable within the system (i.e., that they could not be proved either true or false using the axioms and rules of inference).  In other words, the system could be either wholly consistent or complete, but not both.  The proof method involves a formal version of the Liar's Paradox, in which the following phrase translates into numbers:  "[Is not provable] is not provable."  In other words,  we get to the point where the system loops on itself, and tells us in formal terms, that the  proposition "is not provable" we've postulated within the system, and then working only from the system's basic axioms and rules of inference, and thus appearing to be provable, is not provable.  That's what makes it a theorem.

This is a mind-bending thing to contemplate, and Douglas Hofstadter's Gödel, Escher, Bach is perhaps the most famous attempt to derive metaphors from it.  But is it an effective metaphor for reducibility or limitations on knowledge, or other epistemological or metaphysical insights?  Gödel himself, like many mathematicians, was something of a Platonist. 

When I was fiddling around with this (and there's a lot of fiddling in this area - do a Lexis or Westlaw search in law reviews on "Gödel"), Larry Solum, ever wise, voiced the cautionary message:  the formal logicians are very skeptical of attempts to extend metaphors from formal logic into other areas.  But are the logicians entitled to define the extension of the metaphor?  That's what Kellert's book is about, but more generally as to all disciplines (including a discussion of the question "what's a good metaphor?").  In particular, he looks at metaphors to chaos theory, something HE knows about, in economics, law, and literature.

Well, I'm just diving into this, so more to come later.

* I may have a special interest in this.  I have a book proposal under review with a major university press.  The following comment from one of the anonymous reviewers is one that I kind of cherish:  "It is clear the author has a special range of interest and expertise, and this book weaves the author’s unique range of interests together with purpose.  The problem is that not many people share the author’s range of interests."

Cambridge Police

I have been thinking for a few days about the Gates incident, trying to decide if I wanted to comment.  I am somewhat astounded at the number of people who are willing to be triers of fact on pretty sketchy evidence; my take on the world is more things like this arise out of fear, miscommunication, confusion, pride, and escalation than racism or bad intent.  In short, we all get a chance in our lives to do something stupid - whether it's in public or at the wrong time is a matter of luck.  My charitable interpretation is that everybody would prefer to take something back.

What I really wanted to comment about, however, was my unrelated experiences with the Cambridge Police Department.  Cambridge is one of the densest cities in the U.S. - it's very diverse economically and racially, and there is far less correlation between neighborhoods on those indicia than any place we've ever lived.  We live on a street off Porter Square that has expensive private housing, public housing, low income housing, and a hybrid "co-housing" (which is a kind of cross between a really nice condo and a kibbutz).  It is a semi-urban environment.  You don't know who all your neighbors are.  There are problems from time to time that are typical of cities - property crime (our house was robbed last year and we were unimpressed with the reaction of the detectives), drugs, etc.  Near the end of last year, there were two incidents of muggings on our street (one alleged perp was white, one alleged perp was black - it was equal opportunity street crime), and several of us began organizing a street association.  We had wonderful support from the Public Affairs Department of the Cambridge Police, the neighborhood sergeants and officers, and Commissioner Robert Haas himself, who has showed up at every event, including our "health and safety walk," in which about 50 neighbors did an inspection of dark areas, broken lights, and other safety issues.

Neither I nor anybody else is going to be able to make credible generalizations about individuals on the force, but on far more solid evidence than has come to fore on this incident, I have the impression that Commissioner Haas espouses a progressive kind of leadership that emphasizes a solid relationship between the department and citizens who want to take some responsibility for their own well-being.  That's not to excuse an officer who made a poor judgment (I suspect) about not just walking away from somebody who sounds like he was very agitated but not dangerous, nor does it minimize the real concerns about the presumptions black men have to face every day, but I just wanted to put in an unsolicited plug for the Cambridge Police Department on my little shred of evidence.

[Ed. note by DM: I took the liberty of deleting the anon comments in the thread below. It became a bit of a train wreck, as one of my former students noted; I apologize in advance for the fact that the comment thread now might be a little disjointed. If there's a desire to leave signed comments, please feel free to do so in a way consistent with our comment policy.]

Walking the Fine Line Between "Wide-Ranging" and "Shallow"

I started to write another comment to Dave Fagundes' interesting post on puzzle and prescription papers, but decided it deserved separate billing.

Just to review the bidding, the question is whether it's really the rule that all law review articles "must" have a normative, prescriptive coda (meaning that most turn out to be "prescriptive" rather than "puzzle" papers).  What Dave's wise mentor advised certainly (and anecdotally) strikes me as the conventional wisdom, because that's exactly what an old friend (law school classmate and former elite school dean) told me when I showed him the first piece I published.  My intuition is that this conventional wisdom is akin to the conventional wisdom on cross-examination techniques:  don't ever ask a question to which you don't know the answer.  That is advice designed to ensure that you never make a mistake, but the downside is that there are, indeed, times when experienced cross-examiners can ask questions whose answers they don't know, and following the conventional wisdom means you lose a great opportunity.  (For example, you can ask a question in which either possible answer works for you.)

My other intuition is that conventional wisdom generally arises out of community norms, which may or may not have anything to do with "truth-seeking" of pure inquiry.  Dave suggested maybe it was naive to strive for the ideal of pure inquiry, but I don't think it is (in a qualified way).  The distinction between regulative processes and constitutive processes is helpful here.  (My inner Kant is showing through.)   What we can recognize is, in terms of what we are ever going to know substantively (that is, "constitutive knowledge"), that we are hung somewhere between foundational truths and pure skepticism, and having to observe the objective world from a subjective standpoint.  Substantively, you can swing to the dogmatic side of things, and accept "normative" principles as TRUE foundationally, and you have to deal with the fact that others are going to take your assertions as faith-based or brute or unprovable or unreasoned.  Or you can swing all the way to the other side, and refuse to accept any normativity as TRUE foundationally, in which case you qualify as a Crit or maybe a pragmatic skeptic (that's how Richard Posner describes himself), but you still have to account for the intuitions of foundational truth. 

I know that my own thinking and writing has been described back to me as "wide-ranging," "wild," "layered rather than drilled," to which my response is that I try to walk the fine line between "wide-ranging" and "shallow."  It just doesn't strike me that what I really want to figure out about the world (being, as I am, an introspective sort) is defined by the norms a particular academic or professional community has put in place (notwithstanding the impact this has on an academic career, which is another factor in all of this, and something I'm somewhat less affected by).  I mean, think about Kuhnian paradigm, or the Luhmann critique of law as autopoietic (i.e. self-contained and self-generating).  This is, of course, the problem with cross- or inter-disciplinary work.  Is it wide-ranging or shallow?  Do you have to have an advanced degree in both disciplines to be qualified?  But if you have the advanced degrees, aren't you co-opted by the community norms and hence really not inter-disciplinary?

Pure inquiry of the kind to which Dave aspires strikes me as a concept not of pragmatic skepticism, but of pragmatic idealism, which tries to mediate between the fact that some things seem to be incapable of resolution except by brute acceptance and sinking into utter indeterminacy.  The best response I can come up with is some form of regulative process - reflective equilibrium (Rawls), reasoned argument, discourse (Habermas), or some such.

NORMATIVE, PRESCRIPTIVE CODA:  The world would be a better place, lawyers would be happier, human flourishing would be enhanced, and better and more ideas would be generated if the legal academy reflected on the community norms that suggest law review articles have normative, prescriptive codas.

Introducing Tablet

One of my favorite gateways to Jewish cultural and literary trends over the last few years has been via Nextbook, which I've linked to repeatedly here at Prawfs (and also on Facebook). Happily, Nextbook has been re-branded and re-launched as Tablet, edited by Alana Newhouse and assisted by a cast of wonderful, quirky, and thoughtful writers (including former Prawfs guest Jay Michaelson).  You can still find the amazing collection of books published by Nextbook over here, but for a daily fix, I highly recommend adding Tablet's blog, The Scroll, to your RSS feed. If this past week's content is a good predictor of future trajectories, we're in excellent shape. Here's a taste of some of what's been on the menu recently:

• Allison Hoffman's feature on casting Hasidic (looking) actors for Broadway and Hollywood 
•         Mark Oppenheimer's incisive analysis of where James von Brunn fits into the landscape of                 America antisemitism 
•         An essay by Adam Kirsch, one of our generation's most distinguished critics, on George Eliot 

Cord Blood Banking: Worth It?

As I indicated in Eduardo's post the other day about paternity leave, I'm thrilled and a bit nervous about the prospect of becoming a dad later this summer--blogging has thus fallen a bit as I try to take care of a number of loose ends both in and outside my professional life, e.g., buying a four door car (Accord or Odyssey? Camry or Siena? Hybrid or worry about the EMF radiation?)

One thing I figure the Prawfs crowd of readers has probably considered is the issue of preserving the baby's cord blood. What say y'all on whether it makes sense to do? I posted this quandary earlier on Facebook today and most of the six people or so who have responded (including the wife of my cousin/doctor) have said it's an enterprise basically aimed at preying upon anxious parents (who me?) at vulnerable times with very little prospect of benefit.  Apparently the academy of pediatricians agrees. What do you think? Disagree? Please feel free to post links in the comments to help nervous nellie parents to be. Thanks.  And feel free to weigh in on the respective car choices too...

The Asinine Evidence for Largely Irrelevant Inquiries: Kagan and SCOTUS

I just got back the other day from a quick trip to Israel, where I was teaching a mini-course on punishment and sentencing at Bar Ilan, so I haven't had a chance to do much substantive blogging lately. That said, in the morass of catch-up, I did come across a recent judicial politics posting on NRO (which I came across via ATL) that I though warranted some response. 

In her post, Wendy Long argues that Elena Kagan shouldn't be awarded any points by conservatives in the post-Souter confirmation process for her purported success in making HLS more hospitable to libertarians and conservatives. Why not? Because under Kagan's tenure as dean, only 3 "conservatives" were hired (Goldsmith, Manning, and Vermeule), and this represents only 7% of the hires made during Kagan's time as dean.

Long's argument is based on a simplistic understanding of law school hiring. 

If Long's inference is to be valid, one must assume that a dean of HLS (like other law schools) can simply appoint or not appoint persons to the faculty of her choosing.  But that assumption cannot be granted.  There's a sausage factory hiring process usually influenced if not controlled by an appointments committee. While the dean may appoint the chair and members of the committee, anyone familiar with academic politics knows it's unlikely that the chair will simply push through whichever candidates the dean may be excited about. Moreover, deans are usually leery of getting entrenched in appointments matters for fear of stepping on the toes of the committee and the faculty when they make their respective votes. Deciding membership on the faculty, after all, is often at the core of faculty governance. 

Two more points: first, if the number of conservatives or libertarians hired is thought relevant to gauge the open-mindedness or moderateness of a dean, then so too (if not equally in weight) would be the number of offers made by faculties and deans--one can't always lure every conservative away, even to a place like HLS. But Long gives no information on the number of offers made but rejected. Second, Long also provides no evidence or argument on the number of stellar "conservative" faculty who should have (or plausibly could have) been appointed to the HLS faculty. There might well be the same kind of "size of the pipeline" arguments in this context that are raised in other contexts. While there are many talented conservative and libertarian scholars, how many of them would be clearly "above the median" of the HLS faculty if the goal of the faculty is to improve itself? Long says nothing on this.

In sum, taking credit or blame for faculty hiring is a bit like Presidents taking too much credit or blame in the managing of the economy. Senators (or citizens) should not think that Kagan's potential merits as a Justice are diminished in any way on the grounds of the putatively small number of conservative faculty hired during her tenure as dean. If one is inclined to agree with the analysis above, or parts thereof, I think it makes sense to consider to what extent it makes sense to hold deans "responsible" or accountable for the numbers of women or minorities hired also. Problems in faculty hiring are almost invariably the product of a "they," not a she.

That's not to say Kagan's experience as HLS dean is utterly irrelevant. There may be some qualities that map well between dean and Justice.  Indeed, one fruitful line of inquiry would ask whether, for example, conservative and libertarian student groups, professors, and individual students reacted positively to Kagan's deanship? Did they feel they were listened to, treated fairly, and included in the relevant realms of decision making? Does the same hold true for women and minorities? If the answer to those questions is yes, those are marks of a good dean. And those signals of open-mindedness might indicate some of the liberal virtues we hope judges also exercise. But the achievements  of a good dean are not the same as the achievements or virtues that conduce to being a good Justice--a point that should make readers even more suspicious of Long's tendentious post.  

I'm glad I wasn't asked to moderate this panel discussion.

David Ignatius' moderating role in this Davos forum was not an easy one to perform. Without getting into the merits of the underlying debate topic, I'm curious to hear from those who have moderated difficult panels about how they tried to control things to avoid panelists from leaving in a huff...and I guess I'm also interested in hearing from those on panels that failed regarding why they thought the panels failed!

Just Wondering

What would your reaction be if you found out that some law professor had written and published two articles at the same time taking diametrically opposed positions on the same question or issue or set of problems?  In other words, to take a rather simple example, say a prawf decided to write one article all about how the Endangered Species Act was unconstitutional as applied to small populations of animals within a single state under the Commerce Clause and a second article about how the Act was completely constitutional under the Commerce Clause when applied to similar populations of animals.  Then he or she sent the articles off to different sets of law reviews and accepted publication offers for both of the articles.  The articles then came out at roughly the same time.  The articles made no reference to each other.  Would you think the author had acted unethically?  Would you think less of the author?  The arguments?  Why or why not?  (note: I don't plan on doing this myself, but I am thinking about having a character in a piece of fiction do it, and I just wonder what people in the academy and elsewhere would say about it).

On an entirely different note, I have a piece up at the Beacon Press blog Beacon Broadside about how I hate it when people send holiday cards with pictures of their kids on them but no pictures of themselves.  The original title was: "I Know Your Kids are Cute, But What Do You Look Like?"

Where's the "Zazz?"

I enjoyed Dave's post immensely, even if I'm not sure I've ever heard the word "zazz" before.  I would note that Dave doesn't distinguish too much between legal writing that has operative force in the real world, such as a court's order, and legal advocacy, such as a brief, and legal scholarship.  He notes the distinction, but I would make more of it.  There are reasonable limits to the degree to which writing in category one should engage in too much free-wheeling humor, particularly humor directed at the parties; although, as he notes, judges like Posner and Kozinski, who are already skilled writers, manage to add a good deal of liveliness to their writing without generally crossing the line.  Those judges show that you can write perfectly seriously without writing pompously -- that there's a difference between having real substance and putting on a show of having gravitas.

