PrawfsBlawg

All-Nude Exam Writing

At the Faculty Lounge, Tim Zinnecker has a post complaining about students confusing "it's" and "its" on their exams.  One commenter who identifies himself as a law student notes that he recently misused the word on a recent exam but, because time was short, was required to "hurry right along, and there just wasn't any time to correct errors."  He counsels Zinnecker give his students "a break.  They're doing the best they can."

Zinnecker was just blowing off steam, not threatening to take points off the exam.  I don't take points off exams for such things either, even though I notice a distressing number of such errors, along with what I would call an over-casualness about larding up exams with abbreviations, contractions, and other short-cuts.  And I certainly think some of these errors are inadvertent and, in a sense, relatively blameless --although I hope my students would not need a spell-checker to catch these mistakes if they were writing without time  constraints!  (One of the commenters on Zinnecker's post, however, notes that he is observing an increasing number of similar errors in papers, not just exams.)

Errors happen, of course.  But what I find interesting about them, and about their seemingly increasing number, is not so much what they reveal about actual educational failings -- like I said, I am assuming the students know better and would correct the errors if they had more time -- but about the casualness with which some students treat these errors.  It is true that time is short on exams.  But I cannot think of any of my students who would, assuming away the problem of being arrested, show up naked to write their exams because they just couldn't be bothered to spend the time getting dressed and thought it might save them a few minutes to show up au naturel.  It's not just that they fear being laughed at by others, I think; it's that they've so thoroughly internalized the social norm against public nudity that they just wouldn't do it.  It would be unthinkable to them.  There are some conventions they just couldn't break.  Similarly, and taking away the problem of public humiliation, I have never experienced a student who, e.e. cummings-like, didn't bother with capitalizing the beginning of sentences on an exam, even though the same argument raised by the commenter on Zinnecker's post, that it would save time and he couldn't be bothered to correct this basic error, would hold true here.  To write in this way would for most students be unthinkable; however short time might be on the exam, they except this convention as part of the cost of writing.

I wonder whether that is the real reason we profs seem to see more of these kinds of errors on exams: the sense on the part of some or many students that if inadvertent errors pop up, and even if they notice them, they should just be treated as forgivable errors and ignored by student and grader alike.  They're no big deal.  There is not a sufficient sense of shame tied to these errors for the student to just assume that correcting them is part of the cost of doing business and a necessary expenditure of time for any piece of writing, including a time-sensitive exam.  (Let alone doing so on a paper!)  I don't doubt that such errors occurred from time to time in my own exams, and for that matter in my blogging.  But on the whole, I would correct any grammatical or spelling errors I spotted while I was writing, no matter how inadvertent they were or how obvious the meaning of what I was writing was, simply because to do otherwise would be almost as unthinkable as forgetting to put on my clothes before heading out the door for the exam.  

I grant you that conventions change; it was not unthinkable for me to show up to the exam without my tie, for example, as it might have been a few decades earlier (or currently on the Virginia bar exam, to quote one less-than-quaint anachronism).  But I think it is still worth reflecting on, and lamenting, the possibility that many of the errors we spot on exams are there not because the students were unaware of them, or because they were ignorant of the rules they were accidentally breaking, but because they were both aware of the errors and indifferent to them.  As I said, I am not inclined to mark down these kinds of things, so clearly I am willing to give these students a break.  But I'm not sure it's right to say they're doing the best they can, as the commenter on Zinnecker's post did.  If that's so, then in some cases we really should fear for our educational system, and perhaps we ought to start marking down or failing students altogether.  But it may be that some of these students are just doing the best they're willing to do, and that this willingness doesn't include a strong desire to appear fully literate to their peers and their professors.  And that is, or should be, literally a shame -- assuming that shame still exists for transgressions less glaring than naked exam-writing. 

Dorf on Christian Legal Society (and FAIR?)

Mike Dorf has an interesting post on Christian Legal Society v. Martinez, in which the Court just granted cert.  Here's one paragraph I found particularly interesting:

The Hastings opp cert relies on district court findings showing that until a few years ago, CLS had no problem with openly gay and lesbian members.  The trouble arose when the national CLS started insisting that its chapters make prospective members take a pledge that, as interpreted by the national organization, required excluding "unrepentant" sexual minorities.  In a sense, there is a battle here for the moral high ground.  The CLS imagines itself as a small band of Christians dissenting from the politically correct law school orthodoxy and being thrown to the lions for it.  Hastings envisions the CLS students themselves as pawns or dupes of a national organization that is simply itching for a fight.  Whether any of this is relevant to the legal question is unclear.

This has overtones to me of FAIR v. Rumsfeld, the so-called "Solomon Amendment" case.  There, too, FAIR described itself as a group of schools whose decision to bar on-campus access to military recruiters was essentially the result of home-grown policies, arrived at through internal discussion about what would best suit the teaching missions of the law schools involved.  Although this point was not emphasized by the government in response, there was a counterpoint involved that was similar to that raised here by Hastings: namely, that these policies were related to, and in some cases perhaps the result of, pressure imposed by a central organization -- the AALS.  

