Saturday, June 13, 2015
Aggregate Agency Adjudication
At Yale's Journal on Regulation, Chris Walker highlights our project on Aggregate Agency Adjudication with the Administrative Conference for the United States. Michael Sant’Ambrogio and I are studying agencies that experiment with class actions, trials by statistics, and other aggregate litigation techniques to resolves lots of cases in their own courts. As we discuss in The Agency Class Action, 112 Colum. L. Rev. 1992 (2012), agencies don't do this very often. And there are lots of reasons why. But, we want to see if agencies can use aggregate adjudication along with other tools -- rulemaking, informal guidance, stare decisis and ADR -- to resolve cases more effectively.
I've already described Medicare's new pilot plan to use "trials by statistics" to alleviate its 500,000+ case backlog. So, here's another example: the National Vaccine Injury Compensation Program. Congress created this program in the 1980s to provide people injured by vaccines with a no-fault alternative to lawsuits in federal court. In theory, an "Office of Special Master" must decide whether to compensate someone in 240 days based on a showing that the vaccine caused the injury. But see Nora Freeman Engstrom, A Dose of Reality for Specialized Courts: Lessons from the VICP, 163 U. Pa. L. Rev. _ (forthcoming 2015) (finding, among other things, that it takes longer than that). Many claims proceed one at a time, like most benefit programs. But when over 5,000 parents claimed that a vaccine additive, called Thimerosal, caused autism in children, the Vaccine Program used three “omnibus proceedings" to pool together all the individual claims that raised the same highly contested scientific questions in front of just three adjudicators. As it happens, the Vaccine Program has used coordinated proceedings like this for more than 20 years.
Even though the Act that created the vaccine program contains no provision for class action suits or anything like it, the program developed the concept of the omnibus proceeding on its own because the "same vaccine and injury often involve the same body of medical expertise." Counsel representing large groups of individual claimants often use an omnibus proceeding to answer questions of "general causation," like whether a particular vaccine is capable of causing a specific injury. The issue of whether it did so in a specific case can then be resolved more expeditiously. I'll provide a few more details about this process below, but can you think of other agencies that assign large groups of individual similar cases to the same adjudicator for similar reasons? What are strengths and weaknesses of this kind of approach?The Vaccine Program uses two types of omnibus proceedings. The first involves common vaccines and injuries--applying evidence developed in the context of one or more individual cases to other cases involving the same vaccine and the same or similar injury. See, e.g., Capizzano v. Sec’y, HHS, 440 F.3d 1317 (Fed. Cir. 2006). The second involves hearing evidence on a general theory of causation--like does a rubella vaccine cause chronic arthritis or other categories of joint problems? The special master makes findings based on that evidence and orders the parties to file papers establishing the extent to which the facts of individual cases fit within the courts general findings. See, e.g., Ahern v. Sec’y, HHS, No. 90-1435V, 1993 U.S. Claims LEXIS 51 (Fed. Cl. Spec. Mstr. Jan. 11, 1993). For example, counsel representing a large number of petitioners and counsel for respondent may file expert reports and medical journal articles to support the theory that the rubella vaccine is associated with chronic arthritis. The special master then (1) conducts a hearing in which the medical experts testify, (2) publishes an order setting forth the conclusions, and (3) files it in each of the rubella cases. If he finds sufficient evidence that the rubella vaccination could cause chronic arthropathy under certain conditions, he may order individual petitioners seeking compensation to establish those conditions in a separate filing.
According to one special master, however, most omnibus proceedings work like bellwether trials in federal district court--organizing individual cases that raise similar issues in front of the same adjudicator, in the hopes that a big outcome settles aspects of the remaining cases:
Most omnibus proceedings ... have involved hearing evidence and issuing an opinion in the context of a specific case or cases. Then, by the agreement of the parties, the evidence adduced in the omnibus proceeding is applied to other cases, along with any additional evidence adduced in those particular cases. The parties are thus not bound by the results in the test case, only agreeing that the expert opinions and evidence forming the basis for those opinions could be considered in additional cases presenting the same theory of causation.
The use of the omnibus proceeding is thus less binding than the "all-or-nothing" approach of the class action. But there are some drawbacks. First, some agencies, even if they wanted to, may not be able to adopt omnibus proceedings like the Vaccine Program. Many agencies use administrative law judges, who are assigned randomly to each individual case to minimize bias and to prevent gamesmanship. Second, omnibus proceedings raise interesting questions about the legitimacy of using an adjudication process to settle complex scientific questions. Not only were many plaintiffs in the autism proceedings anxious about commencing cases together, so were members of the public heath community, who "found it unsettling that the safety of vaccines must be put on trial before three "special masters"" in an obscure vaccine court. Said one: "the truth about scientific and medical facts is not, ultimately, something than can be decided either by the whims of judges or the will of the masses."
To be fair, however, those concerns aren't unique to mass litigation, or for that matter, agencies that rely on rulemaking procedures, scientific panels, or even, the Center for Disease Control to resolve tough scientific questions. And, in the case of vaccines and autism, a significant test for the limited resources of the vaccine program, at least some found that the ability to hear common cases together led to deliberations that represented a "comparatively neutral exhaustive examination of the available evidence." But such concerns still raise the question about the best way to efficiently and consistently pool information about many common claims without sacrificing legitimacy, compromising due process, or magnifying the risk of error.
Monday, June 08, 2015
The Bellwether Settlement
A curious thing is happening in a Bergen County court in New Jersey. A set of trials scheduled to go forward this summer were resolved through an unusual settlement process. In a case that involved more than 3,000 defective hip-implants, the parties reached a $1 billion global settlement in record time, using what the court described as an unprecedented series of "bellwether settlements."
By way of background, courts have used "bellwether trials" for a long time to resolve large numbers of similar lawsuits. In a bellwether trial (or trials), the parties select a small group of cases for jury trial out of a large group of similar claims. A steering committee of plaintiff and defense counsel then use information gleaned from trial outcomes to resolve the remaining cases. Bellwether trials have been used to resolve many high profile cases--perhaps most famously in the Vioxx litigation against Merck and, most recently, in GM's litigation over its defective ignition switches.
But instead of "bellwether trials," the court facilitated a system of "bellwether settlements." That is, rather than use juries to decide the merits and value of certain cases, the parties--supervised by the court, magistrates and special masters--relied on a structured sample of 21 mediations involving typical plaintiffs to forge a global settlement. It was hoped that the different settlement outcomes, much like a bellwether trial, would offer the parties crucial "building blocks"--providing critical information about how to globally resolve the remaining cases. And Judge Martinotti, the New Jersey judge designated to handle all of the cases, was incredibly successful. The process not only resolved more than 2,000 lawsuits in New Jersey state court, but another 1,000 pending lawsuits in federal multidistrict litigation, all in one fell swoop.
A few thoughts beneath the fold.
I suppose many bellwether trials are really bellwether settlements in disguise. Many of the cases that parties select as the "bellwether," as it happens, end up settling on the eve of trial. And because counsel in multi-district litigation share information, when enough cases settle, the parties learn how to structure a global settlement. So, here the court just chose to proceed based on the not-altogether-crazy idea that no case would reach a trial on the merits. But the court's complete embrace of a "bellwether settlement" scheme raises interesting questions. What do "bellwethers" mean when the procedures and outcomes lack any connection to the decisions a jury might reach?
Most proponents of bellwether trials often assume some role for a jury in resolving a complex dispute. First, bellwether trials provide a "dress-rehearsal" for other jury trials likely to come in a large case by helping parties hone their evidence and their arguments. Second, a bellwether jury verdict assures that any eventual settlement bears some relationship to the merits of the dispute. Third, the prospect of a jury trial in complex litigation wards off the threat of collusion and assures that the plaintiffs' counsel have sufficient bargaining strength in settlement negotiations. Cf. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 621 (1997) ("Class counsel confined to settlement negotiations could not use the threat of litigation to press for a better offer... and the court would face a bargain proffered for its approval without benefit of adversarial investigation"). Fourth, a bellwether jury serves an important democratic function with deep roots in the history of American adjudication--providing bulwark against unelected judges who may harbor biases about what makes for a fair global resolution.