But Dave's argument that good humor has to be "not terribly serious," while "law is, at its core, a pretty serious endeavor," strikes me as incorrect on both sides of the equation.  While there is plenty of good light and absurd humor, it strikes me that great humor (and, in fairness, maybe there's a difference between good humor and great humor) should be very serious indeed, in the sense that it should strike at the heart of our own worst and weakest moments and those of others, and flirt with some very serious lines -- not for the sake of being "transgressive," and certainly not because doing so is conducive to social change, or any such rot, but because that's where the best humor lies. 

Contrariwise, I am not sure I agree with the proposition that law in general, at least if you're talking about academic legal writing, is an especially serious endeavor.  Is it, really?  Even if it were, that has nothing do do with what kind of wit you can bring to the enterprise.  It's possible to take an enterprise perfectly seriously, invest all your heart and all your intellectual rigor in it, and still wear your work, and your sense of self, lightly.  Indeed, if you love your work and take joy in it, I should think it would often be shot through with a sense of gentleness, grace, and bemusement -- not least self-bemusement. 

 

 

Of course, that doesn't excuse sloppy, boring, or out-of-touch pop culture references or bad jokes; maybe it's thus safer to be "weighty" than light. But I tend to think of the absence of genuine lightness and humor in legal academic writing as one more symptom of the legal academy's endless crisis of authority (maybe the human condition's endless crisis of authority; I'm not sure, but I'll start with a narrower sample just to be safe). Writing with an intentional air of gravity isn't that different from using unnecessary big words in a manuscript, or making the manuscript look all fancy and law review-ish, or making extravagant claims about the novelty of your work, or using fancy letterhead, or acting as if you know more than you do, or insisting on being called "Doctor" even though you're a mere academic (although I trust that no law professors indulge in that particular petty sin). It's just one more means of asserting, claiming, or pretending to authority in an environment in which the criteria for substantive evaluation or so contested, and the judges of those criteria often so unqualified, that one may be better off, and get further, by looking "authoritative" than by merely making good arguments. That's true both in the sense that you may get more validation from others by acting "serious," and in the sense that you may feel better about yourself if you can convince yourself that you are a "serious" person engaged in "serious" work.

Is and Ought's Excellent Adventure (Part 2): Kent Greenfield on Mukasey's BC Speech

A couple weeks ago, Kent Greenfield (Boston College, left) asked me to link his Huffington Post op-ed on Attorney General Michael Mukasey's commencement address at Boston College this year.  At the risk of inviting another "train wreck" - Rick's posts are the gift that keeps giving - it turns out that the gist of Kent's observation merits being included as Part 2 in this series.

Here's Kent's comment:

[The Attorney General] urged our graduates to learn to filter out their own moral and political views when they "do law," so they can "advise clients that the law permits them to take actions that you may find imprudent, or even wrong."

So the message of the Attorney General of the United States to the law graduates of today: be a technocrat. Once the law is articulated, your job is done.

Mukasey does a disservice when he implies that the law is a simple, straightforward, technical enterprise. Of course there are easy legal questions (which include, by the way, that waterboarding is torture). But as our students learn in the first week of law school, the most important questions are unlikely to have answers that spring fully formed from some text. What good lawyering requires is not just a mining of a range of authorities to determine the best reading of various texts (though even this bare minimum was apparently not done in the authoring of the torture memo). Also necessary is an honest acknowledgment that when gaps are to be filled, there is no neutral way to fill them that avoids the need for political, philosophical, or moral justification.

Once again, "is" butts up against "ought."The interesting twist here is that not to decide is to decide.  By acting, in Kent's words, as a technocrat, one effectively concludes that whatever "is" is, it's the same as "ought.  What follows the jump is far less down-to-earth than before, and like Rick, I welcome anybody who wants to check it for philosophical malpractice.

Let's return to recitation of the Hume dictum for a minute.  Hume's concern was not only a reading of the "is" into the "ought," but the other way around:  suggesting something was an empirical fact when it was simply the speaker's reasoned derivation, rather than observation in experience, of what ought to be. 

As moral good and evil belong only to the actions of the mind, and are deriv'd from our situation with regard to external objects, the relations, from which these moral distinctions arise, must lie only betwixt internal actions, and external objects, and must not be applicable either to internal actions, compared among themselves, or to external objects, when placed in opposition to other external objects.

Indeed, in Hume's view, not only is there no reasoned moral connection between external events, "there is no connexion of cause and effect, such as this is suppos'd to be, which is discoverable otherwise than by experience, and of which we can pretend to have any security by the simple consideration of the objects."

Kant reacted to Hume by claiming there was a priori synthetic truth, like causation, beyond mere experience, and that reason was capable of deriving moral imperatives, and particularly categorical imperatives, that were universal.  Those are "ought," not "is" statements, and they are not assertions of truth or falsity about objects.  Hume, on the other hand, rejected the notion that reason could derive moral ends (remember, it's just slave to the passions).  So he was making the point that whatever the source of the "ought" might be (to him, custom, not reason), it certainly did not constitute empirical fact.

The problem with Hume leads, in my mind, to Mukasey's thesis.  Hume makes it clear saying "it ought to be so" doesn't make it so.  He leaves us, however, wandering on the source of the "ought."  So the question is whether enough information about the "is" will lead us to the "ought."  Mukasey's approach, for lawyers at least, is to punt.  Don't worry about the "ought;" tell your clients what the law is (if that's possible, to Kent's point), and let them make the decision.  Personally, I'd never hire a lawyer to advise business clients who took that approach, but that's another matter.

I'm an old veteran of the data-intuition wars within the corporation.  After years of command-and-control, the quality movement had the insight that many decisions were not based on data, but on corporate executives' intuition, much of which proved to be wrong.  So the pendulum swung mightily between the mid-1980s and the turn of the millennium from what we might call corporate rationalism (making decisions on logic and reason) to corporate empiricism (making decisions based on fact).  (Whether that "fact" is really fact - Hilary Putnam's critique of the fact/value distinction which Rick refers to in the most recent post - will be the subject of Part III.)   I can remember many meetings with the Six Sigma and "operational excellence" gurus, and my suggesting to them that collecting data was all goodness, but inevitably we would get to a point where the question what we ought to do would again require a leap from what we established as the inductive rule within the data to a choice of action.

My friend and co-blogger Bill Henderson and I had an interesting public (albeit buried) exchange on this point a few weeks ago.  Bill found a talk given by Charles Munger (founder of the Munger, Tolles law firm and Vice Chairman of Berkshire Hathaway) entitled "The Causes of Human Misjudgment."  The substance was a summary of behavioral economic insights (notably those of Kahneman and Tversky) into what we might call "cognitive error."  True to his open-mindedness and hunger to learn, Bill said that he was interested in applied behavioral economics as a means of "honing [his] own decisionmaking processes to eliminate bias and susceptibility to manipulation."

It's a noble end, but I sounded a word of  caution in thinking that the process of understanding the empirical fact of one's biases would lead to better decisions.  It is far easier to do an assessment of somebody else's tendencies than your own. The problem, of course, in assessing your own bias and behavioral tendencies is the infinitive regress as well as the self-recursiveness of the exercise. In short, you assess your own behavior, and decide you have the tendency, and correct it. But was your assessment affected by the tendency (or another one)? And was your assessment of the assessment so affected? And so on.

The empirical dream is to unite "is" and "ought" with a complete understanding of the "is."  Kant didn't think that was possible.  Your reason wants to follow the infinite regress to the infinite end, and to see the world objectively. It is unrestrained by the empirical world. So reason is capable of positing (or playing) God - that Being that can be both subjective and wholly objective at the same time.

In short, Mukasey's view is unsatisfying to those of us who care about the "ought" beyond the positive law, because it simply leaves out any job for the lawyer other than, as Kent says, the technical job of relating what the law is or might be.  But it's equally illusory to think that merely a better understanding of the law, or indeed, any set of empirical data of the law is going to overcome the objective-subjective divide, and tell us how to choose among alternative actions.  The inspiring thing about Bill's vision (in contradistinction to Mukasey's) lies in a slight corruption of Robert Louis Stevenson's dictum that it is better to travel hopefully than to arrive. In this regard, it is impossible to arrive on data alone, but it's no reason not to travel hopefully nevertheless.

An Update From Professor Steve Gey

The other day Paul wrote about the West Virginia Law Review's moving tribute and issue in honor of my colleague, the con law scholar Steve Gey, who has sadly been living with Lou Gehrig's disease (ALS) for the last year.  Some of you remember my blogging about a a group of FSU law students, alumni, faculty and staff who have been busy this spring securing sponsorships and training for a triathlon (the "Tri-for-Gey") to raise funds for ALS research.  (My wife Wendi has raised over $4400. Please consider donating generously in Steve's honor to her efforts here.)

Many people are wondering: How exactly is Professor Gey doing anyway?

The answer, which Steve has penned in his inimitable way for the legions of students and colleagues inquiring, appears with his permission below the fold. Let me give you notice that while Steve's answer to this question is at times humorous, the news is difficult to read.
 

Since I was diagnosed with ALS a little over a year ago, I have been the grateful
recipient of hundreds, if not thousands of expressions of goodwill from friends,
colleagues, former colleagues, and especially present and former students.
Unfortunately, I have not had the opportunity to respond personally to most of these
messages. I'm afraid my little disease has affected my efficiency more than I would ever
have imagined. I know that you all think that I speak too quickly, but I'm finding that my
voice-recognition software doesn't even come close to keeping up with my old typing
skills. Thus, your messages have been piling up, unanswered. It's getting downright
embarrassing. So when our fearless leader Kristina [Klein, FSU alum] suggested that I compose a short update to send to everyone on the growing Tri-for-Gey mailing list, it seemed like the
perfect opportunity to at least let you all know as a group how things are going. This
does not, by the way, substitute for the personal responses that I still intend to send to
everyone who has sent me messages during the last year. At the moment I'm still trying
to teach, and that pretty much takes all of my time and energy. One day soon, though, the
voice will finally fail and I will have lots of time on my hands. At that point I promise to
return to the stack of e-mails, cards, and letters. Until then. . . .

I suppose we should get the bad news out of the way first. For the first few
months after the diagnosis, I was able to more or less convince myself that I had
everything under control. My hands and arms slowly deteriorated, and I relinquished any
hope of winning a marathon, but in the early months I managed to work around these
minor disabilities and kept going pretty much at my usual pace. Things started to get
worse in the early fall of last year, especially when I lost the ability to drive.
Nevertheless, once I got used to riding with the dogs in the back of [FSU Prof] Rob Atkinson's truck,
even that loss became manageable. In the last two months, however, things have started
going downhill much more precipitously. The disease has now migrated from my arms
and hands into my lungs and throat. Swallowing is getting difficult, and breathing even
more so. On my last pulmonology exam, some of the functions of my lungs are down to
about 25% of normal. The breathing problems have also affected my voice. Although I
do not yet have the slurred speech that is common once ALS creeps into the bulbar
region, my voice is now almost always hoarse, shallow, and muted. The disease is
accomplishing what none of you could: it may soon actually shut me up. On top of
everything else, my hands and arms have now become almost totally worthless. Not only
do the students have to carry my books to class, they also have to turn the pages for me. I
can no longer shower or dress myself, and feeding myself is a comedy routine. I'm the
only person in the world who can have a food fight with himself. Here's the clincher:
over the last month I've lost 10 pounds, which makes my total weight loss during the last
year approximately 30 pounds. I've never exactly been plump, but if this keeps up I
won't get the chance to die, because I will just float away.

So enough of that. Now the good news. First, I'm still here. I know that won't
sound like much of a victory to most of you, but to me it's a roaring success when I read
the obituaries in the morning and I'm not in there. Also, I'm still teaching. In fact, right
now I'm teaching a full load, and I've had the Dean put me on the list to teach at least one
class next year. Hope springs eternal. I've also done my usual bunch of speeches and
symposiums in various cities this year, although I'm afraid that's over now. Traveling is
just too hard, so I'm just going to have to learn to enjoy the wonders of Tallahassee.
Where is the medical marijuana when you need it? I'm also still writing quite a lot, and
could write a lot more if I could just figure out how to teach my voice-activated software
to type "Justice Scalia" instead of "Justice Oh My Silly." (On the other hand, maybe the
software is smarter than I’m willing to acknowledge.) And finally, I'm still walking, even
if I am a little shaky. So maybe in several respects I have already beaten the odds.

The basic plan now is the same as it was a year ago: figure out how to deal with
an ever-diminishing number of body parts, until some doctor trips over a cure to ALS
while trying to develop a new and improved version of Rogaine. There have been brief
moments of hope on the medical front during the last year. Indeed, last month I applied
to get into a Phase IIb clinical trial of a drug called Arimoclomol. The company
developing the drug has had great success in the earlier phases of clinical trials, and one
of my legions of doctors expressed the opinion that this is the most excited that she had
been about an ALS drug in many years. In what has become a typical pattern, one month
into the enrollment period for the clinical trial, the FDA pulled the plug on the trial until
the company can submit additional animal toxicity studies to back up its claims about the
drug's safety. One step forward, two steps back. No other drugs are even close to being
approved for ALS, and of course major-league federally funded stem cell research will be
stymied for another year until you-know-who leaves office. In any event, my doctors at
Emory told me this week that my vitals are below the level necessary to get into the
Arimoclomol trial, anyway.

Right now, the doctors are focusing on trying to get weight on my bones and
trying to get more oxygen into my lungs. So I've been told to eat everything in sight, and
the doctors have prescribed for me a new breathing machine. They have also put me on
Rilutek, which is currently the only drug approved by the FDA for ALS patients. The
drug basically extends life a couple of months by decreasing the release of glutamate and
thereby reducing the damage to motor neurons. The doctors are also going to put me on
lithium, of all things. Just last week, my buddies at the National Academy of Sciences
published in this month's Proceedings a small Italian study indicating that lithium
completely halted the progression of ALS in a group of 16 patients in hospital near Pisa.
It's probably too good to be true, but maybe the lithium will at least make me a little bit
less crazy (!). I should add, though, that overall my doctors are not optimistic. They
have suggested that I consider whether I want to go on a ventilator as my lungs continue
to deteriorate, and also that I begin to think about whether I want to go into hospice. I
don't want to bum everybody out, but you should all be aware that there is at least an
outside possibility that this is my last Tri-for-Gey.