Mike says it's "unclear" whether any of this is relevant to the legal question.  I think it can be portrayed as relevant, and that some groups and commentators will end up making some form of this argument, but ultimately that it's wrong.  The argument will go something like this: The Hastings CLS argues that it needs to discriminate in its membership because this discrimination is essential to its nature and purpose, and this conclusion is the result of genuine thought on the part of the CLS chapter about what it wants and needs as an expressive association.  But if it is just the tool of a larger group, or changed its policies only to receive funding and other goods from the national CLS, then the Court hardly need defer, Dale-style, to its own statement about its expressive purposes.

Two things need to be said about this.  First, note the parallels to FAIR.  FAIR and its member schools argued strongly on the basis that they were making considered academic judgments about what their policies required with respect to on-campus recruiters, and that this judgment deserved deference, whether under Dale or under the Court's academic freedom jurisprudence.  But if they were in fact acting out of pressure from some association, like the AALS, that is composed of law schools but is not itself a law school, if their decisions were the result of external pressures rather than internal deliberation, then why defer?  I suspect that some commentators who try to make this point about CLS were less willing to see the same point in the FAIR case, although that is speculation on my part.

Second, I think the point is wrong.  However much they may have welcomed the money and the association with the national CLS, the Hastings chapter still made its own judgment that doing so, and changing its admissions policies in accordance with the national body's requirements, was an important thing to do.  The same thing can be said about the AALS in the FAIR case, although I think we should be more willing to expect independence of mind from law schools than from student clubs, and FAIR raised largely unacknowledged questions about whether, if universities or law schools are going to make arguments based on academic freedom, they are obliged to make genuinely independent decisions about what academic freedom requires rather than letting those decisions be made elsewhere.  My final view is that the issues Mike raises should not be legally relevant, even if the case is decided on the basis of associational freedom rather than (as I think more likely) public forum and government speech doctrine, but that they are important for considering the nature of freedom of association as a broader matter. 

Like a Poem?!? &!$%$@!

The folks at the WSJ Law Blog have a terrific item asking a number of leading law professors what constitutes a good law school exam answer.  I'm in agreement with most of the answers, and find it interesting that they tend to break down into a few simple pieces of advice with relatively little contradiction -- but just enough to be interesting.

1) Give an answer.  Several of the profs made this point, and Heather Gerken is especially persuasive on the topic.  She is right that one sees many answers that give a nice, on-the-one-hand, on-the-other-hand examination of the opposing doctrines and currents that might lead to one answer or the other.  Of course, that's much of what we learn in the law school, and profs around exam time tend to emphasize that we don't want "conclusory" answers, answers that are so busy saying what the student thinks is the correct outcome that they don't show their work, as they say in math class.  But Gerken is also right that one of the things we're trying to teach is judgment, and that even if we care less about the "right" answer and in fact drafted our questions to allow for more than one reasonable answer, we want to see that you are capable of reaching a conclusion about which is the best answer and justifying it.  Now, Paul Secunda does suggest in the post that we also want to see "maybes."  I don't know whether Paul also looks for an answer, but I don't think there is necessarily a contradiction,  Of course I want to see that you are aware of every forking path in your answer, but that does not mean I don't want to see any effort to draw conclusions about which is the best path.

2) Write the answer today, not yesterday.  Richard Friedman and, implicitly I think, Adam Winkler make this suggestion.  I always tell my con law students that just because we spend time on Marbury v. Madison (I know, I know), that doesn't mean any question involving a constitutional question decided in court requires a canned paragraph on the nature and history of judicial review.  Your answer should be directed at the question in a fine analytical fashion rather than just rehearsing canned legal points.  Not to say there's no room for stating the rule, but you should be doing so for a reason.  Adam talks about rigorous analysis, and we could phrase this as a separate recommendation, but we could also see rigorous organization and analysis as part and parcel of addressing the question before you rather than what you assume must be on the exam.

3) Remain human.  A couple of the posters make this point, and it's a good one.  If your answer demands that you conclude that some seemingly innocuous or fundamental law be struck down root and branch, with enormous implications for every other statute on the books, then, hey, maybe that should make you pause for a moment.  (See "judgment, legal.")  You might well want to pursue that course of analysis, but perhaps you should recognize that there is another potential side to the answer.  Legal judgment is a specialized form of judgment, but even 1Ls (especially 1Ls!) should not forget the dollop of common sense they brought with them to law school, which continues to apply even on law school exams.  Note that at least one of the profs also suggests that he'd like to hear you express a "value judgment" about whether the result is "good or fair or just."  There I must disagree.  I certainly won't mark down for it if you've done the rest of your work, and it may well add something to the answer.  But I -- and, I venture, most profs -- are less interested in your "feelings" about a result than, perhaps, about your professional judgment about whether a result is legally good or fair or just.