By dispensing with the jury entirely, bellwether settlements risk all of these important benefits. But you could argue they have other advantages. According to Judge Martinotti, the process yielded important information about claims, remedies and strategies that parties often would not share in preparation for a high-stakes trial. First, although bellwether trials provide a good way to measure how random members of the community value common claims, they don't necessarily help counsel learn how random beneficiaries of a global settlement will value those same things. When the end-game is a global settlement, a focused sampling of arms-length negotiations could help counsel better identify solutions from the ground up.
Second, bellwether settlements also avoid the problem of outlier or clustering verdicts--unexpectedly high or lottery-like jury awards that are difficult to average and threaten the chances of a more global settlement. See Alvin K. Hellerstein, Managerial Judging: The 9/11 Tort Responder Litigation, 98 Cornell L. Rev. 127, 161-163 (2012)("at most, [bellwether trials would] have brought about settlements in individual claims or small clusters of claims, [but the] parties would not have had sufficient information to effect a wholesale global settlement."); Brian R. Martinotti, Complex Litigation in New Jersey and Federal Courts,44 Loy. U. Chi. L. J. 561, 575 (2012) ("[I]f the parties and counsel are in the midst of successful settlement discussions, a bellwether trial that results in a verdict outside the range of settlement—i.e., an outlier—may empower a party to go forth with the litigation and cause negotiations to break down.")
Finally, many leading members of the steering committees claimed that the structured mediations built "trust" among counsel in ways that don't easily occur until much later in multi-district litigation.
Bellwether settlements are part of a larger long-term trend taking place in the American courthouse. As public courts export more cases to private dispute resolution--like mandatory arbitration--they also have imported values from ADR to find new ways to creatively resolve disputes, using court-annexed arbitration, special settlement masters and magistrates, and "problem solving" courts. See Judith Resnick, Diffusing Disputes: The Public in the Private of Arbitration, the Private in the Courts, and the Erasure of Rights, 124 Yale L.J. 2084 (2015)(describing policies that "press trial-level judges to become conciliators, to deploy other individuals as “neutrals” to mediate or to arbitrate in courts, and to outsource decision making to the private market"). The result may be solutions that promise more speed, input, legal access, and as some have described, "paths to justice" than traditional trials.
But the challenge is to determine what role our courts should play when large cases and "vanishing trials" push them to move outside their traditional public role as adjudicators--hearing adverse claims, supervising controlled fact-finding, and interpreting law. Judge Martinotti continues to play that traditional role in many complex cases. But like other judges in complex litigation, here his role seemed more like a public broker in a complex settlement marketplace--helping the parties set ground-rules and open the lines of communication to encourage people to enter into valuable contracts, exchange information about them, and in the process, and build trust necessary to forge a much larger, global settlement.
Tuesday, December 30, 2014
With the increasing number of law school graduates entering “alternative legal careers,” the question continues to surface as to whether taking a bar exam is necessary for a successful career in the law. There have been studies about those who took a swing at the bar and failed, but little has been written about those who have never stepped up to the plate. There are a few articles here and there with advice for those who may wish to opt out, but not many. Yet another consideration is the large number of former lawyers who took the bar and later decided not to practice. This figure includes many, if not most, law professors. Is taking the bar for everyone, and would law schools maintain the same focus on its importance were bar passage excluded from counting toward accreditation or rankings?
Tuesday, December 23, 2014
Eye of the Beholder
Historically, case law has been hesitant to define what constitutes “art.” However, with respect to what constitutes “pornography,” we all know the infamous Supreme Court line, “I know it when I see it,” as well as the discussion of the topic in this case and Justice Thurgood Marshall’s opinion here. All of this being said, I am reminded of a painting that I once saw in a law professor’s office. It was of a nude woman, clearly artistic, and certainly not pornographic. Yet, I imagine that some students and other visitors were likely uncomfortable with it. A personal office that is part of a larger professional environment may thus not be the best location for such displays, and courts are weighing in. Should some art be off limits in the office – even in law schools?
Thursday, December 04, 2014
Tone Deaf (or Deft)?
I wonder if fledgling law students still watch films like “The Paper Chase” to see what to expect from the law school experience. Certainly, there are more modern examples, but all tend to include frightening faculty who, these days, might be viewed as uncivil, particularly with respect to their tones, mannerisms, and treatment of students. Sometimes, these images have their very real counterparts. I have known of actual professors who prided themselves on mirroring Professor Kingsfield. To be sure, the Soccratic method has its place, but I sometimes wonder whether students learn to treat words and questions as weapons in law school, or, conversely, whether law school may attract those who like to argue.
With recent discussions of the importance of civility within the practice of law, just where (if anywhere) can anything but the sweetest of tones be inserted? Are lawyers allowed to raise their voices and argue fervently anymore, or are we instead expected to immerse all professional disagreements in a bath of saccharine pleasantry that appears insincere in spite of its veiled civility? Where is the balance between civility and healthy (but heated) debate?
Friday, October 24, 2014
The push for quantity
Zak's post, Howard's post, Bridget Crawford's post, and Orrin's post and the comments to them pose some questions and some answers about the quantity of publications law professors and candidates for teaching positions have. Underlying these is a tension about tradeoffs between quantity and quality and concerns about the source of the pressure to produce. I would even go farther than any of them, and suggest there is something of an arms race afoot that we ought to be concerned about. Based on my experience as a VAP and on the hiring committees of two schools, I also think there are reasons in addition to those already suggested for that arms race, and I'll list them in no particular order. There is a lot of overlap among these, but I use a list for convenience (quantity over quality).
1. Labor market competition. There aren't very many desirable positions available in any given year. Something like fewer than 10% of those who apply through the AALS (which is the only easy place to track hiring stats) are successful, and especially as faculties are shrinking, the market is only getting tighter. Given that scarcity, candidates need to be ever more accomplished to even be considered.
2. Publications are the coin of the realm. Most, even if not all, law schools use scholarship (defined relatively narrowly) as a central criterion for evaluation of law professors. This might be because the universities law schools are a part of consider scholarship to be the hallmark of an academic discipline and so put significant pressure on their law faculties to demonstrate that they are academics rather than practitioners. It might also be because U.S. News, by giving so much weight to faculty peer evaluation, creates an incentive for more scholarship. In addition, because the focus on scholarship and "productivity" have been part of law school culture for a fairly long period of time, law faculties take for granted the central importance of publishing--and tend to expect more and more of their newer colleagues as a matter of course.
3. Tenure has weird effects. The meaning and value of tenure is subject to serious debate right now, and I don't intend to make any value statements in this post. That said, job security of any kind is unusual in the U.S. system of employment, and so requires special justification to exist at all. Tenure is thought to be a way to protect academic freedom--the ability to say unpopular things--that helps ensure that as much data and full debate can happen as a way to contribute to knowledge. Scholarship is seen as the justification for tenure, and also, then, the consideration for tenure. And because it's the quid pro the quo of tenure, schools want to ensure that even after tenure, professors continue to contribute to knowledge through scholarship. What better way to predict future productivity than past productivity? It's kind of like content validity of employment testing--the best predictor of job performance is the chance to perform a sample of the job for a period. And because denying someone tenure means essentially firing them, and maybe ending their career at least as a teacher, no one wants there to be any question about whether tenure will be awarded. So, the pressure to demonstrate future productivity moves to the point of hire (or even before, ever earlier) to ensure no problems in achieving tenure later.
4. Quantity as equalizer. One of the commenters noted that it's easier to count than to evaluate quality, and this is especially true across disciplines. But that is not the only way that quantity is used as an equalizer. Hiring decisions are based on proxies for qualities schools think are valuable--merit badges, in the words of my friend Brannon Denning (as noted by John Nelson in this comment to a thread on the nontradition JD candidate). Traditional badges of merit have been the ranking of the law school one went to, class rank, membership on law review, clerking for a federal judge or possibly a state supreme court judge, and short experience in a big firm. They are almost literally stamps of approval by some other person who has judged the intelligence or abilities of the candidate. Because of the system of student-edited law reviews (and the number of outlets for publication), those of us without those merit badges have the opportunity to make our own by engaging in the conduct that law faculties say they value. And that conduct is much more within our own control. That pushes those even with the merit badges to also engage in that conduct to remain competitive. It also gives a more diverse group of candidates access to opportunity. Finally, it allows law faculties to rely on what looks like a more objective measure of candidate quality.