All in all, like the other unlucky souls who have been dealt the ALS card, the only
thing I really have going for me is blind faith, which is another way of describing
unrelenting, irrational stubbornness. If viewed objectively, given my deterioration during
the last year, it's probably safe to say that I'm on track to fulfill the usual prognosis for all
ALS patients, which basically gives me the life expectancy of a hummingbird. I've just
decided to act as if that's not the reality, and I'm happy to say that all of you are helping
me perpetuate my self-delusion. If you crazy people are still willing to get up at the crack
of dawn and jump in a frigid lake, and then run and ride yourselves silly, then I may as
well try to stick around to see what you all look like in wetsuits. So hang in there during
your relentless training. I'm with you in spirit. If we play our cards right, and get a little
lucky, you will all reach your finish line in little over a month, and I won't reach my
finish line for many, many years.

The writing is on the wall

Despite my appreciation for the merits of both candidates for the Dems, my sense is that Obama will win, and win handily, tomorrow and later in November. Here's why. Rick, how can McCain, who admittedly is the best Republican the Dems could hope for in a non-cynical world, compete against this dynamism?

Occasions of learning

I teach English; which is to say, I help students work toward answers while trying to avoid asking the questions. 

I'm interested this month, as a guest blogger, in asking whether the Socratic mode of legal education helps or hurts budding lawyers, morally speaking.  So I'll be writing about pedagogy, but at the same time I'll be writing about pedantry:  the attitude that encourages litigators, emulating their professors, to ask only questions to which they already know the answers, and to insist upon the completeness and precision of answers rather than the process of answering.

This line of discussion isn't meant to be an advocacy of mediation, or 'encounter sessions,' or any such nonsense; nor is it even to push for the value of Truth and Reconciliation Commissions (though I think that's what the DOJ is going to need).  I think there's no doubt that the antagonistic and highly mannered airing of evidence and testimony -- which is to say, courtroom drama -- works much better than any known alternatives as a way of handling disputes and civilizing the task of getting to an outcome when viewpoints diverge widely. 

But surely, it seems to me, part of the deliberative excellence of the courtroom scenario is in precisely what is missing from the law-school classroom:  the presence of the jury.  They are present and paying close attention, not just for the answering of questions but also for the asking.  What does it take to give that answer? the jury asks about each witness response; but also, What does it take to ask that question?  What moral posture is being occupied by the cross-examining lawyer?  Like the audience in other kinds of drama, the jury has the power to decide how it feels not just about what is said but also about how it is elicited.

I've been teaching at Phillips Exeter Academy, and every table here has exactly twelve kids.  No one is the foreman.   And the pedagogy centers on the belief that students' social identity is their best motive for learning.  Teachers are urged not to set the agenda:  this ethos puts the students in charge of their own time, which they can collectively waste or make fruitful.  Happily, the culture has evolved a long way:  there is nothing cool here about being unprepared for class.  There are a few 'gunners,' but most kids come into the room with some questions about the text and the willingness to listen.  They react to each other not as debaters but as social individuals -- the girl always out of dress code, the guy who affects a garish tie over a Hawaiian golf shirt every day, the Gay-Straight Alliance president, the linebacker, the lone Republican, the girl who laughs a lot and has ideas but never quotes the text.  Credibility is constantly in flux, and disagreement is rarely the mode of progress.

Is this transposition of social life into the intellectual sphere much different from the jury system -- with its implicit belief that jurors' social instincts are their best guidelines as to what the law requires them to conclude?  Why else do we as a society care that jurors should be a defendant's PEERS?

In passing, in this first brief post, let me note how different the juror's moral posture is from that of the law professor.  The juror wants to know how to decide among the parties; her choice is among people.  The professor wants to develop the most fruitful lines of questioning; her choice is among vectors.  Improvising, grabbing hold of that which is most suggestive or most contentious, swinging from thought to thought and then to an opposite thought, the professor blazes a new trail through familiar terrain for each group of students; it is exhilarating work, Tarzan stuff.  But here at the Academy I've been taught (for example, by the great seminar teacher Nita Pettigrew) that in wielding even the smallest machete the teacher sets herself apart and adds extra meanings.  To blaze the trail, even when others seem to choosing at each decision point, is to claim a very certain kind of power.

Of this power one should be very wary, and ambivalent.  On the one hand, there is no doubt that to ask the questions is to control the situation; hence the term 'examination,' used both in court and in class.  At the same time, though, Kierkegaard said that "the ultimate idea in all questioning is that the person asked must himself possess the truth and acquire it by himself."  Hence the law professor is by turns the bully and the naive Columbo-figure. "Let me just mention one more thing," he says, and the student finds a light bulb in her head she didn't know was plugged in.

I'll never forget a certain session of a class in 'higher-ed and the law,' at a time when I was considering a career in administration.  The question at hand was whether a student with a heart condition should be allowed to play varsity basketball, fully aware of and accepting his three percent chance of dying on the court in the next four years.  I was the only one who said Yes, and the professor, the Harvard General Counsel, asked me slyly, with an innocent tone, "And then what is learned by the fifteen thousand students in the stands on the night that he is carried off with a sheet over his face?"

There was no opportunity for me to answer this question in a thoughtful way; it carried its own answer.  But in such rhetorical questions, of the kind that litigators master, there is an extraordinary assumption:  the professor says, You are learning the law.  But I am not telling you anything you don't already know.  Your moral intuitions are the main point, and in learning the law you learn to answer the questions the world puts to you, in your own way.

I am still not sure that those fifteen thousand kids wouldn't learn something beautiful on that occasion.  The fifty of us, that night at the Ed School, learned something useful, but it's a lesson I think I'd rather forget.

Before I sign off on day one, then, two examples.  One:  a postadolescent of whom I once read was badly injured, allegedly, by her boyfriend on a spring-break trip.  As she emerged from anesthesia in a strange town she encountered his lawyer, who asked, Do you want him to go to jail?  The answer of course, was no, and she signed an affidavit exonerating him.   It was several weeks before she came to terms with the fact that she was scared of him.  Two:   the teacher asks at the English table, What is at issue in this debate Frank and Jane are having?  Are they really disagreeing?  And someone answers, They're just arguing about which gender is better than the other.  The conversation is fully derailed -- but it goes to surprising places.

These are two different models of learning:  one, the well-paid lawyer's; the other, the schoolteacher's.  Think Arnie Becker and Ichabod Crane.  Which one gets to the bottom of things?  I propose to keep asking that question in various ways this month, and hope that in doing so I'm not too obviously biased toward societal (superficial) rather than professional (esoteric) values.

Prof. Markel and I used to live in a community whose motto was Occasionem Cognosce:  Know the occasion.  In the seal, a fist grabs a handful of arrows, and the implication is clear.  Seize the day.  To know is to do.  And surely that is for the cognoscenti.  But there are other kinds of knowing, less Platonically gnostic and more paradoxical, and I wonder if we couldn't use a little Kierkegaard to nudge us away, just a smidge, from the Socratic -- and toward a different kind of faith, more passive but more patient, in collective modes of understanding.

I'm reminded here of a game I play in class sometimes, in which each kid has to take on a certain role -- the Interrupter, the Disagreer, the Swerver.  There's always one kid who is instructed to finish every comment by trailing off into the sentence, "I don't know -- does that make any sense?"  No one ever notices this tic, and even the boldest kids are able to fit it in nonchalantly, as if negating their comment is a perfectly legitimate way to conclude it.  I'm barely resisting the temptation here to ask whether the above makes any sense, and will successfully resist it only by pointing out that if I asked that question I would only be fishing for compliments or encouragement, and not really acknowledging how complex are the issues I am raising.

Jim von der Heydt

On Civic Slacking

I watched part of yesterday's Democratic debate and, somewhat like Wes, I came away thinking that the time I spent watching was lost forever, and for no purpose.  But hey, it's led to a blog post.

It got me thinking more broadly about the duties we are supposed to face as part of a republic, and how much I sympathize with the people who want none of it.  My experience has been that since grade school we're been taught by social-studies teachers and similar goody-two-shoes types that it's virtuous to read the newspapers and generally to be informed about world affairs, vote, debate public issues, and watch candidates.

Bah, humbug!  I can't imagine anyone taking any useful information out of that debate (at least the part I saw), just as I find it difficult to take useful information from campaign commercials.  Voting, of course, provides virtually no benefit to the voter except the psychological one resulting, in my estimation, from the years we've been told that voting is a virtuous thing.  And for the most part a single person whose job is unconnected to public affairs is unlikely to achieve anything by becoming politically aware.  Why not focus one's family and career?

So hurray for the civic slacker.  Ethan is sure to disagree, I know, but I can't blame the person who watches soap operas instead of listening to politicians take 90 minutes to say nothing.  Or was yesterday just a particularly bad example?

The New Formalism Panel

It was a treat merely to be on a roundtable panel with Larry Solum, Randy Barnett, Ekow Yankah, and our moderator, Dennis Patterson, as I've mentioned, to discuss the new formalism.

Larry kicked off with a short summary of what the new formalism was and was not.  Randy followed with a discussion why he began as a contextualist, and, like Jack Balkin, had come to view himself as adopting a "new formalism" (though he was careful to state that it was not how he defined himself - I paraphrase roughly "I don't think I've ever though of myself as 'a new formalist'").  I followed with a discussion of the neo-formalism that Schwartz and Scott adopted in the private law of business contract interpretation, and Ekow closed the panelists' short summaries with a critique of formalism as giving undue weight to the written text, particularly in view of segments of society who may have no ability to influence the drafting of the text.  We then proceed to about an hour of vigorous discussion in which the not-overwhelming-but-not-too-shabby-for-a-panel-in-the-second -to-last-time-slot-on-the-last-day audience participated, moderated pugnaciously by Dennis Patterson.

This was constitutional high theory at its finest, and nobody asked a question or made a comment about textualism or contextualism in contract law.  In fact, about five minutes into the questions, I passed Larry a note saying I would give him $100 if there were a question about my segment, and I never once even came close to worrying about taking out my wallet.

Hmm.  If somebody had, was my promise to Larry enforceable?

Anyway, I've decided to post a redacted form of my comments below the fold.

Here are the comments:

My jumping off point about new formalism is a comment Larry Solum made in the earlier session on Brian Tamanaha’s Law as Means to an End.

We grapple with an antinomy between a sense of permanence or immanence or determinacy in the legal rules by which our social relationships are regulated or constituted, on one hand, and our manipulation of those rules to achieve individual purposes on the other – in a word, instrumentalism. 

In its broadest jurisprudential articulation, this immanence shows up as “justice” or “the rule of law.” The intellectual history of formalism is well-known – the systematic, self-contained, scientific, axiomatic, purportedly deductive textualism of Langdell and Williston gives rise to realism, and its contrasting contextualism.   I think Willistonian formalism in contract law was intended to achieve an immanent norm – that being what my European sociology friends would call juridical justice, or the treatment of like cases alike.   And a student of Luhmann would note the systemic paradox.   Each opposing parties within the system argues to the adjudicator that its view, and its view alone, serves the interest of justice, here being consistency with prior case law.   It is like each side in a football game, or in war, invoking God on its side.

So we would begin by noting the strong explanatory power of realism or contextualism.   Private law does NOT pose the antinomy of an immanent normative order with instrumentalism toward our individual purposes, because in the ex post resolution of conflict between private parties, all is instrumental.   The issue is merely whether we will be textual or contextual in our instrumentalism.

But there is a new formalism proposed for contract law, and my claim is that it is really a sign of the persistence of teleology, of the imputation of purposiveness in nature and in the analysis of social systems. In their 2003 Yale Law Journal article "Contract Theory and the Limits of Contract Law,” Alan Schwartz and Robert Scott made the argument, at least for business contracts, that business parties would choose Willistonian formalism over UCC-style contextualism as the mode of contract interpretation.   The argument builds from the usual normative assumption that society is better off with legal rules that maximize efficiency in economic terms – all other things being equal (and they always are), more surplus is better than less surplus, regardless how the parties divide it up.   In the long run, interpretive mistakes even out, using plain meaning is cheaper, so parties would prefer plain meaning interpretation on the assumption that courts get it right most of the time. This move is not surprising, given its grounding in the social science of economics, and the aspiration of social science to uncover and explain causal relationships in social science with rigor analogous to that found in the physical sciences. 

But it seems to me we have the old antinomy now in a different expression, and once again it arises from the opposition of subjective interest and objective norms.   For in Schwartz and Scott, there are objective norms.   The key conflation of the subjective and the objective occurs quickly, implicitly, and effectively because it makes the fundamental assumption that “there is a correct answer” – this being the mutual intention of the parties and it is the court’s obligation to find it.   And I suggest “the mutual intention of the parties” is to contract law what “the rule of law” or “justice” is to law generally.    Say that to a contract lawyer, we nod our heads “uh huh,” and move on.    Schwartz and Scott assume that the parties' interest is in maximizing total surplus from the transaction which they will then divide by setting the price.   Setting the price is just "strategic behavior" and merits no discussion.  I have negotiated lots of deals, and I can't remember ever thinking about total surplus at all, much less first.   But if I had a choice between a smaller total surplus and grabbing more (in absolute terms) of a smaller surplus, I know where I would go.

It seems to me the world works from the first-person not the third-person perspective.    Only economists and lawyers think they can step out of themselves and see the world objectively, and folk wisdom ("the lawyer who represents herself has a fool for a client") suggests that it is a mistake even for lawyers.

I propose a different antinomy, not formalism versus instrumentalism, but in some borrowed terms, between aboutness and thingness.    I go back to my earlier characterization of “the rules by which our social relationships are regulated or constituted” and offer these comments and questions:

• Instead of focusing merely on rule-following (Fred Schauer’s work), we focus on the distinction between aboutness and thingness of regulative and constitutive rules.

• We ask, on one hand, whether the contract is a reflection or shadow of the transaction, a regulation of the transaction; in short, about the transaction.

• We ask, on the other hand, whether the contract is constitutive of the transaction.  Is the contract a thing in itself?