4) Finally, write poetry.  Pam Karlan of Stanford writes this one, and I imagine that many law student readers of this post will gnash their teeth at it.  But what she means is a little different.  She argues that every word in the answer should be there "for a reason," and show the capacity to make "creative arguments in a conventional form."  That is excellent advice.  I might add that economy and precision don't preclude a sense of grace or style, even on law school exams, and that although you can't skate endlessly far on style alone, a certain verve in your writing won't hurt and may make the process more joyous for both of us.  

Let me add to this my standard recommendation for law school exams, which in its own way incorporates each of these pieces of advice.  Write a good legal research memo.  Legal research and writing is not one of those courses that you have to take and that has nothing to do with the rest of your legal education.  It has everything to do with it.  The more you have practiced and internalized the art (and it is an art, of sorts) of capturing your thoughts and analysis in a rigorous, concise, organized fashion, with headings, topic sentences, and all the rest of it, so that you can convey your views carefully and thoroughly but without excess verbiage, the better you will be able to use this format on law school exams, to your great advantage.  The better organized and clearer your answer is, the more time you will have for the actual analysis and the easier it will be for the groggy grader, who is in the middle of reading 80 exams, to see that you have indeed spotted and dealt with every issue.  Moreover, as with any writing genre, the more you have mastered the basic mechanics, the less you'll be struggling with them while you write, and thus the more you'll be able to focus on the task at hand and even bring a certain sense of both humanity and style into the mix.  Also, legal writing is what you'll be doing with a vast amount of your time once you're in practice, so it's best to get that skill comfortably under your belt now, and not when some partner leaves you a voice-mail on Friday afternoon about something that absolutely has to get written this weekend (and which she will actually read about ten days later).

Comments are welcome, of course.  Good luck!  

Another Law and Religion Cert Grant

Via Howard Friedman's Religion Clause blog, this news:

The U.S. Supreme Court today granted certiorari in Christian Legal Society v. Martinez, (Docket No. 08-1371) (Order List). In the case, the U.S. 9th Circuit Court of Appeals upheld the right of University of California's Hastings College of Law to impose its policy against discrimination on the basis of religion and sexual orientation on a student religious group seeking formal recognition. (See prior posting.) Links to all the pleadings in the case are available from the Christian Legal Society website.

Thanks for letting us know, Howard, and for the links.  Doubtless Rick, Howard, and I will have thoughts on this at different times.

On Writing "Simply" or "Incomprehensibly"

This is one of those evergreen topics for academics, and for those who love to hate academics.  (Or, in some cases I suppose, who hate to love them.)  Ann Althouse links to an article by an economist who confesses that he has deliberately written "to impress rather than inform," and writes, "I lost my patience with unnecessarily complicated writing a long time ago."  Orin Kerr writes about this as well, adding that "the problem in legal scholarship is that complex and sophisticated words create the impression of complex and sophisticated arguments."  At The Faculty Lounge, Eric Muller offers his succinct agreement.  But our own Marc DeGirolami, in the comments to Eric's post, says, in effect, hold the phone: "If this is merely a call for elegant writing, then I suppose I agree (who could be against that?). But if it is a rallying call for simplicity for its own sake, then I think it misguided. Simple and clear is not the only way to express ideas -- especially complex ideas -- in a way that can be academically edifying."

Those of us with memories that extend a couple of weeks back may recall some discussion of who Marc writes for (somewhere between no one and himself), and that he was criticized for this in some corners.  Those of us who have actually read Marc's work know that it is pellucid and enjoyable.  So what gives?  Is he giving ammunition to his critics?  The commenters above have clearly staked out the popular position, and the cognoscenti can certainly fill in the missing snipes at Judith Butler et al.  But is there some justice to Marc's position?

You betcha, although there is also justice in the standard position.  The original article by the economist describes deliberately making writing obscure in order to win influence.  That is a cardinal sin of academic writing, or any other kind of writing.  My sense is that a still larger group of legal academics probably fall into obscurity without this kind of malicious intent; they're aping what they see around them, or they're just not taking the time to think about what they're writing and boil it down.  That's a sin too, although perhaps a venial rather than a mortal sin.  

But the key is the idea of making writing unnecessarily obscure.  Technical writing can be "obscure" to a general audience, but that writing can also be necessary to put thoughts down precisely in a way that will be understood by the relevant audience.  Non-technical writing should certainly try to avoid obscurity, but not at all costs.  If an idea is difficult to express clearly without boiling away some of its essence, or if it expresses ideas that are obscure because they are ineffable, or if some of its obscurity is also part of its grace and beauty, we shouldn't view that as a fatal blow against it.  There is more in heaven and earth than can be expressed in a "see Dick run" style.  One of my favorite writers is Norman Maclean, and he is often cited, often in a somewhat hostile register, as a model of breathtaking simplicity of style.  But some of his greatest writing can be returned to again and again because it lives in its absences and silences, in meanings that are far from plain from the face of the text.  It's simple writing, but it's not always clear.  That's called poetry, bub, and there can be a place for it -- even in academic writing.  