5. Increasing requirements in faculty evaluation. Schools continue to increase the number of publications as a requirement for tenure. At one time, a single work in progress was enough in some schools for a person to be awarded tenure. Now, the expectation seems to be 1-2 articles published per year. And those expectations are being "codified" into tenure and review requirements.
6. Technology. This may sound trite, but it is simply so much easier to produce and disseminate our writing that we do it a lot more. The advent of the word processor spawned a revolution in the length and number of briefs filed in cases and the length and number of court opinions. It just became so much easier to draft and revise writing that writing proliferated. The ability to transmit that writing via the internet spawned another revolution. Access to readers and avenues for writing meant more of it.
Working all together, these create a lot of pressure to publish early and a lot.
Thursday, October 02, 2014
What Do We Talk About When We Talk to the Media?
One of the fun things about being a law professor is talking to journalists. Even as a junior professor, one will often have the opportunity to comment in the news media, especially if one writes in a timely area or lives in a city with a decent media market. It's also important. Professionally, one might spend two years writing a piece which redefines the theory of, say, tort law, to be rewarded with 89 readers on SSRN. But in a 15 minute interview with a major or even local media outlet, one can generate immense positive attention for a law school and an affiliated university. From a mission standpoint, moreover, one of the things law teachers can do is educate the public about legal rules and institutions, and the public reads the news a lot more enthusiastically than it does 450-footnote articles.
Below are a few thoughts about talking to the media -- not meant to be exhaustive by any means, in keeping with the "tips" theme of some recent posts:
1. Talk in sentences: Advising student writing, whether in the form of legal memos or law review Comments, we teach our students to write in paragraphs. The media isn't interested in paragraphs. At most, a journalist will quote a few sentences of your thoughts. While you don't have to limit yourself to soundbites, you're unlikely to have more than even a few sentences quoted even after conducting a 20 minute interview.
2. It's not your story: I've seen a few professors complain over the years about being quoted out of context. If you're worried that you won't be able to give the complete law professor answer, "it depends...", then you shouldn't talk to the media. Once you hang up the phone, it's out of your hands. The good news is that you can always elaborate or clarify on your own blog, or on your Twitter feed. Thanks to Twitter, these days we're all insta-pundits. So save the full explanation for a different venue.
3. Be right most of the time: The best way to get a repeat call from a journalist, or have her refer you as a source to a colleague, is to be right most of the time. If you can accurately predict, say, the outcome of a labor dispute, then you're far more likely to get a follow up call for a future story. In scholarship it may be that being interesting is more important than being right, but that's not usually what interests journalists.
4. Air quotes don't show up on TV or the radio: I recently gave a 30 minute interview to a local TV channel. I summed up a somewhat confusing explanation by saying, with visible air quotes, that "my 'expert assessment' is..." Of course, the video clipped out my air quotes. It would be funny if I actually talked like that, but when my mom watches the .wav file it sure looks like I do.
5. Keep a jacket in your office: Not everyone boasts a Serious Professor Goatee that's worthy of Joe Slater. And sometimes we show up to work, particularly when writing in the summer, in plastic pants. Amazingly, one can don a lawyer costume from the waist up in a matter of moments. I don't want to veer into this blog's alleged sartorial obsession, but it's handy to be able to look the part when an unexpected opportunity arises.
6. A wire service is worth a dozen interviews: It's super cool to know what you sound like in Croatian. If you are lucky enough to comment in a story for Bloomberg, AP, or Reuters, particularly one with international application or interest, you can find yourself quoted in dozens of papers, including many overseas.
7. You know more than you know: There are of course reporters who cover legal issues exclusively, or are lawyers themselves, and they may know as much or more law than you do. But many reporters are really looking for someone who has legal training to respond to an emerging development, not for the world's leading expert. You need not have written a treatise on an issue to be able to add some value. Free of the conflicts arising from having to represent clients, with a little bit of legal research you can often help a reporter unpack legal issues and translate our professional "-ese" with ease. It's okay to take a few minutes to read up on some issue before offering to talk to a reporter.
8. TV will cancel your interview if Gary Bettman is available: I've had more than a few TV stations call to see if I could rush down to the local affiliate (after rushing home to change out of my plastic pants) to appear on some show or other via satellite uplink. And then, as I don my professor costume furiously, they call back to cancel because the commissioner of the league the story is on wants to appear instead.
9. Answer your phone: The best way to get a media opportunity is to be responsive, both to telephone calls and emails. For me, the reporter most likely called McCann and Feldman and only got to me because they were booked or couldn't comment due to other obligations. But even if I'm not the first person they call, if I answer the phone or respond within a few minutes to an e-mail, I'm more likely to be the one they use for an interview than the next person down on their list.
Friday, June 27, 2014
The Supreme Court Reads Law Reviews
Every now and then, law reviews take heat for being not just turgid and boring but useless as well. Given that widespread lament, it's worth noting how frequently recent Supreme Court opinions have been drawing on law reviews -- and I'm not just talking about yesterday's cite to a certain Professor Elena Kagan.Here are a few salient examples of law review cites, from both majority opinions and separate writings:
- McCullen v. Coakley cites Kagan, McConnell, and Tribe.
- NLRB v. Noel Canning extensively cites Hartnett, Rappaport, Natelson, O'Connell, and Bradley & Morrison.
- Riley v. California cites Amar, Kerr, and Stuntz.
- Halliburton v. Erica P. John Fund cites Langevoort in considering whether "academic debates" had "refuted" a seminal precedent (answer: no), and Justice Thomas's concurrence in the judgment surveyed the relevant literature, with cites to about a dozen law reviews.
- Bond v. United States extensively cites Rosenkranz, Golove, Bradley, Bradley & Goldsmith, Calabresi & Prakash, Baude, and MacKinnon.
This list is under-inclusive in several respects -- including because, in all likelihood, I missed some journal cites even in the handful of cases I looked at. In any event, the list makes the point: the Court regularly finds law reviews to be not just useful, but useful in a way that shows up in the final published opinion.
I don't want to exaggerate the point. Some of these cites may be merely ornamental, for instance. And I doubt that the justices page through every journal that they cite. Still, the Court's regular recourse to law reviews shows that the genre remains a valued part of the intellectual environment in which the justices render their decisions.
Attracting the judiciary's attention isn't the sole or even paramount mission of law reviews. But it's still an important one -- and, to a considerable extent, it's getting done.
The above is cross-posted from Re's Judicata.
Friday, April 05, 2013
Happy Anniversary to ... Us!
Today marks 8 years since PrawfsBlawg has been around. We oldsters can take a trip down memory lane over here. There's even a recommendation by Paul for a music group called Hem, which he again just "pushed" on me after I was needing rejuvenation from the Lumineers. In any event, reading our collective work product from eight years ago is weirdly fun. But I'm glad that eight years on, I, like so many of us who are still around in the bloviosphere, feel liberated from the once tyrannical anxieties about page views, links, and trackbacks. Sheesh. What narishkeit.
Thanks, as always, to the writers and readers who make this place special. See you 'round these parts soon.
Tuesday, June 12, 2012
Are All Citations Good Citations?
There’s a saying in the public relations field that “all press is good press.” The main premise is that, regardless of positive or negative attention, the ultimate goal is to be in the public eye. Does this same concept extend to legal academia? When our work is cited, but somehow questioned for its accuracy, merit, or value, is that better than not being cited at all?