• And now we call upon a distinction in debates over the philosophy of social science – that being causal explanation versus understanding, or the exercise of hermeneutics.

• We can uncover and explain things.  This bespeaks:

      - Casual explanations
      - Algorithmic functions
      - Mathematical models
      - Laws (of nature, not the sovereign)

Whether you are a Langdellian scientist or a practitioner of the dismal science, it is hardly a leap to attribute thingness in your role as an objective third party observer of the object of study.

And things inhere in the order of nature.    It is the teleology that underlies science.   But it is not a given that the application of scientific method to ourselves works, any more than the ascription of surplus maximizing in individual cases, simply because overall it is a useful model in the aggregate. We are subjects within a system, considering ourselves.  And the alternative view of social science is not that we look for causal laws, but that we understand or make sense of our place in the world.   This is “hermeneutics.”  I contend this is what the parties are doing when they make the contract – they understand, they make sense – the contract is about their relationship.    The purposes are those of the parties, and may or may not align to form an immanent “mutual intention.”  The objectivity inherent in ex post litigation yields thingness, formalism, purposiveness in the contract itself.    We search for that immanent “correct answer” of mutual intention, even though, as I have written, mutual intention is most often an illusion.

I conclude by noting Tom Grey’s ultimate conclusion about “the new formalism”:    it is far more pragmatic than its most strident proponents would let on.    I contend that Judge Posner, a theorist who nevertheless must decide cases, foregoes contracts as things in favor of a common sense pragmatism (whether or not it is well-informed) that is ultimately hermeneutic and not scientific.  Why?    Perhaps because the nature of an antinomy is that it cannot be resolved.

Homeless

There is a multi-session program on Niklas Luhmann taking place here in Berlin during the Law & Society meeting.  Yesterday afternoon I attended a roundtable that was one of the later segments.   Glancing around the room, surreptitiously checking out name tags, and listening to accents during the Q&A, it was pretty clear I was one of the few Americans, if not the only one, in the room.

Here's some half-assed speculation on intellectual history.  Over the last hundred years, Dewey, Holmes, pragmatism, legal realism, critical legal studies, and law and economics sucked all the air out of the room, so to speak, when it came to reacting to a rationalist or quasi-rationalist foundationalism on our side of the Atlantic.  Luhmann is also a reaction to rationalism, but with a distinctly European acceptance of paradox.  Which raises the question:  if you are an American and somewhat obsessed by paradox in all its forms, are you homeless?

More below the fold.

First, a plug for the presenters, Hans-Georg Moeller, author of Luhmann Explained:  From Soul to Systems, and Michael King and Chris Thornhill, co-authors of Niklas Luhmann's Theory of Politics and Law.

Michael's contribution to the roundtable was subtitled "Why Academic Lawyers Shouldn't Read Luhmann," which was understandable after Hans-Georg's discussion of Luhmann's take on the fundamental paradox of justice.  Justice is a "contingency formula."  What that means is that within a system like law, justice serves as a foundational value, even though justice is incapable of directing a particular legal result in any particular case.  From outside the system, an observer would say that justice is in fact highly contingent, but the internal system would collapse if the actors came to believe that it was not.  This is in fact another way of looking at the antinomy of formalism and instrumentalism Larry Solum highlighted in an earlier session on Brian Tamanaha's Law as Means to an End.  Or, as I suggested in a comment at the end of the Luhmann session, the paradox in real world litigation is that each party invokes justice as argument in service of instrumental goals, as though God could really be on each side in a football game (or a war).  Within the autopoietic (or closed or self-referential) system of law, justice appears as consistency among like cases, not necessarily congruence with fundamental human, moral, or religious values.

So, says Michael, Luhmann is anathema to academic lawyers of all stripes.  To those focusing purely on doctrine, Luhmann would be saying:  "Your search for consistency within the system is ultimately futile.  You believe you can operate within the system to improve it, but that is merely an illusion required to allow your system to continue qua system.  All you are really doing is restating the foundational principle of justice (or whatever) in another way."  To the "morality police" concerned with assuring that legal justice equates with moral justice, the connection (in the traditional of legal positivism) does not exist.  What you see are fundamental is a contingency formula by which what you think is fixed is really contingent.  And to "law and..." scholars who believe they stand outside the system and assess it objectively, you may not recognize the paradoxical nature of your own position.

To return to Larry's articulation of the formalism-instrumentalism antinomy, were I a Luhmannite (and perhaps I am), I would interpret this last in the following way.  We encounter the paradox as an empirical matter.  As legal philosophers who have become conscious of the paradox, we have three choices.  One, we can engage the paradox even if it is incapable of resolution.  (This is what I think Luhmann does.  And that appeals to my Kantian proclivities).  Two, we can make the conscious decision to ignore the metaphysics of the paradox.  That means we are either pragmatists or virtue theorists.  Or three, we can try to resolve the paradox by adopting some form of normative or theoretical foundation with which law must accord (and here, ironically, we can place Charles Fried on contract as promise, law and economics generally, and Dworkin).  Or we can take some combination of the three (for example, Richard Posner, who combines choices two and three).

But, I wonder, is someone operating in the American intellectual tradition, but who opts for choice one, homeless?

The Arena

With some acknowledgment of the gender references that are part of its time, and on the eve of many people leaving to present their ideas at the LSA meeting in Berlin, I offer this famous quote from Theodore Roosevelt's April 23, 1910 speech at the Sorbonne:

It is not the critic who counts, nor the man who points how the strong man stumbled or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena; whose face is marred by dust and sweat and blood; who strives valiantly...who knows the great enthusiasms, the great devotions, and spends himself in a worthy cause; who, at best, knows the triumph of high achievement; and who, at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who know neither victory nor defeat.

Apart from the message, what a wonderful way of aligning alliteration, of putting particular parallelisms precisely, with a creative cadence as the consequence.  Onward onomatopoeia!

The Place of Artists' Endeavors in a University

One of the unexpected joys of service to the university is that I get to attend meetings of the "XYZ" committee, which addresses various issues of significance to quality and governance standards across the university. Recently, a particularly fascinating question arose, but I'll leave the names of the players out, since I'm more interested in thinking about this issue in the abstract and seeing where the different arguments go.

Here's the question: should graduate students in a research university get to sequester or limit access to their dissertations so they can privately reap the benefits of future publication with a for-profit publisher? Those of you enjoying the discussion Bruce led last week regarding SwapNotes might want to weigh in.

In the sciences context, my sense is that issues over patents are worked out ex ante through contract and universities are obligated to share the fruits of research especially when such research is funded with public money. Thus, graduate students working in university labs probably have to share patents' revenue with the university but practices may vary by agreement. In the social sciences and humanities, professors tend to enjoy the "teacher" exception to copyright's work for hire doctrine that Bruce and Michael Froomkin talk about in the comments to Bruce's post. My sense is that such an exception enjoys an uncertain status in law today, but that express contracts between faculty and universities would govern the issue, and that copyright for those works is not a property right invariably enjoyed by faculty, though in the absence of an asserted right by the university, it probably belongs to the professors. (I checked with Bruce and his sense was that as a matter of practice copyright tends to belong to the professors, but the law was a bit unclear. There may be an implied license for the university in the absence of a contractual provision to the contrary.)

So what's the deal with graduate (or less relevantly, undergraduate) students? The tough issue arises when universities say: we want a digital copy of that dissertation so the fruits of your state-subsidized research can be shared with the world. In that situation, the university might be impinging on the ability of graduate students to sign contracts with commercial publishers, who want exclusive distribution rights and would view the publication of a novel to be pretty worthless as an investment if it's substantially available online via google and a library's electronic database.

Thinking this through: Graduate students might not enjoy the "teacher exemption" to the work for hire doctrine if graduate students are paid employees of the university because they are not yet full-fledged "teachers." On the other hand, unlike professors, grad students are often paid principally to teach, not to research. This is pretty tricky, since it would suggest that grad students should then benefit from a "teacher" exception...

My sense is that in the absence of a contractual provision to the contrary, students will own the copyright in their works, even if they are also employed by the university or if they are producing such a work for credit.
In most cases graduate students have not signed away their copyright interests to the school, though I wouldn't be surprised if public universities (and for the purpose of this post I'm interested only in public universities) do give notice to graduate students that a dissertation must be archived at the university's library. If they do give such notice, that might create an implied license and the question is what is the scope of that license, and what ought it to be? Depending on the context, students might have already agreed to that in the particular context of university handbooks that tell students they must lodge copies of their work with the library for purpose of graduation.

The concern raised above about publishers seeking more rights is especially salient for students graduating with advanced degrees from creative arts programs, where their dissertation actually is the production of creative writing, music, or art. One major concern of imposing a library's right to reproduce the dissertation electronically is a collective action issue: if one school insists that the library of that school creates and makes available a digital file of poetry or a novel, then students will go to schools where that requirement doesn't exist. Unless all the creative arts programs abided by the same rule, students would be drawn to places where they can ply their craft in subsidized domains but then reap all the private benefits.

Why might universities seek such digital reproduction rights? Perhaps out of fidelity to the idea that if the state's taxpayers are subsidizing the research, they and the scholarly community should enjoy (free? easy? immediate?) access to that research when submitted as part of a PhD or Master's degree. Of course, in the case of students in the performing or creative arts, the dissertations are not exactly "research." Thus, to save the creative arts students from this otherwise plausibly reasonable practice of promulgating knowledge, one might try (however perilously and controversially) to distinguish between departments whose dissertations are "knowledge" and those whose departments are not in the business of producing conventional knowledge, but rather "arts." Thus, English PhD's about Shakespeare would be promulgated, but if Shakespeare himself is in your creative writing department, then he can sequester his dissertation until it's been published. The downside of such a rule is that it also hurts those budding Shakespeare scholars trying to get Norton or FSG (or HUP/CUP/OUP) to publish their books too. Is this distinction tenable? Desirable? If it is both tenable and desirable, does it say anything about what universities should be in the business of cultivating or producing?

Finally, here's a possible problem: if public universities don't assert any dissemination norms beyond lodging a paper copy of the dissertation with the university library, what rights or interests can/ought the taxpayers assert if Billy Shakespeare decides to burn his dissertation, after lodging his one paper copy in the archive of the library? Do the taxpayers have any legitimate interests then? Or is it too bad, so sad? Maybe Lior will weigh in...

Much of this back and forth can be resolved, I suspect, if there are clear expectations enunciated at the outset by the university. My own sense, probably, is that if the university didn't articulate its interests clearly, then at least in the interim silence, the students should be able to effectively sequester their works until publication (by allowing only a paper copy in the library). Going forward, I'd probably say that everyone must lodge digital reproductions, but the "arts" students can sequester public access for ten years upon graduation; but after that, the university can publish its digital files in its database for Google to pillage. For departments in the business of "knowledge" production in the form of articles, I'd say a policy of no sequestering is appropriate to allow for immediate dissemination. I'd prefer to have no sequestering as the rule in all non-arts disciplines to facilitate dissemination, but I'm aware that some university presses won't publish books that are drawn dominantly from sources already available. (Hence, the problem with the scholars who are expected to publish their dissertation in book form, rather than in articles.) What do you think should be done? Should public universities be able to assert any rights or interests in the works of their students?

Anthony D'Amato on A Concise History of Baseball's Infield Fly Rule

I asked Tony D’Amato (Northwestern) to get up on the mound and throw the baseball that officially opens the spring season for us here on PrawfsBlawg. (He did, beaning the third baseman.) Here is the first in an eight-inning series of blog posts on the history of the Infield Fly Rule in Baseball. If you don’t know what the Rule is, you’re better off. Tony’s series is excerpted, revised, and re-bowdlerized from its inaugural appearance in the centennial issue of Northwestern’s law review, 100 NW. L. Rev. 189 (2006). If you don’t refer to the original, you’re better off.
-- Dan Markel

A CONCISE HISTORY OF BASEBALL’S INFIELD FLY RULE

PART 1: THE BIBLE

by Tony D’Amato

The Bible tells us, in 1 Samuel 17:35, that young David, armed with only a sling, confronted the giant warrior Goliath. The latter, surely accustomed to the then-ubiquitous weapon, can be assumed to have been fully prepared to duck the stone emanating from the device and then advance upon the youth to smite him.

But then David cleverly yelled "Infield fly!" causing Goliath to look upward. That momentary distraction was all the time David needed to pitch his missile and thereby change the course of human history.

Although David’s strategem should be familiar to every schoolchild, the debate it has engendered in academic circles is not so well known. At issue is which came first, baseball or the Infield Fly Rule? One faction, the Midrashers, started by Moses Maimonides, apparently relies on elementary logic semiotically grounded on a steaming hotbed of layered structuralism. They basically contend that the Rule would have been meaningless to Goliath in the absence of the context provided by the game of baseball.

The opposing faction, the Originalists, insist that every word in the Bible must be taken as gospel. Hence, if the Infield Fly Rule was mentioned first, then it must have antedated the game.

Several decades ago the Originalists seemed to score heavily when they pointed to the opening words of the Bible in support of their claim: “In the big inning . . . .” But thirteen treatises later it was generally agreed that the Originalist gambit could not be sustained because it relied upon a translational pun that was not fore-seeded in the original Hebrew.

Instead of dying down, the debate escalated. Fortunately, it is conducted without a trace of scholarly jealousy. A new explanatory theory of time reversal in support of the Originalist position appears in Tekel Upharsin's Contested Expectations of a Second Coming: Biblical Praxis, Lefty Gomez, and the Path-Dependence of Liberal Angst (Cambridge: Wormwood Press, 2007). Upharsin cordially invites the esteemed reader to consider adopting a fresh and hopeful methodology which he calls supernatural logic, in contradistinction to the cramped deductivism of Frege and Wittgenstein. In supernatural logic, deduction can proceed from the bottom up rather than from the top down. Effects may sometimes anticipate their causes and time itself may run backwards now and then. One of the most notorious examples of an effect preceding its cause is precisely the Infield Fly Rule. Professor Upharsin notes that inasmuch as the Bible was authored by the Supreme Being, or at least written under Him for credit, anyone who argues that the Infield Fly Rule was not ex ante the game of baseball might conceivably be charging the Lord God as having only limited power over time and sports. But surely if anyone can make time run backwards, the Almighty can do it. “Time runneth backwards as doth not the doe in the field nor the wolf on the fold,” Upharsin quotes Him as saying.