Orin is surely right that too much academic legal writing is neither poetic nor clear, but just dresses up basic and often trite ideas in ten-cent diction.  By all means let us avoid that.  But I think the fear that Marc expresses is that these kinds of common-sense views about what writing should be can become anti-intellectual dogma -- that they can be used by, say, blog commenters to sneer at academic or difficult writing in general without bothering to look at the writing itself.  "Write simply" is a pretty good rule of thumb.  "Write appropriately" is even better.  

Incidentally, not all of the blame for this tendency toward obscurity (although most of it, to be sure) lies at the feet of the writer.  The article Althouse references discusses how the economist in question did worse when he submitted clearly written articles to (peer-reviewed) journals than when he submitted the same article in a more obscure form.  On the whole, and perhaps contrary to popular belief, I think legal academic articles place better if they are clearly written than if they are written in a jargon-ridden fashion.  (Look at guest-blogger John Greenman's great article On Communication, which was both incredibly readable and very well-placed -- but was technical when it had to be.)  But it is probably also true that the law review selection process can sometimes give a little extra weight to submissions whose unnecessarily obscure or jargon-ridden language conveys the illusion of substance and authority.  Legal academics, even junior ones, should have enough moral backbone to disregard this moral hazard; but law review editors should certainly remind themselves to be part of the solution, not the problem.    

Academic Freedom-Palooza

The latest issue of the Texas Law Review contains three interesting book reviews, all of them centered on academic freedom.  The reviews take on Robert Post and Matthew Finkin's recent book For the Common Good, and Stanley Fish's enjoyable book Save the World on Your Own Time.  They're written by Fish, Post, and the dean of academic freedom law, Robert Byrne.  They're all available here and are must-reads for anyone interested in academic freedom issues.  Kudos to the editors for making space for these reviews.

There's a Pennoyer in My Foyer

Students studying for their Civ Pro exams and, perhaps more so, professors drafting their Civ Pro exams may want to take a break and surf on over to this article by Dan's colleague Elizabeth Chamblee Burch, just published in the Green Bag.  The title I have given above.  The subtitle: Civil Procedure According to Dr. Seuss.  How can you resist?  

More on Amicus Briefs, With a Question

Will beat me to the punch.  I think Orin raises some interesting points in his discussion at VC, especially in his responses to commenters.  But I am not sure that the concerns he raises are ultimately all that great.  I have three general points, and a question for Orin.

First, it seems to me that amicus briefs filed by members of Congress -- and like Will, I would insist that we not elide the difference between briefs filed by Congress as some kind of official institutional action, and briefs filed by members of Congress, no matter how numerous -- can provide all kinds of information that might be useful to the Court in deciding some statutory question.  I can imagine briefs that would be less helpful -- briefs, for instance, of the ilk of those filed by some members in the Schiavo litigation, in which members simply say, we wrote the bill and this is what we intended, and you should interpret the statute accordingly.  Even those like me who do not categorically oppose the use of legislative history might find this too cute a move, although of course the Court would be free to disregard such a brief.  But congressional amicus briefs could offer all kinds of other, more useful information that is more within the members' own expertise and epistemic authority than the Court's: analysis of policy implications, a sense of how a particular statutory provision relates to the whole statute (although this is surely closer to the Court's own epistemic realm), highlighting particular evidence that came before Congress when the bill was being debated, and so on.  I am not saying the Court must give undue weight to any of this.  But I should think it would be as free to give some weight to it as it would be to consider information offered in amicus briefs by subject-matter experts or by institutions or interest groups affected by a particular piece of legislation.

Second, while I think Orin raises some interesting separation of powers questions, I am not convinced they ultimately amount to much.  Amicus briefs are just arguments to the Court.  They fully accede to and participate in the Court's own processes.  They do not involve any action of a "legislative" character (or, I would argue, although I think Orin makes stronger points here, of a genuinely executive character).  I should add that I also do not object to judges opining, at least in judicial opinions, that some particular statute is poorly drafted and should be revisited by Congress -- arguments that Congress is of course free to disregard.  So perhaps my differences with Orin on the amicus brief issue track some broader difference of opinion.

Third, in his comment on Will's post, Orin suggests that because Congress has a good deal of authority to alter the operations of the Supreme Court and other federal courts, an amicus brief will carry some kind of implied intimidation or threat.  But I don't see this as really raising any unique threat.  Congress has that authority anyway, whether it mentions it or not, and the Court is already aware of this and always operates under the shadow of congressional ability to retaliate.  I don't see how a member or members filing an amicus brief really raises the threat level beyond its present state.