Thursday, November 17, 2011
Yesterday, the House of Representatives held hearings on the Stop Online Piracy Act (it's being called SOPA, but I like E-PARASITE tons better). There's been a lot of good coverage in the media and on the blogs. Jason Mazzone had a great piece in TorrentFreak about SOPA, and see also stories about how the bill would re-write the DMCA, about Google's perspective, and about the Global Network Initiative's perspective.
My interest is in the public choice aspect of the hearings, and indeed the legislation. The tech sector dwarfs the movie and music industries economically - heck, the video game industry is bigger. Why, then, do we propose to censor the Internet to protect Hollywood's business model? I think there are two answers. First, these particular content industries are politically astute. They've effectively lobbied Congress for decades; Larry Lessig and Bill Patry among others have documented Jack Valenti's persuasive powers. They have more lobbyists and donate more money than companies like Google, Yahoo, and Facebook, which are neophytes at this game.
Second, they have a simpler story: property rights good, theft bad. The AFL-CIO representative who testified said that "the First Amendment does not protect stealing goods off trucks." That is perfectly true, and of course perfectly irrelevant. (More accurately: it is idiotic, but the AFL-CIO is a useful idiot for pro-SOPA forces.) The anti-SOPA forces can wheel to a simple argument themselves - censorship is bad - but that's somewhat misleading, too. The more complicated, and accurate, arguments are that SOPA lacks sufficient procedural safeguards; that it will break DNSSEC, one of the most important cybersecurity moves in a decade; that it fatally undermines our ability to advocate credibly for Internet freedom in countries like China and Burma; and that IP infringement is not always harmful and not always undesirable. But those arguments don't fit on a bumper sticker or the lede in a news story.
I am interested in how we decide on censorship because I'm not an absolutist: I believe that censorship - prior restraint - can have a legitimate role in a democracy. But everything depends on the processes by which we arrive at decisions about what to censor, and how. Jessica Litman powerfully documents the tilted table of IP legislation in Digital Copyright. Her story is being replayed now with the debates over SOPA and PROTECT IP: we're rushing into decisions about censoring the most important and innovative medium in history to protect a few small, politically powerful interest groups. That's unwise. And the irony is that a completely undemocratic move - Ron Wyden's hold, and threatened filibuster, in the Senate - is the only thing that may force us into more fulsome consideration of this measure. I am having to think hard about my confidence in process as legitimating censorship.
Cross-posted at Info/Law.
Posted by Derek Bambauer on November 17, 2011 at 09:15 PM in Constitutional thoughts, Corporate, Culture, Current Affairs, Deliberation and voices, First Amendment, Information and Technology, Intellectual Property, Music, Property, Web/Tech | Permalink | Comments (9) | TrackBack
Tuesday, November 01, 2011
Classroom Debates on Sensitive Topics
Thanks to the PrawfsBlawg folks for allowing me to join them again. I thought I'd start by discussing a teaching technique that I've found useful for covering sensitive cases in a large class. I teach constitutional law, and students sometimes hesitate to talk a lot about topics such as abortion and affirmative action. This is unfortunate because they undoubtedly have many ideas to share. I therefore solicit four volunteers about a week in advance. I divide them into teams of two. One team has the job of attacking the core holding of a controversial Supreme Court case (say Roe v. Wade). The other team must defend the case. In addition, one person on each team is supposed to focus on legal doctrine, and the other person is supposed to focus on "policy" arguments.
At the beginning of the designated class, each team of two sits at a separate table in front. I let the class know that each team is playing a role, so there should be no automatic assumption that the debater is voicing their personal views. The attacking team then goes first. Each speaker on that team makes their arguments against the case for 5-7 minutes to the class. Hopefully, they make things interesting right away. Then the other team responds with each speaker getting 5-7 minutes. After that, I allow the teams to debate each other directly for a period. During this whole time, I'm sitting somewhere in the classroom with the students. Once the debating has died down, I let students in the class raise their hands and ask questions or raise issues with the debaters. What almost always ends up happening is that the students have a very instructive conversation about different aspects of the case and the bigger issues. They basically teach each other. I just play referee occasionally. Usually the students also end up saying some funny things which breaks the ice. In the next class, I may discuss a few issues that were not covered. I encourage folks to try something like this if you think it might be suitable. I would also enjoy learning if others do something similar to handle sensitive questions.
Tuesday, June 07, 2011
Is deliberation overrated?
I'm not saying that deliberation is necessarily overrated, but I'm starting to wonder about its relative value. In recent years I've read a number of books and articles on the decision making processes of groups such as James Surowieki's The Wisdom of Crowds (2005) and Cass Sunstein's Infotopia: How Many Minds Produce Knowledge (2008), and found them to be very interesting and insightful. Both of these books at least suggest the possibility that group decision making may not always be better with group deliberation.
Of course, to suggest that something is 'overrated' typically implies that it is somewhat highly rated in the first place. When I look around, I see deliberation everywhere - government decisions, academic committee decsisions, tenure decisions, where to eat lunch, jury outcomes, Supreme Court outcomes (ok, only to a degree on that one). I think it's fair to say that deliberation is cherished in this country. But is it all that it's cracked up to be? What are its attributes? How do we evaluate its worth (relative to other systems)?
For a bit of class fun last semester, I tried a class exercise that was suggested by one of my readings on this subject.I divided the class into three groups of equal size: 1) The deliberation group, 2) The secret vote group, and 3) the list vote group. I then held up for the class to see (all had roughly equal views) a glass container of paper clips. They were able to view the container for 30 seconds. I then asked the groups to decide how many paper clips were in the container. The secret ballot group was to do just that - each person would make a guess, write it down in private and their estimates would be averaged. The list group would use a list - the first person to decide would write their estimate on the top of the list and then the estimates would go from there (everyone could see the prior estimates)- and they were averaged. The deliberation group deliberated on the best estimate and used a consensus decision rule on the number of paper clips.
The results? The best estimate was by the secret vote group, followed by the list group, and the worst estimate (by far) was by the deliberation group. Of course, this little exercise is hardly ready for scientific peer review and was done primarily for fun and to introduce the class to varying decision methods. However, given the prevalence of deliberation in our society, might it give us pause to think about whether it's 'overrated'? I'm not sure. Certainly there are other considerations at issue (e.g. how the process makes participants feel). But I thought I'd see what Prawfs readers thought.
Posted by Jeff Yates on June 7, 2011 at 11:58 AM in Criminal Law, Deliberation and voices, Games, Judicial Process, Law and Politics, Legal Theory, Life of Law Schools, Science, Teaching Law | Permalink | Comments (3) | TrackBack
Tuesday, March 01, 2011
It's March 1, and so we have thanks to extend to our wonderful, just wonderful, group of February bloggers, some of whom will be staying on to get some remaining posts finished. And we must also welcome a group of new and returning voices to the Prawfs cabaret. Joining us for the first time we have Dan Rodriguez, the former dean of USD law school who is now at Texas (though this semester at Columbia LS), and Ari Waldman, who teaches at CWSL in San Diego. Hmm, unwitting San Diego connections there. Anyway, we also have Jeremy Blumenthal returning from Syracuse, Adam Kolber at Brooklyn (though formerly of San Diego), Chad Oldfather (from Marquette) and the inimitable Michael Waterstone from Loyola LS in LA. Welcome all.
On a sad note, I regret to inform readers that Peter John Gomes, one of America's great and distinctive voices, passed away last night. One of my favorite Peterisms was his penchant for referring to professors and preachers as people who earn their daily bread by the sweat of their jawbones. I still remember his senior sermons urging us to seek passion in whatsoever our hands find worthwhile and to find serenity as a form of stability in the absence of security. His passing, at the age of 68, is unspeakably sad. He was a beacon of joy and a fount of insight and laughter. I will miss him terribly. May his memory be a blessing for all those who learned from and loved him.
Tuesday, February 22, 2011
Is "Intellectually Vacuous" the Right Expression for Veil-Piercing Doctrine?
Over at his blog, Steve Bainbridge endorsed a view, inspired by comments from Steve Bradford (Nebraska) at Business Law Prof Blog to the effect that every time he got to teaching "veil-piercing," he was reminded again how "intellectually vacuous" the doctrine was.