A blogger by the name of Anonymous objected to Upharsin’s argument. “Bringing Almighty God into this debate,” Anonymous declaimed, “is a cheap shot.”

Upharsin concludes his book by characterizing the Midrashers as dirty liars, blasphemers, and probably affiliates of the Frankfurt School. They must immediately be tied between driverless humvees and torn asunder, and/or eaten alive by creepy-crawly things with odd numbers of legs. Their names must be anathematized, their research grants revoked, and their domestic partners accursed unto the tenth generation.

Gender Diversification in National Security Law

So, my usual pattern when I post to National Security Advisors is to cross-post whatever I write in its entirety.  This one time, I wanted to make an exception: I just posted some thoughts on gender diversity (or, more precisely, the disturbing lack thereof) among national security law professors "over there," and, in the hopes of keeping the debate to one comment thread (instead of two), wanted to flag the post here, but not repeat it in full.

Incommensurability: Was Jim Crow Really That Bad?

Last night, I gave a talk to an undergraduate group of Asian and Asian American students at Arizona, on race and law in America.  I discussed at some length segregation and disenfranchisement of African Americans, as well as discrimination against Asian Americans; anti-miscegenation laws applicable to Asians, for example; laws designed to prevent Asians from owning land, and laws prohibiting the naturalization of Asians in an era when there were many forms of discrimination against non-citizens.   The students listened politely, and with some interest and surprise.  After the talk, I chatted with some of the students, and one sophomore, it turned out, was from Kazakhstan.  I don't think he was trying to top me, exactly, but I was shocked when he mentioned that between 1929 and 1935, Stalin reduced the population of his country by millions--the student said half the population starved, were murdered or induced to migrate.   He didn't say it, but I wondered if he was unimpressed by the fact that some Americans had to sit in the back of the bus.

Surely at other times and places, terrible things have happened.  But I hope that doesn't subtract from the injustice of slavery, segregation and racism in this country.  I do not think it is an answer to the millions of Americans who were shunted by law into inferior education and other opportunities that "Gee, at least you (or your ancestors) weren't liquidated."  On the other hand, after that conversation, I still consider Sascha Baron Cohen to be a genius, but I'm not sure I think the Borat character is  so funny.

What are your votes on the Best Legal Writing of 2006?

I just received an email from the Green Bag/GMU Law's communications office with an interesting announcement of the 2006 honorees for Exemplary Legal Writing. "The awards, now in their second year, are selected by the journal’s esteemed board of advisers, which includes members of the state and federal judiciary, the news media, private law firms and academia.  The honored works will be republished in the forthcoming Green Bag Almanac & Reader 2007."

Chief Justice John G. Roberts was recognized for his opinion in Rumsfeld v. FAIR.  Also honored is Judge Richard Posner, Chief Judge of the New York State Court of Appeals Judith Kaye, former Solicitor General Seth Waxman, and Yale Law School Dean Harold Koh.  In total, 24 works were recognized in six categories: judicial opinions, books, short articles, long articles, briefs and motions, and miscellany.  A list of the honorees is posted after the jump.

Green Bag Exemplary Legal Writing 2006 Honorees

Judicial Opinions

Jay S. Bybee, Amalgamated Transit Union v. Laidlaw Transit Servs., 448 F.3d 1092 (9th Cir. 2006)
Alex Kozinski, Jespersen v. Harrah’s, 444 F.3d 1104 (9th Cir. 2006)
Richard Posner, Cecaj v. Gonzales, 440 F.3d 897 (7th Cir. 2006)
John G. Roberts, Jr., Rumsfeld v. FAIR, 126 S. Ct. 1297 (2006)
Ronald A. White, Green v. Bd. Of Comm’rs, 450 F. Supp.2d 1273 (E.D. Okla. 2006)
William G. Young, U.S. v. Kandirakis, 441 F.Supp.2d 282 (D. Mass. 2006)

Books

Bruce Ackerman, The Failure of the Founding Fathers: Jefferson, Marshal and the Rise of Presidential Democracy (Belknap 2005)

Jack Goldsmith & Tim Wu, Who Controls the Internet: Illusions of a Borderless World (Oxford 2006)

Geoffrey Robertson, The Tyrannicide Brief: The Story of the Man Who Sent Charles I to the Scaffold (Pantheon 2006; Chatto & Windus 2005)

Benjamin Wittes, Confirmation Wars: Preserving Independent Courts in Angry Times (Rowman & Littlefield 2006)

Short Articles

Adam Liptak, Supreme Court Smackdown!, N.Y. Times, March 12, 2006
Duncan MacDonald, The Story of a Famous Promissory Note, 10 Scribes J.L. Writing 79 (2006)
Jeffrey Rosen, Judicial Exposure, N.Y. Times, Jan. 29, 2006
Jonathan M. Starble, Gimme an ‘S’: The High Court’s Grammatical Divide, Legal Times, Oct. 9, 2006
Stuart Taylor, Jr., Something’s Rotten at Duke, Nat’l. J., May 29, 2006
Diane P. Wood, Original Intent versus Evolution: The Legal-Writing Edition, The Scrivener, Summer 2005

Long Articles

Harold Hongju Koh, Can the President Be Torturer in Chief?, 81 Indiana L.J. 1145 (2006)
Pierre N. Leval, Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249 (2006)
J. Harvie Wilkinson III, The Rehnquist Court at Twilight: The Lures and Perils of Split-the-Difference Jurisprudence, 58 Stan. L. Rev. 1969 (2006)

Briefs and Motions

Aaron M. Panner et al., Amicus Brief in Hamdan v. Rumsfeld
Seth P. Waxman et. al., Amicus Brief in Smith v. Texas

Miscellany
Judicial Conference Advisory Committee on the Federal Rules of Civil Procedure, Restyled Federal Rules of Civil Procedure

Judith S. Kaye, The Best Oral Argument I (N)ever Made, 7 J. App. Prac. & Process 191 (2005)

Mark L. Movsesian, Samuel Williston: Brief Life of a Resilient Legal Scholar, Harv. Mag. (Jan-Feb. 2006)

Initially, I thought this list reflected a predictable GMU center-right bias (e.g., Roberts, Posner, Bybee, Kozinski). Then I saw it also included Judge Young's great Kandirakis opinion, which is a rousing defense of a defendant's constitutional rights -- and which I'm partial to on other grounds. But then I remembered Judge Young is a Reagan appointee also. Scrolling down I was pleased to see the center-left appear in some of the other categories; I was also excited to see a brief in Hamdan by a former boss of mine (the infinitely shrewd Aaron Panner). Anyway, I'll be sure to track down some of these suggestions.

Thanks to the good folks at Green Bag for paying attention to good writing. I suspect next year we'll begin to see some blog posts mentioned, perhaps, under the Miscellany category. In any event, what omissions do you think the Green Bag folks made?

A Turn to the Right?

Peter Berkowitz, a friend and former teacher to some of us here, has just released a fascinating and funny essay in the form of intellectual memoir entitled The Longer Way. It appears in a forthcoming collection, Why I Turned Right: Leading Baby Boom Conservatives Chronicle Their Political Journeys, ed. Mary Eberstadt (Simon and Schuster, 2007). In the essay, Peter acknowledges that he is regularly regarded with suspicion from lefties (he has criticized the critics of Bush v. Gore, among other things) and conservatives, who apparently don't think Peter hates liberalism enough. But in this essay, Peter gives a flavor of why I still (naively?) read his work as a non-conservative, even though Peter now publishes almost exclusively in conservative-affiliated publications, such as the Weekly Standard or Policy Review (which is surprisingly more multivocal since it left the Heritage Foundation and came to the Hoover Institution). For those who have read this essay: am I wrong?

One question, and then two stories from the essay to share after the jump. First, as a young man, Peter described himself as "captivated" by Roberto Unger's Knowledge and Politics, but he observes that the book has been "greeted with a deafening silence by the academy when it was first published in 1975, and since has been largely ignored or derided by professors of philosophy, political science, and law." Is this true? My sense is that Unger's work has meant a great deal to a variety of law professors, even though by the time I was at HLS in the late 1990's, it seemed like his influence had waned. I just did a quick JLR search on Westlaw and found 522 citations to Unger's book and 1500 citations to Unger himself. Since Westlaw's database doesn't even go back that far for many journals, I have to say: that's the kind of obscurity I could envy. To be fair, Peter also mentions derision of Unger's work, but again, my quick eyeballing suggests that Unger's work is probably acclaimed as much as it is derided, though perhaps his stature has waxed and waned over time. What kind of Unger moment do we live in now?

[As is often my practice, I showed this to Peter before posting and he helpfully replied: "My recollection (I'm in Herzliya reporting on national security and the Middle East and haven't got the opportunity at the moment to check) is that Stephen Holmes (in TNR), Don Herzog (University of Michigan Law Review(?)), and Ian Shapiro speaking in effect for liberal political theory, and William Ewald (in the Yale Law Journal) speaking for Oxford analytic moral philosophy, excoriated Unger's work and suggested that there was next to nothing to learn from Knowledge and Politics. It should also be said that Tony Kronman did write an early and illuminating review (including a revealing published exchange of letters between the two). I'm guessing that many of the references you found to Unger come in the 1980s from CLS scholars who for a time embraced Unger as one of their own (around 1983 Unger published a Harvard Law Review article called, if I remember correctly, "The Critical Legal Studies Movement" that did intersect with CLS but went far beyond it both in philosophical depth and political radicalness). Perhaps I should have said that professors of philosophy, political theory and jurisprudence largely ignored or derided Knowledge and Politics. Other than Kronman, can you think of significant exceptions to that proposition??" I don't know enough about Unger's reception history, so I invite others to weigh in on Unger's legacy in law schools today.]

Putting the Hunger for Unger issue aside, the essay has some gems. At one point, Peter describes his unusual experience as a young man in Israel after college, when he was shuttling between providing tennis instruction on a secular kibbutz in the desert and studying at a "English- language yeshiva where I would sit in on two hours of classes on Midrash and Talmud and then gobble down a quick, old- fashioned, Eastern European lunch of boiled chicken and rice, whereupon, to the consternation of classmates and teachers, I’d race out... I sensed that I was living a double life, and that it would be wise to keep it to myself. Eventually, I confirmed as much by casually letting a curious kibbutz friend know how I spent my mornings, and followed up that painful experiment by offhandedly mentioning to an inquisitive rabbi at the yeshiva where it was that I was living. My friend’s face and the rabbi’s contorted in identical fashion, as if I had nonchalantly disclosed my membership in a gang of child molesters."

Later, Peter describes how he ended up teaching at Harvard in the Government Department when he still had another year to finish at law school, which he started after his PhD.

"The offer I received required that I begin promptly. So I agreed to spend the fall semester of my third year in law school teaching political philosophy at Harvard. This was made possible by the best and most dangerous elements of a Yale Law School education. In a meeting in his office during the spring of my second year, the dean casually waived the reasonable law school requirement that students enrolled in courses be in residence in New Haven and attend classes. And why shouldn’t he have? On the one hand, he trusted Yale law students to use their freedom well. On the other hand, he supposed—as the faculty and administration drummed into our heads—that we members of the Yale Law School community were above the law, for if we weren’t, how would we be able to use it to do the right thing?" (emphasis added).

Public Deliberation Made Easier?

Yesterday, my post/public service announcement over at BioLaw discussed a pending proposal in Michigan that would require all sixth grade girls to receive a vaccine which prevents the transmission of the virus leading to about 70% of cervical cancer. When checking the bill status (it passed the state Senate almost unanimously and has been sitting in a state House committee for about two weeks), I noticed that the Michigan legislature’s website allows public posting of comments regarding pending legislation. This seems like a unique feature to me, though it’s certainly possible that this is becoming more common and I just haven’t noticed. Anyone aware of other states doing this? Thoughts about how legislators consider these comments, as compared to general letters or email/ voicemail messages left in their offices? Anyone out there posted such comments?

Collateral Consequence & Reentry Issues

Over at Blackprof.com, guest blogger and Maryland law professor Michael Pinard has an interesting and challenging post, Reentry Issues and Questions, which apparently will be the first post in a series on the subject. More and more attention has been paid to the collateral consequences of criminal convictions and reentry issues as the legal and social obstacles to offender reentry into society become more significant and continue to impact specific communities disproportionately. I know that in my eleven-year term of practice as a public defender in New York City, these issues went from mostly a background consideration to a key factor in many cases, and prosecutors and criminal defense attorneys quickly needed to become near-experts in immigration law, housing law and public benefits law, at a minimum. Professor Pinard has written some very thoughtful pieces in this area, and his post presents similarly important information and questions.

When your Writing is SSR-empted

In a previous post, I wondered what the right term was for when you are in the middle of working on an article, and then you suddenly see something strikingly similar posted on SSRN. 

This happened to me a couple of years ago when I was working on a contract theory piece (half of which is still kicking around in draft somewhere on my hard drive).  Since then, it’s also happened to at least two other academic friends, and the immediate effect can be quite demoralizing.  Yet, to some degree, it’s quite understandable, especially if you’re working on a hot topic or something that’s been in the news extensively.  Sooo…. after you’ve finished eating all of the chocolate ice cream in the freezer, there are some practical ways to address the problem of the scholarly interloper:

1) Scrap the parts that are common, and then develop one portion – perhaps that received cursory treatment in the interloping piece – into the focus of your article.

2) Was your piece advancing a particular point of view on a theory or a point of law reform?  If so, you may not agree with the policy view that the interloper is advancing.  Perhaps you can set the interloping piece up as your “straw man” to argue against.

3) Place your piece into cyberspace.  (Not literally.  The interloper has already done that).  Rather, is there a way to give the topic a modern spin above and beyond what the interloper has done? 

4) Alternatively, add a different theoretical approach.  The interloper did a law and humanities analysis.  Maybe you could could give it a critical one.

Of course, much of this discussion hinges on how much overlap there is between the two drafts.  If it turns out that the other piece has only a surface similarity to your draft, there may really not be much of a problem at all.  Throw in some citations and a discussion of the article in the introduction, and you’ll be all set.

On the other hand, do a cost-benefit analysis.   If it turns out that the pieces are discussing the same sources, cases, and the overlap is simply overwhelming, it may make more sense to bring your research to an SSR-end and move on to the next topic.  There’s certainly no shortage of interesting legal topics to write about.