That leads to my question.  I wonder whether Orin thinks that amicus briefs in which a member or members of Congress urge the Court to follow a particular interpretation of a statute (and in which any threat of retaliation surely will remain unstated) raise different concerns than, say, a member or members taking to the floor of the House or Senate to suggest that the Court has erred in some area or had better not err in some area in the future, under threat of, say, a jurisdiction-stripping statute.  If they are different, what is that difference?  And if they raise the same concerns, which does he think is worse?

And, of course, happy Thanksgiving to all.

From Letters to the Editors of Mirror of Justice

Back when The New Yorker didn't run a Letters to the Editor section, Spy Magazine used to run a feature called "Letters to the Editor of The New Yorker."  Since my good friend Rick's other blog, Mirror of Justice, doesn't have a comment section, for reasons I fully accept, let me use this space to call attention to and respond to a recent post of his at MoJ.  Rick reprints a description of a recent lecture on Catholic voices in the public sphere by Helen Alvare, including the following passage describing the speech:

Alvaré suggested that we hammer home two points that ought to be obvious but aren’t: Most Americans are religious in some fashion, and few people are motivated by purely secular considerations to become . . . well, better people. This is why liberalism’s standard prescriptions for addressing various social problems—especially unwanted pregnancies, births out of wedlock, STDs, and family breakdown—just don’t work.

I have some questions about both of these statements.  On the first score, I'm not sure what it means to say that few people are motivated by "purely secular considerations" to become better.  I suppose it depends on what you mean by "purely secular," but I am not sure that it is true that few non-religious people are motivated by non-transcendent considerations to become better people.  I take it, incidentally, that this is what Alvare means.  If she just means that because most Americans are religious after a fashion, then sheer numbers dictate that few Americans are motivated to become better people by secular considerations, that may be true as a matter of mathematics but also fairly meaningless.  It certainly won't tell us how many non-religious people, as a percentage of the non-religious, are motivated to become better people.  It also does not tell us how many religious people are successfully motivated to become better people by non-secular considerations.  Again, much of the work may actually be being done here at the definitional level, but if we take her comment more seriously than that, then I am not sure she is right.

The other proposition also demands some inquiry, I think.  

To begin with, in fairness one should note that liberalism's "standard prescriptions" for addressing "social problems" are actually quite capacious and varied.  It is not necessarily inconsistent with liberalism, for example, to advocate social norms against sexual promiscuity, a preference for sex within marriage, and so on, although not every liberal would agree with these norms. 

Second, I'm not sure what the words "just don't work" mean here.  Does this mean they don't work at all?  Clearly that can't be so.  Does it mean instead that they don't work well?  I would still question this.  One might argue that they however well they work, they also carry costs that outweigh their benefits; that, for instance, birth control has contributed to women's social emancipation but has also carried many unanticipated costs in terms of STDs, social anomie, and so on.  That may be true, but it will take a lot more heavy lifting to prove this point than this excerpt seems willing to provide.  It is also, of course, a point that can be generalized much more widely.  We could say the same thing about the unintended consequences of, say, advances in electronics and industrial technology, which have been emancipatory but also had countless unintended consequences; but it would seem silly, or at least too hasty, to say that these advances "just don't work" as responses to social conditions.

Finally, if this proposition is going to be meaningful, it seems to imply some kind of comparison.  The question should be, how well do liberalism's "standard prescriptions" work as against some other set of prescriptions?  That strikes me, again, as a complex question.  Some other mechanisms for social amelioration may (or may not) do better than "liberalism's standard prescriptions" at addressing "unwanted pregnancies, births out of wedlock, STDs, and family breakdown."  But fairness dictates that we acknowledge that those non-liberal prescriptions may themselves result in other unanticipated consequences or costs.  It might be that, say, strong non-liberal prescriptions in favor of binding marriages and against non-marital sexual congress will deal well with "births out of wedlock" and "family breakdown."  But is also possible that the same prescriptions could lead to increases in marital and non-marital rape, child abuse, poverty, the subordination of women, job and wage discrimination, and so on.

I am not at all asserting that this is the case.  And, of course, it is clear  that most people who argue for non-liberal "prescriptions" for addressing "social problems" do not want to see any of these side-effects occur.  (I take it by the same coin that Alvare would agree that the vast majority of liberals do not want to see unwanted pregnancies, STDs, family breakdowns, and so on.)  My point is that asserting that the standard liberal prescriptions for social problems "just don't work" strikes me as an unwarranted strong statement.  It is certainly one that cannot be met with a nostalgia for periods in which other mechanisms of dealing with social problems were employed, unless one is willing to fully consider and count the often serious side-effects that accompanied those prescriptions.  Maybe that should make both sides more willing to see both liberal and non-liberal efforts at social reform as an ongoing, evolving, iterative and potentially cooperative process of social learning, instead of a forced, once-and-for-all choice between one or the other mechanism for addressing social concerns. 

How I Write?

Via The Faculty Lounge, here's an interesting story from the Wall Street Journal about how writers write -- where, when, how they plan their books, how they avoid writer's block, how much they throw away, and so on.  We've talked a fair amount on this blog about the "why I write" question but less about the "how I write" question.  I'd love to hear from people about how they get their most productive work done.  Given that I'm in the process of writing two books, the question is of some urgency to me.