I sympathize. I have the same reaction when I teach veil-piercing. Why? It's the tempest in a teapot problem that affects much of what commercial and business lawyers learn in school, on one hand, and what they practice, on the other. Were you inside the teapot of an idiosyncratic case that ends up as an appellate decision on veil-piercing, it would seem like a Category 5 hurricane. You read five or six cases with outrageous facts and try to reconcile how the doctrine for why corporations legitimately exist (individual use them to shield themselves from liability) is exactly the same as the doctrine under which individuals can be tagged (individuals used them to shield themselves from liability). Blow winds and crack your cheeks, rage, blow! But piercing cases are rare, idiosyncratic, and usually marked by some outrageous conduct that makes the decision, in retrospect, not particularly surprising.
But I disagree that the proper description of the problem is intellectual vacuity. The problem is trying to reduce to propositions something that propositions can't reduce. I've been teaching first year contracts and I've encountered this same "vacuity" problem every time the standard is "justice" (as in promissory estoppel), unconscionability, or mistake. Analogical reasoning doesn't work because it is inductive analogy - the cases are supposed to describe a rule - rails in a Wittgensteinian sense - that point you to the next result, and there are no rails, or there are too many rails, or they aren't parallel (metaphorically speaking). The better way to approach this is to understand that (a) we have a non-propositional conception of the prototypes of corporate legitimacy and corporate legerdemain, (b) the prototypes sit in polar opposition on a continuum, and (c) the rationalizing propositions follow the non-propositional and intuitive metaphoric leap from the specific case before us to a prototype. Another in my series of Venn representations of this kind of polarity is at left - this on unconscionability.
Shameless self-promotion alert: I discuss this cognitive process at length (giving credit where credit is due - I didn't make this stuff up) in three recent papers: Metaphor, Models, and Meaning in Contract Law; The Financial Crisis of 2008-09: Capitalism Didn't Fail But the Metaphors Got a "C" (Minn. L. Rev., forthcoming), and The Venn Diagram of Business Lawyering Judgments (46 Seton Hall L. Rev. 1 (2011), forthcoming).
Friday, February 04, 2011
Interdisciplinary Angst? - A Response to Boyden
I started to write a comment to Bruce's very interesting post, but it started to get long and then I realized I'm a guest blogger.
There are probably a dozen books, not all of them necessarily well known, that have had a fundamental impact on my thinking. One of them was a little piece by a organizational behaviorist by the name of Barry Johnson, entitled Polarity Management. The thesis is that some problems are only manageable, not solveable. The hallmark of such problems is that they demonstrate a conflict between interdependent but mutually exclusive polar values, each of which has an upside and a downside. A good example in a business organization is the polarity of teamwork versus command-and-control. Teamwork's upside includes buy-in, energy, synergy of ideas, innovation. Its downside is its lack of speed, bureaucracy, "camel" creation. At the other end of the polarity, command-and-control is alienating and often bereft of esprit, enthusiasm, but it is decisive and clear. Moreover, organizations show a tendency to move from the downside of one value by adopting the other, taking the benefits of its upside until the ill effects show up and then repeating the process to the other end of the polarity (over and over and over). (I saw this when "Total Quality" showed up in the early 90s to replace hierarchical management - you couldn't change the brand of coffee in the break room without a brainstorming session. So there was the counter-revolution.) The trick is to manage the polarities, not solve them.
When we talk about any professional or academic discipline, we are talking about a construct that is some mix of concept and social organization. There is no reason to think that the disciplines that have spun off from philosophy over the last 150 years cut nature at the joints (as some people are want to say). Or to put it another way, "independent discipline" compared to what? The "problem," if it is one, of disciplinary boundaries involves the interdependent but mutual exclusive values of (a) professional certification and authority (note the irony of my including a bibliography below, by the way giving weighty authority on interdisciplinarity) versus interdisciplinary exploration, and (b) deep and focused study versus creativity and innovation. It seems to me what leaders of academic institutions ought to be doing is managing the polarity rather than seeing it as a problem to be solved. It's obvious that there's huge value in both deep doctrinal competence and cutting edge weirdness (neuroeconomics, as a case in point). Against the downsides, respectively, of stultification and dilettantism. Certainly highlighting the issue (as in Bruce's post) is the first step to managing it, but it's not a problem that has an answer.
At the risk of stepping on Patrick O'Donnell's bibliographic toes, there's been some interesting work assessing disciplinarity both generally within academia (Michele Lamont, How Professors Think: Inside the Curious World of Academic Judgment; Louis Menand, The Marketplace of Ideas: Reform and Resistance in the American University) and law (Peter Goodrich, "Intellection and Indiscipline"). Also on the issue of the rise of social science disciplines generally and history as a discipline specifically, see Thomas Haskell, The Emergence of Professional Social Science: The American Social Science Association and the Nineteenth Century Crisis of Authority, and Objectivity is Not Neutrality: Explanatory Schemes in History. And what would a guest blog post be without some self-promotion: my thesis ("The Venn Diagram of Business Lawyering Judgments", forthcoming, 46 Seton Hall L. Rev. 1 (2011)) that effective business lawyering demands a skill in being interdisciplinary, a discipline I have coined "metadisciplinarity," otherwise known as the deep art of being meaningfully shallow.
Wednesday, February 02, 2011
Charles Fried on the Individual Mandate (and a Plug for Our Contract Law Symposium)
Charles Fried of Harvard, former Massachusetts SJC justice and Solicitor-General in the Reagan administration (hence a long time Republican), testified before the Senate Judiciary Committee, excoriating Judge Vinson's constitutional analysis in the individual mandate case. (HT Dan Farber via Facebook). Obviously he does not agree with Randy Barnett and Elizabeth Foley. But I leave constitutional matters to others like Howard.
Instead, I want to take the opportunity of this unexpected conjunction to segue into a plug for an event here in Boston at the Suffolk University Law School on Friday, March 25, 2011 in which you can hear both Professors Fried and Barnett, among others, but on a far less controversial topic: contract theory. This year marks the thirtieth anniversary of Professor Fried's Contract as Promise, the book I'm sure it's fair to say is the single most cited source for the thesis that what justifies contract law -- the state's intervention in the adjudication of disputes arising out of private and voluntary agreements -- is the upholding of the sanctity of promise as a moral obligation. We will have four panels during the day -- it's going to be crowded, but Professor Fried was a hell of a draw! -- with papers and commentary by the aforementioned Professors Fried and Barnett, as well as T.M. Scanlon, Barbara Fried, Alan Schwartz, Daniel Markovits, Jean Braucher, Seana Shiffrin, Rachel Arnow-Richman, Carol Chomsky, Avery Katz, Richard Craswell, Juliet Kostritsky, Gregory Klass, John C.P. Goldberg, Curtis Bridgeman, Lisa Bernstein, Henry Smith, Roy Kreitner, Nathan Oman, and Jody Kraus. The papers and proceedings will be published in a volume of the Suffolk Law Review.
There is no charge for attendance but we do ask you to register, which you can do online at Contract as Promise at 30: The Future of Contract Theory, where you will also find links to the tentative program and for accommodation at preferred rates.
And I promise that March 25 will be a beautiful early spring day in Boston, with not a trace of snow.
Friday, August 06, 2010
SEALS/AALS/LSA Round-tables: Can they migrate to the web here on Prawfs?
I don't know about you, but I find it's difficult to attend all the good panels going on at conferences such as SEALS, where there are simultaneous panels competing for one's attention, not to mention the temptations of the informal schmoozing, and yes, the surroundings. So I have an idea: if you were on a panel this past week at SEALS, and you thought, "you know, it's a shame that there were only 2 to 25 people in the room available to hear the sharp thoughts of my co-panelists," consider yourself invited to organize your co-panelists' talking points and merge them into a document (or a series of posts) that we can put up on Prawfs and have a larger discussion about.