[Hat-tip for the sniglet: Adam Kolber]

A Hair Post

Readers of Kenji Yoshino's book Covering, on which we had quite a few posts several months ago, and those who are interested more generally in issues concerning the workplace regulation of appearance, particularly when connected to traits that often connote racial or ethnic identity, should find interesting today's column in the LA Times by Erin Aubry Kaplan.  Kaplan writes about various recent examples of enforcement aimed at dreadlocks and other "natural black hairstyles" -- most notoriously, the recent pronouncement of a sheriff in Louisiana that anyone walking the streets of his town in dreadlocks "can expect to be getting a visit from a sheriff's deputy."  What's interesting, however, is that the other two examples she cites come from black institutions.  In one case, the institution is Hampton Univesity, a traditionally black university that, she says, forbids "unusual" hairstyles, including braids.  In the other, she says that Black Enterprise magazine banned similar hairstyles on student interns.

None of this necessarily refutes Yoshino's arguments, or the other arguments that have been made for the protection in the workplace of hairstyles that are often identified with African-Americans.  But it does underscore the fact that these disputes risk placing the courts at the center of highly contested questions of identity that are internal to the affected community, as Richard Ford has pointed out in a great essay in this book. 

Kaplan writes that these regulations send the message that "[i]f blacks want to have a chance in the increasingly unforgiving corporate world, they will have to shave off their rough edges -- starting with their hair."  I suspect she's wrong to say that the corporate world is increasingly unforgiving, especially on questions of appearance.  She does raise a valid point about the effects of appearance norms.  But does the fact that the regulations she cites (aside from the egregious example of the Louisiana sheriff) come from black institutions complicate the picture?  Does it suggest that "corporate" appearance norms are just that -- collective norms emerging from workplace culture, norms that may be objectionable but can't simply be reductively described as stemming from the callousness of a white majority?  Or, as one of our commenters, John Kang, has suggested, does it suggest that even black communities can internalize a form of "white" aesthetics?  Or is the answer still more complicated than either of those descriptions?         

When all else fails, rocks, paper, scissors!

My colleague JB Ruhl sent around this delightful little order from Judge Presnell in the Middle District of Florida.   The good judge, who has penned some excellent Blakely/Booker opinions, writes:

Upon consideration of the Motion – the latest in a series of Gordian knots that the parties have been unable to untangle without enlisting the assistance of the federal courts – it is ORDERED that said Motion is DENIED. Instead, the Court will fashion a new form of alternative dispute resolution, to wit: at 4:00 P.M. on Friday, June 30, 2006, counsel shall convene at a neutral site agreeable to both parties. If counsel cannot agree on a neutral site, they shall meet on the front steps of the Sam M. Gibbons U.S. Courthouse, 801 North Florida Ave., Tampa, Florida 33602. Each lawyer shall be entitled to be accompanied by one paralegal who shall act as an attendant and witness. At that time and location, counsel shall engage in one (1) game of “rock, paper, scissors.”

CNN has more.

Kahan on Goldsmith and Yoo

Thanks to Orin, I see that my former evidence prawf and mentor, Dan Kahan, has posted his spicy commencement address up on the Yale  Law website.  Kahan, in seven snappy pages about chick-sexing, moral responsibility, and torture, comes down hard on Torture-Memo author John Yoo, though he doesn't name Yoo in the speech.  Yoo, according to Kahan's analysis, was a "bad lawyer" in part because he failed to accept moral responsibility for the content of his Torture Memo.  Specifically:

Because of the institutional stature and formal authority of the OLC within the Executive Branch; because of the function the memo was intended to play in resolving a debate among other governmental officials of immense authority; and because of the impact of 9-11 in provoking societal reconsideration of the relationship between civil liberties and national security, this Yale-trained lawyer did have every reason to believe that his memo, all on its own, would have a profound and shaping impact on the professional and cultural understandings that are our law. Yet he pretended this wasn’t so. When asked by an appalled career military intelligence officer whether the memo meant the President could order torture, he answered, “Yes, but I’m not talking policy. I’m talking law here.”

In contrast to Yoo, Jack Goldsmith earns Kahan's plaudits.  Why? Because Goldsmith, when assuming the mantle of OLC, repudiated the Torture Memo as well as temporarily suspended the NSA warrantless wiretapping program.  Thus, despite the undeserved rough handling Goldsmith received at Harvard Law School upon his arrival from some faculty, Kahan thinks things are looking up at HLS:

Now that Goldsmith is there, I suspect it's much less likely that any of its future graduates will try, in cowardly fashion, to evade moral responsibility for their actions by insisting that law is nothing but a set of formally binding rules. And I have hope that as a result of his actions, it's much less likely any of you ever will either.

Notwithstanding my prior disagreements with him, I love Dan K.  But I can't say with the same confidence he does that Yoo's statement, by which he decoupled law and policy, is itself an evasion of moral responsiblity.  When I clerked, I often had to advise the judge about what the law permitted or restricted even though I had disagreements with the law's underlying policy choices.  No one would say it was "cowardly" to both register those disagreements (either in conversation or urging a special concurrence) or in being clear about what the law was and just recognizing the institutional role one occupies. 

So what is it about the context Yoo was in that removed him from that occupational safe harbor?  To Kahan, it seems as if the problem was that Yoo's role was going to have the effect of interstitially creating law that Kahan disagrees with fervently -- something judges often do also.  But the interstitial nature of the law propounded by the Yoo Memo is, like other law, subject to revision and repudiation in a democratic society.  And indeed, torture has been subsequently, and at least officially, more or less proscribed.  So it might be the case that if Yoo had to write the Memo again from scratch today, the Memo would come out differently.  (My very raw understanding of Yoo's thinking is that POTUS' Art II powers are plenary in the field of national security, and so perhaps Yoo wouldn't actually change his mind on the issue of torture, but I'm not sure.)  Here's my naive question: is the problem with Yoo that he failed to accept moral responsibility for the law he "created" or that his memo "created" a law that most people find repugnant?

Conflict and Legal Scholarship

Conflict is essential to fiction.  The classic Aristotelian framework for drama is based entirely on conflict: conflict between two people, between nations, between the protagonist and the forces arrayed against her.   Non-fiction also thrives on conflict: witness the crop of successful reality shows or documentaries (penguins vs. the elements).  Even legal scholarship requires conflict.  Most law review articles begin by setting forth a problem, a puzzle, a circuit split.  The article then endeavors to resolve the conflict by providing a new insight or creating the proper path to resolution.

With that being said, I think the Yale Law Journal's embrace of conflict has good intentions but a problematic execution.  In their "Call for Debate", the YLJ editors solicit a set of articles that are "engaged in a dialogue on a single compelling topic."  Noting that they want two pieces that "speak to each other," the editors encourage the submission of an incomplete paper and a matching prospectus so that the articles can develop together more organically.   They offer two examples: the Manning-Eskridge debate over statutory interpretation, and the Sunstein & Vermeule-Steiker-Donohue & Wolfers debate concerning empirical studies about the death penalty.

Articles and responses are certainly not new to legal scholarship.  What is new, or at least uncommon, is a solicitation of a matching pair at the same time.  My co-Blawger Paul thinks this is an excellent idea.  In the interest of further conflict, however, I must disagree.

In the traditional law review article-and-response, the article is sent out, read, and then responded to by another academic.  If the responder got the article pre-publication, the response could presumably be in the hopper before the article was published.  But the original author did not pick her interlocutor; the review did.  I am curious about how the Manning-Eskridge and Sunstein & Vermeule et al. debates came to life.  Did these teams present themselves as pre-arranged duels?  Or did the Stanford and Columbia editors choose the responses or the responders to the original article?

If the "debate" comes as a pre-arranged set, I worry that it will be "conflict for show."  Like a musty vaudeville act, the combatants will have all their moves choreographed ahead of time.  ("Two law professors walk into a talent agent's office . . . .")  Having chosen each other, the two sides have to have some degree of agreement.  The natural human tendency will be to pick a sparring partner who is good but doesn't level any really dangerous punches.  Knowing this, the two sides will be encouraged to amp up the level of combat, at least on the surface, to make it look sufficiently contentious.  In the end, the debate will be less like a true match and more like pro-wrestling: it will look really bad but the whole thing will be scripted ahead of time.

If the Yale editors want a real debate, they will probably have to pick the two sides themselves.  That may not be too hard, and an author may even be helpful in proposing potential debaters.  But I fear that a pre-packaged debate will not be a true debate at all.

Witchcraft Redux

My stint at Prawfs has come to an end, sadly.  I want to reiterate my gratitude to Dan for the experience, which has been terrific.  I thought I would end where I began, with government regulation of witchcraft in South Africa. 

In my initial post, I defended the new democracy’s first attempt to regulate occult practices.  Parliament recently passed the Traditional Health Practitioner’s Act, which establishes a regulatory agency for the purpose of licensing and regulating traditional healers.  These healers employ occult powers in order to protect clients who feel they have been the victims of witchcraft.  Drawing on democratic theory, I argued that regulating healers in this way is defensible but I warned that the government ought not go further and criminalize witchcraft itself. 

On Friday, I presented a draft of that argument to the New York Junior Faculty Colloquium at Fordham Law School.  The crowd included many friends and (as I learned) more than a few Prawfs readers.  Below are just three of their many insightful comments along with my preliminary reactions. 

Some people wondered whether it makes sense to even consider criminalizing witchcraft, since it is in fact impossible for witches to cause harm by occult means.  Nice point.  A first answer is that most Africans—citizens, members of Parliament, police, etc.—believe that witches can harm others.  But admittedly it doesn’t necessarily follow that we ought to credulously accept that belief as a normative matter.  Others countered that even U.S. law occasionally recognizes beliefs that may appear to be impossible.  In one Mississippi case, for instance, two brothers pled guilty to conspiracy to commit murder by means of voodoo.  (Although such cases are rare, few jurisdictions recognize an “inherent impossibility” defense.)  Tort law, someone else reported, also sometimes permits suits based on spiritual aggression.  And some state health insurance programs apparently cover treatment through prayer healing.  Certainly these examples are controversial.  But my initial sense is that the intent to cause harm (if present in witches) may be sufficient to justify a criminal law against witchcraft, even in the face of serious disagreement about whether witches can cause harm.  Ultimately, of course, I too come out against criminalizing witchcraft—my point here is only that there is something serious to argue about.

A few participants worried that regulating traditional healers will involve the government in favoring or disfavoring particular belief systems in violation of anti-establishment norms.  Favoritism could take several forms, including endorsing certain methods of healing over other techniques.   This is a real concern (even though framers of the South African constitution pointedly declined to include an anti-establishment provision).  My immediate response is that absolute government neutrality, even assuming its attractiveness to another culture, is difficult to achieve in this area.  Certainly many think that previous law denigrated African culture as a whole.  And any conceivable policy approach will violate government neutrality in one way or another.

One of the most interesting comments was only tangentially related to the project.  Recalling that any misfortune can be attributed to witchcraft—including illness, poverty, or even a car accident—one person asked:  What would it take for Africans to come to understand automobile collisions as meaningless accidents?   Americans have come to view accidents as relatively unconnected to human agency, even though we routinely make policy choices that can reduce or redirect their costs.   How might South Africa encourage its citizens to view car accidents and other misfortunes as similarly disconnected from meaningful human action? 

Comments are more than welcome. 

Coming Out as a Bisexual Woman When You're Dating a Man

I'm certainly not the only person in the world to have thoughts on this problem, but in the spirit of discussing issues that junior faculty face, as well as having a meta-conversation, here goes:   Very few of my colleagues or students know that I'm bisexual.  Is it because I believe in keeping my "private" life "private"?   Not at all.

 

The problem is that I do reference my personal life in casual conversation, and I have a boyfriend.   As a result, people around me tend to assume that I'm hetero.  As an extension, many tend to assume that I'm straight: not just hetero, but planning to get married, have children, raise them in a particular way, etc.   (For anyone confused by this, I use "queer" to mean those who are nonconformist with respect to the realms of sexual activity, family structure, and gender performance.   I use "straight" to mean those who are conformist in these realms.  Thus, straight/queer does not map precisely onto hetero/lgb.) If I want to disabuse anyone of the notion that I'm hetero, I must, apropos of nothing at all, advertise my sexual orientation, which I am sure most people would deem to be at best self-important and irrelevant, at worst inappropriate and "too personal."

 

I could avoid mentioning my boyfriend, but that's not only misleading, I think it's the wrong way to treat someone you care for. The option of calling him my "partner" is one I tried briefly, but it grates on me: The gender of my boyfriend isn't universally irrelevant: It's just not a reason to presume I'm hetero. In any case, many people would just assume I am a lesbian, and if they met my boyfriend, revert to assuming I'm hetero. So, I call my boyfriend my boyfriend, and allow others to assume I am hetero, and straight. But given the false distinction between inaction and action, this makes me feel as if I'm closeting myself.

 

On the other hand, I never feel as if I can be very indignant about this. I chose to date a man, and we are currently monogamous, so at the end of the day, my life is a whole lot easier than it is for many lgb people. Thus, to proactively remind those around me that I'm bi feels, well, a little like posing.

 

Why does it matter for people to know that I'm bi?  Of course, nobody likes to spend years of their life fighting for queer rights, only to go in the closet. But it's not just personal irritation and vexation at stake. It is clear to me that my colleagues and students care, sometimes, about the facts that I am not white and am a woman. They have the good sense to know that racism, sexism, and even benign cultural differences produce a variety of experiences and perspectives that are often relevant and interesting. They would similarly care to know, I think, that I have been discriminated against and harassed because of my sexual orientation.

 

Even more importantly, I suspect that if they knew I'm bi, they would also be more likely to entertain the possibility that I'm queer in other ways, too (and that maybe some of the heterosexual people in the room are, too!).   The more we are reminded of the presence of queers in the room, the more likely we are to interrogate the numerous anti-queer assumptions pervading the law, such as the assumption that everyone wants to, or should, ape the model of the nuclear family.   (Bravo to co-bloggers Ethan, Dan, and Jennifer for doing their part.)

 

So, what are some creative ways, not just for professors, but for professionals more broadly, to negotiate this and other problems of heterosexism? I seem to have found my way, in the form of this post.