For myself, I would give a couple of answers.  For most major projects, I (or a combination of my research assistant and I) transcribe all the little quotes, sections, and arguments, along with my occasional marginalia, from the articles and books I'm reading into a single document, with cites and page references noted, so that once I'm writing, instead of combing through all the work I've read I can refer to a relatively discrete document.  (Although my "source notes" document can run to 80 or 90 single-spaced pages.)  For the most part, I don't commit words to paper until I've gone through this process; I'm not one of those who can start writing with "fill in later" or "cite tk" peppered through the draft.  My first drafts thus take quite a while to come together, and the process often fills me with a certain sense of nausea or of approaching an unclimbable hill, but they also tend to be fairly polished and in far less need of multiple drafts.  There are second and third drafts, to be sure, but the first one is often quite close to the final result.  Typically, for a longer project, I'll also do a fairly full outline for each section or chapter.  Although I still often have to work my through the argument(s) in each section, I have a fairly strong sense by that time of what will go where and how the course of the argument will proceed.  Although I can go for weeks without writing (and in a mire of self-loathing and borderline panic), once I start a lot can get written at a time.

That's my general approach, but I think there's some value in messing with your method now and again.  It's fun to challenge yourself from time to time by trying something different.  Maybe that means a new genre.  Maybe it means trying some approach you've seen and admired elsewhere.  Maybe, a la Peter Gabriel recording his third solo album without cymbals, it means aiming fairly deliberately and experimentally for some goal or other.  (For example, can I write a piece without (excessive) commas?  As you can imagine, this is one I usually fail, although striving for it helps to discipline my sentences.)  Occasionally, and for the right kind of piece, it does mean trying the approach of just writing freestyle and then filling in the blanks later.  

I really would love to hear what works -- or doesn't! -- for others.  That goes especially for books.  I'm enjoying writing these books immensely, but it is decidedly a different kind of challenge. 

Philosophers Without Gods (and the First Amendment)

Philosophers Without Gods: Meditations on Atheism and the Secular Life, a collection of essays on atheism by a number of leading philosophers, recently received some notice in legal circles, at least for those who were watching carefully, when Brian Leiter drew on one of the essays in the collection, Simon Blackburn's "Religion and Respect," in his provocative article Foundations of Religious Liberty: Toleration or Respect?  It's an interesting collection and well worth your time if you're interested in these issues.  Like most collections, of course, it is uneven.  Some of the pieces strike me as very generous toward religion and religious experience.  Some of them are highly critical of religion and religious belief but also extremely well-argued and raise important points.  A few strike me as sounding a highly dogmatic note while criticizing religious dogmatism, or as either using a straw-man definition of religion or treating fundamentalism as the only form of religion.  (A couple of papers argue more persuasively that fundamentalism is essential to religion properly understood.  Whether they're right or not they at least acknowledge and deal seriously with this question; others just assume it.)  

I could single out any number of articles in the collection that I think make serious arguments that anyone thinking about these issues ought to read, some of which argue strongly for atheism and others of which don't take a strong position for atheism but do raise important critical questions about religious belief.  Perhaps unfairly, though, I want to focus on a passage that I found striking but quite wrong.  It raises issues that Rick and others have recently talked about here on Prawfs.  

The passage comes from Walter Sinnott-Armstrong's piece, "Overcoming Christianity."  Writing about arguments for and against stem-cell research, Sinnott-Armstrong writes that the evidence of public discussion convinced him that "there were no non-religious reasons against stem-cell research."  He asks a former government commission member whether the fact that government nevertheless opposed stem-cell research "conflict[s] with our Constitution's clauses on religion," and says: "His answer was clear: 'Yes.'"

With all due respect to Sinnott-Armstrong and the person who answered his question, I think the equally clear answer is "No."  The fact that the government had or has not acted on stem-cell research does not violate the Religion Clauses, even if the reasons that individual government officials have for not acting are purely non-secular.  (I leave aside the question whether there are any "secular" reasons in favor of stem-cell research, what it means to call those reasons "secular," and whether the underlying moral premises in favor of or against stem-cell research, whether secular or religious, are especially capable of meaningful public discussion.)  I think this is a misunderstanding of the Religion Clauses and their role in public discussion, and as recent events show, not an infrequent one.  

To the book's credit, a much more perspicuous point is made three essays later by James Tappenden, who writes: "When specific details of religious doctrines are appealed to as justification for public policy decisions, or more generally as the basis for the treatment of others, the claims should be evaluated with the same standards of evidence we use for other factual claims in the public domain."  I think his use of the phrase "factual claims" is misleading here, or rather misses the point -- I would think that most such arguments rely on religiously based moral claims rather than factual claims about the details of religious doctrine.  But I agree that just as it does not violate the Religion Clauses to have and make religious arguments for or against some public policy, so it does not violate them to hold those arguments up to public scrutiny and criticism.  Religious arguments are no less entitled to play their part in public deliberation than any other form of argument, and they are not entitled to any greater respect than any other form of argument. 