After the jump, I'll mention just a few of the panels I either regretted missing or attended but think should have a wider audience. Hopefully, some of the folks listed will organize the others, or at least, share their own thoughts here. My own panel will be doing something like this soon. Just to be clear, this is not an appropriate forum for the new scholars panels (sorry!), since those are individual papers; I'm looking for remarks people wrote up for panels around a particular shared theme.
The Future of the Media in an Internet Age
This panel focuses on the future of the media in light of a host of new and emerging technologies, including the Internet, Twitter, Flicker, blogs, and cable and satellite communications.
Dean David Logan,
Speakers: Professor Dr. Dieter Dörr, Johannes Gutenberg University Mainz, Faculty of Law (Germany); Professor Udo Fink Doerr, Johannes Gutenberg University Mainz, Faculty of Law (Germany); Professor Russell Weaver, University of Louisville, Louis D. Brandeis School of Law; Professor Carol Pauli, Loyola University New Orleans College of Law; Professor Glenn Reynolds, The University of Tennessee College of Law; Mr. James Winston, Rubin, Winston, Diercks, Harris & Cooke, LLP, Washington, DC
Report from the
Three of the leaders of the major legal education organizations will address the great questions facing legal education and the profession. Questions will be collected from SEALS members and each of the three leaders will have an opportunity to address "The Top 10 Questions in Legal Education."
Dean David Brennen,
Speakers: Professor Susan Westerberg Prager, Executive Director, Association of American Law Schools; Mr. Bucky Askew, Consultant on Legal Education, American Bar Association; Mr. Daniel Bernstine, President & CEO, Law School Admission Council
Supreme Court Update–Individual Rights
This part of the Supreme Court Update focuses on recently decided cases pertaining to governmental powers and individual rights (e.g., Free Speech, Establishment Clause, Free Exercise Clause, Equal Protection).
Professor James Wilets, Nova Southeastern University,
Speakers: Professor Melissa Waters, Washington University School of Law; Professor Howard Wasserman, Florida International University College of Law; Professor Frank Ravitch, Michigan State University College of Law; Professor Otis Stephens, The University of Tennessee College of Law; Professor Ronald Krotoszynski, The University of Alabama School of Law
Supreme Court Update–Corporate, Civil Litigation, Business, Administrative & Regulatory Issues
This part of the Supreme Court Update focuses on decisions relating to corporate issues, civil litigation, administrative and business issues, as well as important legislation enacted by Congress or the states.
Dean Dennis Honabach, Northern
Professor William Funk, Lewis & Clark Law School; Professor Christopher
Pietruszkiewicz, Louisiana State University Law Center; Professor Thomas Plank,
The University of Tennessee College of Law; Professor Donna Nagy, Indiana
University Maurer School of Law
You’ve Got Tenure! Now What?
Noon This panel will address how to manage the
transition from untenured to tenured status and how one’s professional life
changes once tenure is achieved.
Questions to be considered include: How does being tenured affect one’s
teaching, scholarship, and service, or one’s relationship with colleagues? Do
expectations or pressures – whether internal or external – change? How does one measure success after a significant
benchmark has been achieved? Does one
still need a mentor? What new
obligations arise post-tenure? This
panel, which is organized by the New Scholars Committee, is especially aimed at
the soon-to-be or newly-tenured, although many others will find it interesting.
Moderator: Professor Matthew Parlow,
Speakers: Professor David Case, The University of Mississippi School of Law; Professor Geoff Rapp, University of Toledo College of Law; Professor William Araiza, Brooklyn Law School; Professor Mark Bauer, Stetson University College of Law
The Value of Empirical Research in
Legal education lags behind other disciplines in the development of scholarship, and particularly empirical scholarship, about teaching, assessment and student learning. In this program, panelists will present their empirical research about student learning in the context of a discussion about how law professors might begin to develop their own empirical studies on teaching, assessment, and student learning. To lay the groundwork for others interested in pursuing this area of legal scholarship, panelists will use their work to illustrate how they tested underlying assumptions about student learning and will discuss the research methodology and design issues involved in their respective studies. Speakers will provide participants with papers on different topics embraced by this subject.
Professor Howard Katz,
Speakers: Professor Andrea Curcio, Georgia State University College of Law; Professor Eric Degroff, Regent University School of Law; Professor Emmy Reeves, University of Richmond School of Law; Professor Leah Christensen, Thomas Jefferson School of Law; Professor William Henderson, Indiana University Maurer School of Law
Discussion: Obtaining and Executing Casebook Contracts This panel focuses on the nuts and bolts of
how to obtain casebook contracts and (once obtained) how to bring them to
fruition. The panel is composed of
established casebook authors. Moderator:
Professor Bradley Shannon, Roundtable Discussion Why Do We Have the Fourth Amendment? In this
panel, the moderator will pose questions to four experts on the history of
and/or rationale for the Fourth Amendment. These experts will share their
thoughts and expertise on such questions as who and what the Fourth Amendment
was designed to protect, how faithful the court has been to original intent,
how well the Court has adapted the Amendment to modern times, and what the
future may hold for the Fourth Amendment. Moderator:
Professor Arnold Speakers:
Professor Morgan Cloud, Emory University School of Law; Professor Thomas
Clancy, The University of Mississippi School of Law; Professor Wayne Logan,
Florida State University College of Law; Professor Janet Hoeffel, Tulane
University Law School Executive Compensation in Recessionary Times This
panel will step back and begin to assess the flurry of activity from the last
few years around regulating executive compensation. As we begin to emerge from the recession, we
can ask: were the measures implemented, including such steps as the appointment
of a government "compensation czar," limited to the unique circumstances
of billion-dollar bailouts and the danger of another great depression? Or were
these necessary correctives to an under-regulated market that needs continued
government involvement to ensure that incentives are properly aligned? In answering these questions, the panelists
will also try to revisit first principles about the aims of executive
compensation regulation. Moderator:
Professor Jason Solomon, The Speakers:
Professor Omari Simmons, Wake Forest University School of Law; Professor Gregg
Polsky, University of North Carolina School of Law; Professor Brett McDonnell,
University of Minnesota Law School; Professor Miriam Cherry, University of the
Pacific McGeorge School of Law Roundtable Discussion: The Exclusionary Rule For
this panel, the moderator will ask questions of four experts on the
exclusionary rule of the Fourth Amendment. These experts will share their
thoughts and expertise on such questions as whether the exclusionary rule
significantly deters police violations of the Fourth Amendment, whether there
are reasons apart from deterrence that might justify the exclusionary rule,
whether the costs of the exclusionary rule outweigh its benefits, and whether
there are other means of enforcing the Fourth Amendment that might work as well
or better than the exclusionary rule. Moderator: Professor Catherine Hancock, Roundtable Discussion on Grand Jury Reform: An Idea
Whose Time Has Come (Again)? This
panel will explore grand jury reform from a variety of scholarly perspectives. The panelists will examine the constitutional
role of the grand jury in the modern criminal justice system, debate the need
for functional enhancements and reform, and analyze prospects for
implementation of such reforms in the current political climate. Moderator: Professor Katrice Copeland, Speakers:
Professor Roger Fairfax, The George Washington University Law School; Professor
Andrew Leipold, University of Illinois College of Law; Professor Ric Simmons,
The Ohio State University Michael E. Moritz College of Law; Professor Niki
Kuckes, Roger Williams University School of Law; Professor Eric Miller, Saint
Louis University School of Law; Professor Margaret Lawton, Charleston School of
Law Innovative Teaching Techniques Used in First-Year
Courses Many first-year law school courses
have historically focused their teaching techniques on the conventional
Socratic method. While that method
remains useful in different ways, advances in classroom technology as well as
increased research into student learning styles are providing first-year
professors exciting new opportunities to innovate in the area of teaching and
learning. This session will present and
analyze several of those techniques from professors who have implemented them
into their first-year courses. Moderator:
Professor Matt Vega, Speakers:
Professor Chad Emerson, Faulkner University Thomas Goode Jones School of Law;
Professor Helen Grant, Elon University School of Law; Professor Shelley Saxer,
Pepperdine University School of Law; Professor Gregory Stein, The University of
Tennessee College of Law Criminal Procedure Workshop Legislative and Judicial Protection of Criminal
Defendants: Is Criminal Procedure Less Countermajoritarian Than We Think? The
conventional wisdom in the criminal procedure field is that rules protecting
defendants are countermajoritarian, meaning that legislatures rarely protect
criminal defendants and courts often have to step in and make rules contrary to
what legislatures would enact and the public would support. But is that correct? Many Supreme Court opinions protecting
criminal defendants consider how many states have adopted the protective
rule. And some seemingly punitive states
actually have legislatively enacted codes of criminal procedure that are far
more generous to criminal defendants than what is required by the federal
Constitution. This panel explores
evidence indicating that criminal procedure may not be as countermajoritarian
as we think it is. Moderator:
Professor Sharon Finegan, Speakers:
Professor Adam Gershowitz, University of Houston Law Center; Professor Corinna
Lain, University of Richmond School of Law; Professor Ronald Wright, Wake
Forest University School of Law; Professor Douglas Berman, The Ohio State
University Michael E. Moritz College of Law New Empirical and Theoretical Work on Judging and the
Judicial Process The
panelists will explore recent methodological developments in the study of the
judicial process. These include the rise
of empirical research, behavioral economics, and other law & psychology
approaches, as well as work exploring the theoretical underpinnings of the
judicial role. Among the topics open for
examination are the strengths and weaknesses of these various methodologies,
whether this work forms the basis for a coherent subdiscipline, how far such a
subdiscipline might extend, and possible future directions of such scholarship. Moderator:
Speakers: Professor David
Fagundes, Southwestern Law School; Professor Corey Yung, The John Marshall Law
School; Professor Scott Bauries, University of Kentucky College of Law;
Professor Chad Oldfather, Marquette University Law School
Roundtable Discussion: Obtaining and Executing Casebook Contracts
This panel focuses on the nuts and bolts of how to obtain casebook contracts and (once obtained) how to bring them to fruition. The panel is composed of established casebook authors.