Metablogging for academics

Over at the new blog, 3LEpiphany, Ian Best, an Ohio State Law 3L, is compiling a very useful set of links regarding academic blogging.  Unsurprisingly, a lot of the posts he includes were written by prawfs both here and elsewhere in the blawg world.  What may be surprising, however, is that  Ian is getting credit from his law school for blogging; or as a lawyer who blogs noted, Ian is paying tuition for the privilege to blog...I sure hope he's getting his money's worth or at least pays in-state tuition.

From Ekow Yankeh: A Gap in my humor

Not too long ago, Seth Stevenson at Slate wrote an article regarding a terrific Gap ad directed by Spike Jonze, lamenting its brief and limited use by the company.   The ad celebrates, with great wit, Gap's new remodeling initiative.  At the heart of his lamentation was puzzlement about why the company would have created, at great expense, such an ad and then have such little insight or courage as to use it.   The ad is in fact quite funny-- you can find one version of it here, featuring a group of customers and employees misbehaving in a Gap store, cresting in a frenzy of destruction.   I was completely enjoying it until a scene where a large object is thrown out of the store's window onto a public street, inspiring a passing driver to launch herself and auto into the store - the ultimate in Wilson and Kelling's broken windows experiment.   

Somewhere in the back of my grading-finals-addled mind, the reason the commercial was contained leaped out at me.   On the foundation of absolutely baseless speculation, I thought to myself, "No way Gap legal allows that commercial to run nationwide."  I mean, who needs that lawsuit?   Trying to defend a commercial as a mere commercial would seem innocent enough but try telling this to the directors of the movie, "The Program."  One person inspired to live out the commercial, one innocently harmed victim and a few creative lawyers and…

Now, after five minutes of calm I find this reasoning overwrought if not unthinkable.  (And in my defense, I did just finish writing a torts exam.)  Still, some part of me wonders, were I in the Gap legal department, would I not have been uneasy or voted against the commercial.   So the question is, is it just me?  What the hell has happened to (my) sensible thinking?  Or, broader, is this reflex of finding legal liability a reflection of a society detached from common notions of responsibility?   Or, perhaps, of law intelligently recognizing and protecting from predictable human failings and suggestibility? 

Wednesday's Open Thread

Here it is.  Remember the rules: be nice and don't be a space hog.

From Ekow Yankah: Of Dressing Up and Selling Out

(Ekow Yankah is a rookie prawf at U. of Illinois and a former guest with Prawfs--Ed.)

Having learned nothing from my prior blogging (i.e. the difficulty of taking on sophisticated subjects in brief and suffering the consequences –or compliment- of much more thorough counterargument) I again tackle a sensitive topic.  The topic has the danger of touching upon the live wire of race and pop culture.  It will undoubtedly invite some to declare that I am a black man whose success has caused me to lose touch with black culture or identity (or much, much worse).   My only real hope is that the lateness of my taking up the topic and the level of conversation on this website provides the highest level of intelligent accusations.   Forward!

Earlier this year the NBA commissioner David Stern announced the imposition of a new NBA dress code.   The dress code requires players to dress in business cassual attire when on official league business, e.g. on the way to games.   It also specifically barred certain articles of clothing in what some viewed as a specific attack on black culture, for example barring all medallions and head wear.  Set aside that some astute observers have noted that the announcement of the policy seemed strategically chosen to focus attention on professional basketball before the season when it is largely missing from the public eye.   The imposition of the dress code, viewed as an imposition of a white mainstream aesthetic attempting to suppress the urban hip-hop style of a league dominated by young black athletes, gave rise to a predictable controversy.   

Unlike some commentators I do not find the accusation absurd.   Where the articles of clothing, (or speech, cultural knowledge or other markers) which determine one's fluidity in positions of power are dominated by a single race, it is impossible to imagine that race can be totally separated from these markers.   Put simply, in America, white people largely, though certainly not singularly, define what constitutes "normal" or "appropriate" dress.  Thus, when some black athletes viewed the NBA's dress code as an attempt to impose a style on them as racially charged, their position was not without basis.

To be sure, I am not claiming that Black America is monolithic in style or thought.   African-Americans have a long history of elegance and style; the archetype of the fine Black gentleman and the resplendence of Black churches are but two examples.   Further, the idea that having to dress up for work is somehow antithetical with black identity is not one I believe is largely held.  Thus, the contention that a black man has to stake his identity in part on his low slung jeans and medallions is advanced by, at most, a sub-group of (typically young) African-Americans.   Yet, it is undeniably there and easily tapped into.

We can quickly dispense with many of the arguments made against the dress code immediately following its imposition.   Allen Iverson's repeated position that a suit does not make one a good man, if taken literally, is totally besides the point.  Nobody would seriously contend that what you wear changes your moral make-up.   (The possible exception to this may be where what one wears is morally relevant given social norms, so that wearing red to a funeral with the knowledge that this will cause insult may matter in light of the purposeful violation of strong social norms.   But this point should be put aside.)  The more powerful point in Iverson's position is of that the league's attempt to make its product more palatable is a shallow one as the various advertisers ought recognize that whatever traits that they found unattractive in basketball players would seem unchanged by simply putting basketball players in Valentino.   

This, of course, ignores that in many instances the very thing that advertisers object to is the image of the players and that advertisers are unapologetically shallow.   (Never mind the ultimate question in my mind as to whether, even from an advertising point-of-view, this is a good move for the league.)  The even better argument by Marcus Camby that the league should consider giving a clothing stipend to a group of millionaires predictably drowned in a sea of laughter.   I, for one, thought it did not get a fair hearing and am forwarding this wonderful and ambitious contention to my Dean for translation into the law school setting.

Further, the spate of rights talk ("One has a right to determine what one wears") is untenable.  Absent interaction with other rights (e.g. religious expression) few contest that that employers may determine, within reason, appropriate work wear.   Indeed, it is the very fact that most of us are intimately aware of our employer's ability to demand professional dress that made the entire debate seem silly or self indulgent to the general public. After all, wouldn't many young, white lawyers love to wear jeans and a baseball cap into the office?   Don't the masses of young whites (and for that matter, many others including Blacks) understand that they must trade in some measure of personal freedom in order to participate in commercial life (a point that is made with much more vitriol by unsavory commentators to whom I am sorry to give comfort)?

Still a related point seems to motivate the debate; the idea that somehow, giving in to these demands would somehow be different for a young, black basketball player than for the young, white Merrill Lynch analyst.   It is this charge which worries me.  It is the idea that any compromise, giving even an inch on those markers of Black urban identity is to sell out, which gives this indictment its currency.   This is what grounds Iverson's and Rip Hamilton's comments that complying with the dress code strikes them as "fake."

It is important to recognize that the contention that participation with mainstream demands somehow negates one's claim to Black authenticity is deeply harmful and counter-productive.   This contention introduces a profoundly different tension than the tension facing most white Americans in the same position.   Because the very definition of "appropriate" dress has a racial charge, there may be more at stake for an African-American in considering a career's normal trade-offs.   This is especially so when the symbols that seem under attack are perceived to be precisely symbols of Black (sub)culture.  But in the hand of some, advertently or inadvertently, this position becomes one of cultural brinksmanship.   As I have said, it is not a position I believe most Black Americans to hold, but it is clear that the current is there, readily tapped into and in many cases abused.

For those of you who know me personally and believe this position is simply born of my clearly abnormal like of neckties… ummm… well… I'll get back to you on that.

This looks like a hobbyhorse I can ride

John Tierney's column in the NYT today begins thus:

Journalists and legal scholars have been decrying "cronyism" and calling for "mainstream" values when picking a Supreme Court justice. But how do they go about picking the professors to train the next generation of journalists and lawyers?

Without naming names, Tierney then continues with a reminder of the evidence suggesting political bias in the academy, specifically looking at how law schools are filled with faculty who predominantly give money to (and presumably vote for) the Democratic party. 

This column serves as a good example of the "Your question reminds me of an answer I'd like to give" phenomenon.  Look at the hook to his column, regarding the critique of cronyism.  It cannot be denied that various esteemed members of the conservative punditocracy have been as adamant about the cronyism charges viz. Miers, as the center or the left. See this post by Kaimi, which provides links for George Will, Charles Krauthammer, Randy Barnett, Bill Kristol, and Steve Bainbridge.  These are all conservative "journalists" or "legal scholars."

In concluding his piece, Tierney writes: "As long as the professors look different, why worry if they think the same?"  Tierney may have a point here and I'm not saying that real intellectual diversity, which I hasten to add is not the same as partisan-diversity, is not a desideratum in law schools for both students and faculty.  But it seems strange to launch a critique of the lack of intellectual diversity from the platform of the Miers nomination, which has been opposed by a stunning array of principled conservatives, centrists, and progressives precisely on the grounds of cronyism.  If I'm missing something here, let me know.

Hell hath no fury like a blogosphere scorned

Many thanks to Dan, Ethan, Kaimi, and the rest of the Prawfsblawg glitterati for inviting me on as a guest blogger.  It is exciting and great fun to be part of this terrific forum.

The blogosphere has pretty solidly denounced the Harriet Miers confirmation.  As Mickey Kaus predicted, Bush's success with the Roberts' nomination seems to have set too high a bar for his follow-up pick.  I am a little surprised at the ferocity of the reaction -- perhaps some folks had their hearts too firmly set on a particular brand of conservative jurist.  But I also think some of what is going on is an overreaction to the importance of the Supreme Court.  After all, Harriet Miers may not have the glittering credentials of an Alex Kozinski or a Michael Luttig, but she was president of the bar association for the second largest state in the nation.  Where was the outrage over a certain appointee, to a position where lives could be lost if performed incompetently, who had been forced to resign as commissioner of the International Arabian Horses Association?  Perhaps a little more blogospheric attention to that appointment could have saved lives or billions of dollars.

I guess what I'm saying is, on this one, color me a little Zaring.

Thoughts on Employment and a Non-Gun-Ownership Requirement

Another day, another workplace killing. Things aren't getting any better, are they?

Here's a question, perhaps a suggestion: Should companies, as a condition of employment, start requiring workers to sign an agreement of non-gun-ownership? This would require an employee to state that she does not own any guns, and that she will not purchase any guns during her employment. It seems that if an employer required an employee to agree to non-gun-ownership, the likelihood of a workplace killing by that employee would be lessened.

Such a change wouldn't altogther end workplace killings. There's the possibility that the employee would lie on her application, or would simply acquire a gun after being fired and use it to attack her workplace. On the other hand, it is all but certain that there is some population of unstable, disgruntled employees who own guns, and that for some of those employees, their easy access to currently-owned guns is an important enabling factor that facilitates a decision to transfer their anger into actual killing of their co-workers.

Would a requirement of non-gun-ownership be legal or enforceable? I'm not sure. (Do we have any employment law people here?) A while ago, Eugene Volokh blogged about a court upholding a ban on gun ownership by public housing residents -- apparently that kind of restriction on gun ownership is allowed. On the other hand, there is (at least in one state) a self-defense exception to the at-will employment doctrine.

If this kind of provision is legal, then perhaps it is something employers (and their insurers) should start looking into. Is anyone aware of employers who currently have such a policy?

Why Stop with the Third Year -- Let's Do Away with the Whole Thing!

Laura Appleman wants to do away with 3L year. Perhaps she's selling herself short. From CNN.com:

California, Vermont, Virginia and Washington allow law readers to take bar exams after three or four years in apprenticeships registered with the state. Three other states -- New York, Maine and Wyoming -- let non-law school graduates take bar exams if they have a combination of office study and law school experience.

Fewer than 150 aspiring lawyers are getting their legal educations in programs that require no law school whatsoever, according to the bars of the states that allow the practice. By comparison, more than 140,000 students attend law schools approved by the American Bar Association, and thousands more attend schools not approved by the ABA.

Despite some challenges, law readers can achieve big things. Marilyn Skoglund, for instance, sits on the Vermont Supreme Court, and Gary Blasi is a professor at the University of California at Los Angeles.

I knew one person in New York who was apprenticing. It sounded like a tough path, but it worked for this person's life situation.

Is this generally a good idea? A bad idea? Is it just a relic (only 150 people doing it now) that we can tolerate, or one that should be scrapped? Dan S. and Laura's exchange at Legal Affairs (and here) has highlighted the fact that law school means different things to different people. I suspect that differences in goals and perceptions, such as those that have driven Dan S. and Laura's debate so far, would certainly inform responses to the appropriateness and place of apprenticeships.

One exception to the Ph.D. rule

Let's set aside for the moment our broader differences on whether a Ph.D. is really required for writing interdisciplinary work -- opinions differ -- and focus on some areas of agreement. For instance, even staunch Ph.D. advocate Brian Leiter seems to concede that some J.D.'s are as qualified to write as some Ph.D.'s.

And which are these explicitly Leiter-approved exceptions to the general rule? Venture below the fold, constant reader, for the surprising answer.

It turns out that, even accepting as true all of Leiter's assertions, we find an exception to the general rule of Ph.D. supremacy, hidden deep within the holy writ:

"A BA in philosophy apparently puts you well ahead of a PhD in political science."

That's the exception, folks. A J.D. can write just as well as a Ph.D., provided that that Ph.D.'s Ph.D. is in political science, while the J.D. earned her B.A. in philosophy.

Now that we've found common ground between warring factions, we may rejoice.

In the mean while, if you've got a moment to spare, don't forget to read my own draft pieces, Taking Political Science Seriously and All I Really Needed to Know about Political Science I Learned in a 30-minute Perusal of the Blackwell Companion.

Disney-fication

Everyone likes to complain about the recent Disney-fication of Times Square. I'm sorry to report that the phenomenon appears to be spreading. It appears that Conglomerate is now being Disney-fied, as all manner of law professors and other unsavory characters converge on the site to discuss the recent Disney opinion. And like Times Square, I must say that I liked Conglomerate a lot better pre-Disneyfication, back when it was nothing but a bunch of strip clubs, peep shows, and drug dealers.

Ahh well. At least I've still got Prawfsblawg. . .

Pace Hillel: Majoritarianism Is Not All There Is To Democracy

Orin's remarks notwithstanding, there are some non-visiting voices here at Prawfs.  One of those is the voice of our own Hillel Levin, who has generated much discussion about breastfeeding, lactivism, and other important social issues.  One of Hillel's hobbyhorses--and the one that has generated the most discussion here--is his commitment to majoritarianism over courts.   He has honed his arguments through provocative discussions of Kelo and the "french-fry case."  My first instinct to his majoritarianism was populist sympathy.