On "Reshaping the Federal Judiciary"

The New York Times's Charlie Savage has a very Savagesque story today discussing the relative paucity of judicial nominations that have either been made by President Obama or made it through the process.  Savage describes this as "deflating the hopes of liberals that the White House would move quickly to reshape the federal judiciary after eight years of Republican appointments."  

The story provides some useful facts concerning the ways in which recent and pending departures from the White House counsel's office may slow things down still further.  The administration's response to the story -- that it is the number of confirmations and not nominations that matter, and that it is moving methodically and successfully on this front -- does not strike me as terribly persuasive.  It is also the case, when we talk about judicial vacancies, that whether one views the number of vacancies as a crisis or as no big deal tends to depend on who is doing the nominating.  I am mindful of the way that judicial vacancies changed in some eyes seemingly overnight from unexceptional to a "crisis" once the administration changed from Clinton to Bush.  

Still, the story strikes me as a poor one.  It reads very much like many such articles -- as serving primarily as a device for one faction in the Democratic Party to send a message to another faction, and an attempt to define the agenda to their advantage.  (Such maneuvers are of course not limited to Democrats.)  I understand one's perspective often drives how one views this story, and that many Republicans may feel that the Democrats are more aggressive in their judicial agenda than the Republicans when each occupy the White House.  (I don't agree.)  But the story does not seriously acknowledge the possibility either that the White House thinks that other issues on a very crowded political agenda are just more important than judicial nominations, or that it has something else in mind when it comes to restocking the federal judiciary than simply meeting staunch conservatives with staunch liberals -- that it actually likes judicial moderates for their own sakes.  To the extent it acknowledges any of these things, it certainly does not acknowledge that the administration might have a point.

Both the strong right and the strong left seem to overestimate the importance of judges as opposed to other policy matters, and to assume that the reward for any party's victory should be the delegation of judicial picks to their wing of the party.  In my view, the Republicans generally do proceed in this manner when in office, although again it may be my perspective talking.  Either way, there is no reason we have to agree whole-heartedly with this position, as Savage seems to do.  And we should certainly keep in mind the extent to which certain interest groups on both the left and the right lose their raison d'etre if they don't gain power in this area, and thus depend on these assumptions for their daily bread.  

The orientation of these thinkers is evident in the story itself.  From the left, Nan Aron argues in the story that it's wrong to think "Republican acrimony will be reduced" if the administration goes slower and lessens the visibility of nominations.  From the right, Ed Whelan, who is very much on-message, tells Savage: "On judges as on so much else, this administration seems to be much less competent than both its supporters and critics expected."  Both these statements only make sense if one assumes -- as both of these individuals do, and must if they are to maintain their influence -- that the primary goal of any administration should be to stock the judicial ranks with committed liberals or conservatives.  But, of course, the administration may think it has better things to do, or that there are better ways to think of the judiciary than as a gameboard in the culture wars.  It may even think that just because the Democrats take executive office, that does not have to mean that the left gets to run the judicial selection process.  And why should it? 

First Amendment Institutions as Part of the "Unique National Institution" Canon?

Anita S. Krisknakumar of St. John's has posted in interesting paper on SSRN called The Hidden Legacy of Holy Trinity Church: The Unique National Institution Canon.  Here is an excerpt from the abstract:

While Holy Trinity has been much-discussed in the academic literature and in judicial opinions, the discussion thus far has focused almost exclusively on the first half of the Court's opinion, which declares that the "spirit" of a statute should trump its "letter" and relies on legislative history to help divine that spirit. In th[e] [neglected] second half, the Court tells a detailed narrative about the country's historically Christian roots and explains that, other interpretive rules aside, the statute simply cannot be construed against the church-because the United States "is a Christian nation."  This Article maps the methodology of the Holy Trinity Court's "Christian nation" argument and contends that that methodology constitutes an interpretive canon in its own right -- one which perhaps aptly can be called the "unique national institution" canon. The Article goes on to demonstrate that this interpretative canon has reared its head in a number of statutory interpretation cases decided since Holy Trinity. In Flood v. Kuhn, for example, the Court, in determining whether the antitrust laws govern baseball's reserve system, paid lengthy tribute to the historical and national significance of baseball in a manner (methodologically) reminiscent of the Holy Trinity Court's Christian nation argument. 