Professor Bradley Shannon,
Why Do We Have the Fourth Amendment?
In this panel, the moderator will pose questions to four experts on the history of and/or rationale for the Fourth Amendment. These experts will share their thoughts and expertise on such questions as who and what the Fourth Amendment was designed to protect, how faithful the court has been to original intent, how well the Court has adapted the Amendment to modern times, and what the future may hold for the Fourth Amendment.
Speakers: Professor Morgan Cloud, Emory University School of Law; Professor Thomas Clancy, The University of Mississippi School of Law; Professor Wayne Logan, Florida State University College of Law; Professor Janet Hoeffel, Tulane University Law School
Executive Compensation in Recessionary Times
This panel will step back and begin to assess the flurry of activity from the last few years around regulating executive compensation. As we begin to emerge from the recession, we can ask: were the measures implemented, including such steps as the appointment of a government "compensation czar," limited to the unique circumstances of billion-dollar bailouts and the danger of another great depression? Or were these necessary correctives to an under-regulated market that needs continued government involvement to ensure that incentives are properly aligned? In answering these questions, the panelists will also try to revisit first principles about the aims of executive compensation regulation.
Professor Jason Solomon, The
Speakers: Professor Omari Simmons, Wake Forest University School of Law; Professor Gregg Polsky, University of North Carolina School of Law; Professor Brett McDonnell, University of Minnesota Law School; Professor Miriam Cherry, University of the Pacific McGeorge School of Law
Roundtable Discussion: The Exclusionary Rule
For this panel, the moderator will ask questions of four experts on the exclusionary rule of the Fourth Amendment. These experts will share their thoughts and expertise on such questions as whether the exclusionary rule significantly deters police violations of the Fourth Amendment, whether there are reasons apart from deterrence that might justify the exclusionary rule, whether the costs of the exclusionary rule outweigh its benefits, and whether there are other means of enforcing the Fourth Amendment that might work as well or better than the exclusionary rule.
Moderator: Professor Catherine Hancock,
Roundtable Discussion on Grand Jury Reform: An Idea Whose Time Has Come (Again)?
This panel will explore grand jury reform from a variety of scholarly perspectives. The panelists will examine the constitutional role of the grand jury in the modern criminal justice system, debate the need for functional enhancements and reform, and analyze prospects for implementation of such reforms in the current political climate.
Moderator: Professor Katrice Copeland,
Speakers: Professor Roger Fairfax, The George Washington University Law School; Professor Andrew Leipold, University of Illinois College of Law; Professor Ric Simmons, The Ohio State University Michael E. Moritz College of Law; Professor Niki Kuckes, Roger Williams University School of Law; Professor Eric Miller, Saint Louis University School of Law; Professor Margaret Lawton, Charleston School of Law
Innovative Teaching Techniques Used in First-Year Courses
Many first-year law school courses have historically focused their teaching techniques on the conventional Socratic method. While that method remains useful in different ways, advances in classroom technology as well as increased research into student learning styles are providing first-year professors exciting new opportunities to innovate in the area of teaching and learning. This session will present and analyze several of those techniques from professors who have implemented them into their first-year courses.
Professor Matt Vega,
Speakers: Professor Chad Emerson, Faulkner University Thomas Goode Jones School of Law; Professor Helen Grant, Elon University School of Law; Professor Shelley Saxer, Pepperdine University School of Law; Professor Gregory Stein, The University of Tennessee College of Law
Criminal Procedure Workshop
Legislative and Judicial Protection of Criminal Defendants: Is Criminal Procedure Less Countermajoritarian Than We Think?
The conventional wisdom in the criminal procedure field is that rules protecting defendants are countermajoritarian, meaning that legislatures rarely protect criminal defendants and courts often have to step in and make rules contrary to what legislatures would enact and the public would support. But is that correct? Many Supreme Court opinions protecting criminal defendants consider how many states have adopted the protective rule. And some seemingly punitive states actually have legislatively enacted codes of criminal procedure that are far more generous to criminal defendants than what is required by the federal Constitution. This panel explores evidence indicating that criminal procedure may not be as countermajoritarian as we think it is.
Professor Sharon Finegan,
Speakers: Professor Adam Gershowitz, University of Houston Law Center; Professor Corinna Lain, University of Richmond School of Law; Professor Ronald Wright, Wake Forest University School of Law; Professor Douglas Berman, The Ohio State University Michael E. Moritz College of Law
New Empirical and Theoretical Work on Judging and the Judicial Process
The panelists will explore recent methodological developments in the study of the judicial process. These include the rise of empirical research, behavioral economics, and other law & psychology approaches, as well as work exploring the theoretical underpinnings of the judicial role. Among the topics open for examination are the strengths and weaknesses of these various methodologies, whether this work forms the basis for a coherent subdiscipline, how far such a subdiscipline might extend, and possible future directions of such scholarship.
Speakers: Professor David Fagundes, Southwestern Law School; Professor Corey Yung, The John Marshall Law School; Professor Scott Bauries, University of Kentucky College of Law; Professor Chad Oldfather, Marquette University Law School
Rehabilitation and Restoration in Criminal Punishment: Dead End or Realistic Imperative?
Some have alleged that our modern criminal punishment system no longer embraces the idea that criminals can and should be made whole, become reconciled to the community, and successfully re-assimilate upon release. This panel will offer a variety of perspectives on the matter, from socio-political, to social-science, to on-the-ground experiential.
Professor Andrea Dennis,
Speakers: Ms. Sarah Higinbotham, Georgia State University, Department of English Literature; Ms. Ketanji Brown Jackson, Vice-Chair, United States Sentencing Commission; Professor Bruce Winick, University of Miami School of Law; Professor David Pimentel, Florida Coastal School of Law
Criminal Law Workshop
The Feminist Challenge in Criminal Law
The title of this panel is taken from a 1995 article by Stephen Schulhofer discussing the various philosophical and practical challenges of creating a more woman-centered criminal justice system. Chief among these concerns was the potential threat that feminism posed to defendants’ rights. Since Schulhofer's article, feminism-based criminal law reform has entered the mainstream and produced wide-ranging impacts on the administration of rape and domestic violence law. Today, a new body of legal literature has developed assessing the efficacy, desirability, and impact of these reforms and analyzing what these reforms say about feminism's legacy. The presenters are part of the larger dialogue about gender-based reform in criminal law – its past, present, and future.