Much of my own academic work has been of the populist variety: I've argued for new institutions of direct democracy; I've argued that court-centrism is indeed problematic and that legislatures embody substantial democratic virtues that courts lack; and I've even suggested that our conception of responsibility can only be vindicated through democratic procedures.  In short, my inclination is to be sympathetic to majoritarianism over counter-majoritarianism, so Hillel's posts first resonated with me.

But I find Hillel's perspective on legislatures too rosy by half, so have to come to the rescue of the courts.  A single blog post can't do this argument justice, but I do feel that another consistent voice here must speak up about the importance of courts and their unique role in the administration of justice.  Quite simply, justice already costs tremendous amounts of money.  A lone individual who has been wronged must pay high entry costs to have justice done.  The individual will have to find a lawyer; and usually they will have to pay a lawyer.  The individual will have to tell their narrative in a foreign language: legalese.  The individual will have to fit his wrong into a "cognizable" category.  The individual will often have to convince a judge and a jury of his peers that he has indeed been wronged and is entitled to redress.  These costs are severe-- but they are arguably necessary.  Asking the individual, however, to mobilize a political movement to garner the support of a majority of voters is too high a cost, I think.  Worse still, those who fetishize political mobilization over court-centered victories often fail to recognize that those who are expected to mobilize (those already wronged) cannot benefit from the fruit of their labors if their recourse is in the legislature because it takes a new law to get the recognition they need--and the new law cannot apply to the past wrongs. 

[I think even the Court recognizes this distinction.  For example, if one looks at the standing jurisprudence, one can trace a pattern (though it is not universally applied): wronged individuals can often get standing, while organizations that can more easily use the political process do not.  The Sierra Club, with its political capital is expected to go through political channels, while a group of students (SCRAP) can find redress through the courts.  Of course, the Court boots many wronged individuals on standing grounds (Allen, Lyons, etc.)--but it is far more suspicious of organizations that have access to the political process in a way that wronged individuals do not.]

There are other things one can focus on to counter Hillel's counter-counter-majoritarianism: legislatures do not actually respond adequately to simple majorities; legislators respond more to money than to democratic mandates; legislatures makes compromises for reasons endogenous to the legislative process that have nothing to do with the preferences of their constituencies; campaign finance requires reform before we can trust legislatures; etc.  But I wanted to go for something more touchy-feely to start out this discussion. 

Posner's "Bad News"

Judge Richard Posner has this essay, "Bad News," in today's New York Times.  Posner considers the "why", and also the "so what", of what he describes as a number of "trends" in media-and-politics, including the rise of "new media", the increasingly common charges - hurled from the left and right -- of political "bias" in the media, the alleged decline in civility, the increase in polarization, etc.  The essay is, no surprise, a fascinating read.

The essay is full of other provocative observations.  For example:

The current tendency to political polarization in news reporting is thus a consequence of changes not in underlying political opinions but in costs, specifically the falling costs of new entrants. The rise of the conservative Fox News Channel caused CNN to shift to the left. CNN was going to lose many of its conservative viewers to Fox anyway, so it made sense to increase its appeal to its remaining viewers by catering more assiduously to their political preferences. . . .

Being profit-driven, the media respond to the actual demands of their audience rather than to the idealized ''thirst for knowledge'' demand posited by public intellectuals and deans of journalism schools. They serve up what the consumer wants, and the more intense the competitive pressure, the better they do it. We see this in the media's coverage of political campaigns. Relatively little attention is paid to issues. Fundamental questions, like the actual difference in policies that might result if one candidate rather than the other won, get little play. The focus instead is on who's ahead, viewed as a function of campaign tactics, which are meticulously reported. Candidates' statements are evaluated not for their truth but for their adroitness; it is assumed, without a hint of embarrassment, that a political candidate who levels with voters disqualifies himself from being taken seriously, like a racehorse that tries to hug the outside of the track. News coverage of a political campaign is oriented to a public that enjoys competitive sports, not to one that is civic-minded.

In light of Ron's recent post on blogging by law profs, Posner's discussion of blogs, their role, and their effects is particularly interesting:

The latest, and perhaps gravest, challenge to the journalistic establishment is the blog. Journalists accuse bloggers of having lowered standards. But their real concern is less high-minded - it is the threat that bloggers, who are mostly amateurs, pose to professional journalists and their principal employers, the conventional news media. . . .

What really sticks in the craw of conventional journalists is that although individual blogs have no warrant of accuracy, the blogosphere as a whole has a better error-correction machinery than the conventional media do. The rapidity with which vast masses of information are pooled and sifted leaves the conventional media in the dust. Not only are there millions of blogs, and thousands of bloggers who specialize, but, what is more, readers post comments that augment the blogs, and the information in those comments, as in the blogs themselves, zips around blogland at the speed of electronic transmission.

This means that corrections in blogs are also disseminated virtually instantaneously, whereas when a member of the mainstream media catches a mistake, it may take weeks to communicate a retraction to the public.  . . .

The charge by mainstream journalists that blogging lacks checks and balances is obtuse. The blogosphere has more checks and balances than the conventional media; only they are different. The model is Friedrich Hayek's classic analysis of how the economic market pools enormous quantities of information efficiently despite its decentralized character, its lack of a master coordinator or regulator, and the very limited knowledge possessed by each of its participants. . . .

There's a lot more.  I have to admit, I'm not really sure where I stand on the "isn't all this new media great!" v. "we're a nation of sensation-consuming, polarized idiots" debate.  It seems to me that many people -- who regard themselves, quite confidently, as informed and intelligent -- are utterly ignorant; that the rise of the internet and talk radio has led to a more cacophonous and more conflict-oriented public conversation, and also that the effective monopoly the big networks and the leading newspapers enjoyed for a while was unhealthy.  I guess, on balance, I think things are better now -- after Drudge, Fox News, and Rush Limbaugh -- than they were before.  In class, I try to encourage some Schauer-esque skepticism about the "marketplace of ideas" argument; still, there seems to be no avoiding the point -- made by Posner -- that increased competition in the media seems to result both in the expression of more (erroneous) opinions and the exposure of more opinions as erroneous.

Rick

Another blog symposium

The folks over at Conglomerate are hosting a blog symposium to talk about Disney. And what a cast of characters they've assembled:

Sean Griffith of the University of Connecticut School of Law Larry Hamermesh of the Widener University School of Law Lyman Johnson of Washington & Lee University School of Law Larry Ribstein of the University of Illinois College of Law Hillary Sale of the University of Iowa College of Law David Skeel of the University of Pennsylvania Law School Lynn Stout of the UCLA School of Law

Sounds like fun! (And given Larry Ribstein's known penchant for writing about movies, I'm wondering whether he'll be briefly breaking away from the discussion of fiduciary duty to offer a review of Herbie, Fully Loaded).

And incidentally, wouldn't the Disney saga make a heck of a Disney movie? You'd have Keira Knightley Linsday Lohan whoever-the-eighteen-year-old-flavor-of-the-month-is, an intrepid young financial reporter learning to pronounce the phrase "fiduciary duty" as she covers the case (and uncovers key evidence, of course). You could have Geoffrey Rush as ______ the evil/incompetent executive/director (fill in the blank appropriately depending on your own view of the merits of the case), and Orlando Bloom as the young law clerk who uncovers crucial evidence in the case while falling in love with the beautiful young financial reporter. The suspense . . . the drama . . . the romance! I had better find an agent. Remember, you saw it here first. I suppose I'll have to start my "Best Original Screenplay" speech "I'd like to thank Dan Markel for his blog where I first posted this idea . . ."

Deterring Genocide

The always-smart Julian Ku (Hofstra) of Opinio Juris complains that advocates of permanent international criminal tribunals rely too much on deterrence rationales in justifying their advocacy of a standing body to punish inveterate human rights abusers without having any evidence to back up the argument that such human rights abusers could be deterred by a standing body.  Since, Ku argues, even the United States favors ad hoc tribunals, the deterrence rationale for the ICC, for example, only works if there is an additional deterrent effect upon abusers that would not already be accounted for by the use and support of ad hoc tribunals. 

It is an interesting question--but I suppose I would think he's got the burden of proof: an entrenched and standing institution should be more able to mete out justice to perpetrators, all things being equal.  To be sure, evidence for the deterrent effect is always to be welcomed.  But theoretically, I think, logic is with the advocates for the ICC on this count.

Life (sadly) imitates art

The humor site Scrappleface posted a parody, titled "[Senator] Kennedy Slams Unnamed Supreme Court Nominee."  (via Volokh).  It starts off:

Sen. Ted Kennedy, D-MA, today criticized President George Bush's as-yet-unnamed replacement for retiring Supreme Court Justice Sandra Day O'Connor as a "brutal, Bible-thumping, right-wing ideologue who hates minorities, women and cocker spaniels."  "He or she is clearly outside the mainstream of American values," said Sen. Kennedy.

It's a decent little short-humor piece, playing off of the fact that the left seems at times to be so reflexively anti-Bush that they would already be opposed to a not-yet-existent nominee.  That's pretty funny, in a way.  But the left would never actually do something so inane, would they? 

An unlikely dialogue

It's not every day that law students upstage law professors online.  But a recent blog discussion is following exactly that pattern.  In one corner of the ring is George Washington Mason law professor Todd Zywicki.  In the other corner is mild-mannered (?) Yale law student Will Baude.  So far, the fight has been no contest, with every point going decisively in Will Baude's favor. 

It helps that Zywicki probably picked the wrong fight.  He criticized a New York Times editorial for the statement that "as with so much else, the founders, who came up with the idea of a clear wall of separation between church and state, had it right."  Zywicki wrote "no one seriously believes that it was the founders who 'came up with the idea of a clear wall between church and state' do they?"

Zywicki's major problem, however, is the factual record.  As Baude and others rightly noted, the phrase "wall of separation between church and state" comes directly from the pen of Thomas Jefferson. 

Confronted with that fact, Zywicki tried to beat a hasty retreat, suggesting that his real argument was that a wall of separation was not "what the founders in general understood the Establishment Clause to mean."  And to Zywicki's credit, that point is almost certainly much more defensible.  However, it's not Zywicki's original assertion.  And Will Baude, like a shark after blood, pounced on the retreating Todd Zywicki, noting that -- whatever the merits of Zywicki's revised assertion --

That's not actually what Zywicki's post purported to be about-- the question was who "Came up with" the wall metaphor. The answer is that Jefferson came up with it, Chief Justice Waite adopted it in the 1870s, and Hugo Black dragged it into the sunlight for its modern revival. The New York Times is right on the specific point.

Other commenters are intervening and suggesting alternate tacks, such as emphasis on the Times' questionable pluralization.  Those may prove enough to salvage a bit of respect for Zywicki.  But so far, he has been decisively outmatched in this argument by his law student foe.  (And Dan, Hillel, Dave -- remind me not to pick a fight with Will Baude!)

An inconsistency that's not inconsistent

Over at Volokh, David Bernstein criticizes plaintiffs' attorney Barry Nace for a perceived inconsistency.  Bernstein writes that Nace defended a malpractice lawsuit by arguing, inter alia, that he

wasn't liable to the client because 'courts soundly and uniformly reject the notion that Bendectin causes birth defects.'  Two years later, Nace told the New York Times that he still believes that Bendectin causes birth defects. I guess he forgot to tell his lawyer.

Bernstein suggests that Nace's two statements -- that courts reject Benedictin cases, and that Nace believes that Benedictin causes birth defects -- are inconsistent.  (Hence the snarky "I guess he forgot to tell his lawyer").  But Bernstein is missing the obvious.  The two statements "courts think X" and "I personally believe not-X" are in no way inconsistent.  It's puzzling how Bernstein could even confuse these two arguments.

Indeed, the very New York Times article to which Bernstein links makes clear that Nace's personal views differ from his legal opinion on the legal merits of the cases.  (For a malpractice suit, it's the legal merits that matter).  The article quotes Nace as saying "this is the safest drug in terms of litigation" and that the Benedictin litigation is "hopeless."  It later quotes Nace saying "In my mind, there is no question that Bendectin causes birth defects." (emphasis added).  Sounds pretty consistent to me.

Of course, there will always be room for disagreement on the merits of the Benedictin cases.  But Bernstein seems quite wrong to suggest that Nace's two statements are inconsistent, when they are in fact very easy to reconcile.  And it seems unwarranted to suggest that Nace "forgot to tell his lawyer" about his personal views. 

(Can you imagine that conversation?  Nace:  "By the way, I personally think that Benedictin causes birth defects.  Does that change this summary judgment motion any?"  Lawyer:  "Nope."  Nace:  "Didn't think so.  Just checking.")

Hybridization

In my new role as Prawfsblawg's car critic, I am pleased to have the opportunity to respond to Dan and rate my Toyota Prius, having just driven it about 3,000 miles.  In short, everyone should get one (assuming, of course, you don't already have one--there are about 30 in the few blocks near my new place in San Francisco--and that you can get one without stealing one--they are on back order and are hard to come by).

One gets about 46-50 miles per gallon.  Really.  On the highway and in the city.  Truly amazing.  And I promise you this saves you a fortune in gas money--and quickly.  Its GPS system is pretty neat too.  Admittedly, the tank is a bit small by current standards (11.9 gallons--and it registers empty at 8, which is  absurd since you can go nearly 200 more miles before really running out of gas); but you cannot forget everytime you are filling up that you are saving substantially.  And the car isn't especially expensive in the first place.  The ticket price would strike you as very fair.

It isn't the fastest car in the world and can lag at 80 mph.  Still, it is quiet (another side benefit of going to electric power) and gets the job done.  Parking lots and valets need some instruction in how to use a car with a power button rather than a traditional key--and that can be annoying.  You won't win any races (or parking competitions because it is bigger than you think and harder to park than one would imagine); but you can feel good that your self-interest is aligned with the best interests of national security and national energy policy.  Two thumbs up.  Way up.

Now, instead of thinking about whether Rehnquist is going to step down, whether there is any real "non-infringing use" of Grokster's service, or whether Establishment Clause jurisprudence will ever make sense, do download my newest paper, recently accepted at Law and Philosophy.  That will give you a sense of what I do when I am not going to conferences or blogging about cars.  And unlike my book (which you only need to pay $11.00 for at Amazon), the paper is free at SSRN.