Professor Adele Morrison,
Speakers: Professor Leigh Goodmark, University of Baltimore School of Law; Professor Susan Kuo, University of South Carolina School of Law; Professor Aya Gruber, The University of Iowa College of Law; Dean Geraldine Mackenzie, Bond University Faculty of Law (Australia)
11:00 The Future of Casebooks, Publishing & Course Materials
With the development of new (e.g., electronic) publishing technologies and shifts in the economics of publishing, the publishing business is in a period of significant transition. This panel, which includes casebook authors, publishing representatives, and an intellectual property law teacher-scholar will examine these transitions and where they are likely to lead us.
Professor Vincent Cardi,
Speakers: Mr. Keith Sipe, Publisher, Carolina Academic Press; Ms. Pamela Siege, Director of Publishing, West Academic, Thomson Reuters; Ms. Carol McGeehan, Publisher, Legal Education, Aspen Publishers; Ms. Leslie Levin, Executive Acquisitions Manager, LexisNexis; Professor Steve Friedland, Elon University School of Law; Professor Michael Schwartz, Washburn University School of Law; Professor Joel Friedman, Tulane University Law School; Mr. John Mayer, Executive Director, Center for Computer-Assisted Legal Instruction/CALI; Professor Gary Pulsinelli, The University of Tennessee College of Law; Mr. Niko Pfund, Oxford University Press
The Individual Health Care Mandate and Enumerated Powers
Shortly after the health care reform bill was signed into law, the attorneys general of 20 states filed lawsuits challenging the individual mandate as exceeding Congress’s powers. This panel will consider the mandate’s constitutionality, as well as procedural issues presented by the litigation.
Speakers: Professor Randy Barnett,
Wednesday, March 03, 2010
All that Glisters is Not Gold (Yes, I spelled Glisters right.)
If you haven't read The Merchant of Venice lately, let me be the first to urge that it is your duty as a lawyer to do so. First, all the cool lawyers (oxymoron?) are reading it. In fact, Shakespeare has been cited in over 800 judicial opinions. Second, you will be amazed that your legal training gives you a different perspective on the play than you had when you read it in high school or college.
I make this recommendation now because I had the great fortune to be asked to speak on a panel at an interdisciplinary conference at the University of Florida called Convergences and Conversions: The Merchant of Venice Into the Twenty-First Century. I was the only law professor among professors of English literature, Spanish literature, Hebrew literature, History, Philosophy, Women's Studies, Film Studies, and Judaic Studies, which was intimidating. However, I found it absolutely exhilarating to participate in a discussion in an interpretive community that is so attentive to allusions and nuance and so steeped in critical theory. Even more exhilarating was the experience of reading The Merchant of Venice for the first time since I became a full-fledged lawyer, Jew, and mother.
One of the most interesting questions for me as a lawyer and Jew is why the Jewish merchant Shylock has faith that the legal system will give him the benefit of his bargain, his pound of flesh. Why does Shylock insist that "[t]he Duke shall grant me justice"? (III.iii.8.) Even before the trial scene, the play is full of examples demonstrating how Venetian law treated Christians and Jews unequally and helped to define the Jew as "other." Portia's deceased Christian father is able to call on the law's assistance to help him impose control over who his daughter shall marry, but such is not the case for Shylock. When the Christian Lorenzo steals Shylock's daughter and his ducats, Shylock lacks legal recourse to retrieve them. To add insult to injury, the law ends up forcing him to financially aid the marriage. Jews like Shylock would have played an essential role in the mercantile culture of Venice, and yet even commercial law was skewed against them. With regard to the commercial law, Jews were apparently forbidden to own real property, which is what would have driven Shylock into the business for which he is reviled by the Christians dependent on it. Family law, of course, is another example, in which there is pronounced inequality in the play. Venice is even, as Shylock points out, a society in which resides "many a purchas'd slave." (IV.i.90) Why, then, should Shylock be surprised when the Duke relies on a counterfeit legal expert (the disguised Portia) and a troubling precedent to resolve the claim?
Despite Portia's eloquence about the "quality of mercy" (IV.i.184), the winning argument in the play is that Shylock's contract is trumped by a criminal law that protects only Christians. Although you might remember that Shylock lost because he failed to specify that he could take blood along with his pound of flesh, the real problem was that execution of his contract would have required the taking of "Christian blood" (IV.i.310). Even if the contract had mentioned blood, it appears that it would have been void because of Shylock's status as a Jew, and hence an alien. As Portia explains, "It is enacted in the laws of Venice,/If it be proved against an alien,/That by direct or indirect attempts/He seeks the life of any citizen,/The party 'gainst the which he doth contrive/Shall seize one half his good; the other half/Comes to the privy coffer of the state,/And the offender's life lies in the mercy/Of the Duke only . . . " (IV. i. 348-356). Shylock, by virtue of his religion, is defined as alien, outside the equal protection of the laws. His mistaken belief that contract law, at least, will apply in a neutral fashion is his undoing, leading to the loss of his property and religious conversion enforced by the power of the state.
For me, the play raises an interesting jurisprudential question: why do individuals accustomed to unequal treatment in law still continue to expect Justice? Is it because the law masks its role in constructing the individuals against whom it discriminates as "others"? In the play the Duke speaks as if he is bound by law, and not free to decide in accord with the dictates of mercy, and Shylock apparently subscribes to this notion as well. Why should he, when all of his past experience should have taught him that Venetian law will be written or interpreted to favor those in power?
I hope you'll reread it. When you do, I hope you'll also ask yourself how come the mothers of Portia and Jessica are absent from the text. When you answer that question, email me and let me know. Enjoy.
Wednesday, July 29, 2009
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."
Thursday, July 23, 2009
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.]
Friday, July 10, 2009
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.
Sunday, June 14, 2009
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:
Monday, June 08, 2009
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?)
Saturday, May 23, 2009
The Asinine Evidence for Largely Irrelevant Inquiries: Kagan and SCOTUS
I just got back the other day from a quick trip to Israel, where I was teaching a mini-course on punishment and sentencing at Bar Ilan, so I haven't had a chance to do much substantive blogging lately. That said, in the morass of catch-up, I did come across a recent judicial politics posting on NRO (which I came across via ATL) that I though warranted some response.
In her post, Wendy Long argues that Elena Kagan shouldn't be awarded any points by conservatives in the post-Souter confirmation process for her purported success in making HLS more hospitable to libertarians and conservatives. Why not? Because under Kagan's tenure as dean, only 3 "conservatives" were hired (Goldsmith, Manning, and Vermeule), and this represents only 7% of the hires made during Kagan's time as dean.
Friday, January 30, 2009
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!
Monday, December 22, 2008
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?"
Thursday, July 10, 2008
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.
Wednesday, June 04, 2008
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.
Tuesday, February 12, 2008
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.
Monday, February 04, 2008
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?
Friday, February 01, 2008
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
Friday, December 14, 2007
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?
Monday, July 30, 2007
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.
Friday, July 27, 2007
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?
Sunday, July 22, 2007
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!
Tuesday, March 27, 2007
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?
Posted by Dan Markel on March 27, 2007 at 01:40 PM in Dan Markel, Deliberation and voices, Information and Technology, Intellectual Property, Life of Law Schools | Permalink | Comments (5) | TrackBack
Monday, March 19, 2007
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.
Tuesday, March 13, 2007
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.
Wednesday, March 07, 2007
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.
Tuesday, February 13, 2007
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
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)
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)
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
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
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?
Monday, January 22, 2007
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).
Friday, October 06, 2006
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?
Thursday, October 05, 2006
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.
Friday, September 08, 2006
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]
Wednesday, July 12, 2006
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?
Wednesday, June 07, 2006
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.”
Tuesday, June 06, 2006
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?
Thursday, May 11, 2006
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.
Tuesday, May 02, 2006
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.