This paper should be of interest to those of us who have written about so-called "First Amendment institutions," and conversely Krishnakumar might learn from that literature that the kind of phenomenon she is discussing may be more widespread than she supposes.  Her discussion cannot help but evoke, for First Amendment scholars and institutionalists, echoes of the Court's discussion of universities in Grutter v. Bollinger as occupying a special niche in the constitutional tradition, or its suggestion in the American Library Association case that public forum doctrine was out of place in the case, which instead called on it to reflect on the special nature and purpose of libraries.  It also evokes the ministerial exception doctrine in law and religion, which has always been difficult to locate in a particular portion of the Religion Clauses and which also has much to do with the statutory backdrop in which it occurs.  By discussing these kinds of phenomena specifically within the tradition of statutory interpretation, Krishnakumar may lead First Amendment institutionalists to think about institutionalism as an interpretive canon or strategy, one that has quasi-constitutional status but is not necessarily tied to particular constitutional provisions.

Conversely, Krishnakumar might take something from the institutionalist literature.  Although her intuitions about how and why this canon of statutory interpretation has developed is thoughtful, it might benefit from work that has already been done on First Amendment institutions.  The "unique national institution" canon might have much to do with the questions of epistemic and legal authority that sometimes compel courts to defer to other "institutions," broadly understood, a point I develop in my paper Three Faces of Deference.  And Krishnakumar might, in the First Amendment literature, both find further examples of the unique national institution canon and think about how this canon can function at the level of constitutional interpretation as well as statutory interpretation.  In short, there's much we can learn from each other.  I encourage folks who are interested in First Amendment institutions to read this valuable paper, just as I encourage Krishnakumar to explore the First Amendment institutions literature.

Ah, Sweet Mystery of Journalism

The New York Times has an entertaining story about Justice Kennedy's recent appearance at the New York private school Dalton (think Gossip Girl with, hopefully, better music).  The story reports that Justice Kennedy insisted on approving, in advance, any article in the school paper about his talk.  There are the usual quotes from journalism experts complaining that this is no way to teach the students journalism, and from the Court's information officer and others defending the Justice's request as simply being intended to ensure that he was accurately quoted.

I tend to agree with one person in the story that this was "a request that shouldn't have been made," although I mean that with less heat behind it than the person quoted.  On the one hand, sources are free to try to negotiate terms with reporters before speaking -- just as journalists are free to push back on those terms as hard as they want to.  On the other, it seems unlikely to me that a story in the Dalton school paper that accidentally switched Justice Kennedy's use of "which" to "that" would cause any serious damage to the public image of the Court.  

But what really captivates me about the story is the idea of Justice Kennedy as newspaper editor.  Can you imagine his flowery buried ledes?  ("Schools are a repository and font of knowledge, a place for the youth of our Nation to gather in all their diversity to learn the undying lessons of democracy, and -- in certain health classes -- a forum in which they can learn about the sweet mystery of life.  Last night, the Poughkeepsie school board, enacting a democratic ritual hallowed by time and following in the footsteps of Jefferson and Madison, voted to support a bond issue for construction of a new boys' bathroom.")  His many Rubicon-crossing moments of private contemplation before publishing, say, a story about city council debates over whether to build new speed bumps?  Would the poor paper ever get published on deadline?  The mind reels with possibilities.    

"Self-Promotion" and Institutional Promotion

Paul Secunda's posts on self-promotion are very useful and I hope ambitious scholars, whether junior or senior, are taking a look at them.  One point I want to emphasize, by way of friendly amendment rather than suggesting any tension with Paul's own posts, is that a focus on "self-promotion" should not obscure the value and necessity of institutional promotion.  It seems to me that, done right, promotion of oneself should go hand in glove with promotion of one's institution -- even if the purpose of that promotion is (in part) to position yourself for the possibility of moving elsewhere.  I'm not suggesting that if your institution is genuinely lousy, you should pretend otherwise, although I imagine most institutional change will be effected by people who are working more or less within the institution rather than just bad-mouthing their institution around town.  But most of us are more or less happy with our institution, even if we have thought about eventually going elsewhere, and most of us have reason to be grateful for the support our institution has shown us -- say, by hiring us in the first place!  So, when you are promoting yourself, you should not neglect the obligation to dance with the one that brung you, even if you're also thinking about a future dance partner. 

What does that mean?  For one thing, as I've said before, it means not "hiding your nametag."  Anyone who has been to an AALS conference knows what I mean here.  Take some pride in your institution, regardless of where it stands on the food chain, and don't act as if you're ashamed of it or as if you have one foot out the door.  For another, as long as you're talking about yourself and your work on social networking sites and elsewhere, it means taking public note of the good work being done by your colleagues and your institution.  It also means recognizing that even as you're spreading your name around in various public circles, there is much you can do to build your institution at home -- championing workshops, hosting symposia, supporting junior colleagues, and so on.  Be a good citizen of your institution, even if you're digging out your passport for future travels.  

Institutional promotion is not only an obligation in itself, it is also complementary to rather than in tension with promotion of oneself.  Although you may travel far on your own merits, you will travel further if you come from an institution that people think is doing good things and hiring good people.  The more prominent your institution is, the more prominent you will be too.  And, when the phone calls start coming around from people who want to know from your colleagues whether you would be a good addition to some other school's faculty, it will help (duh) if you have not alienated your own colleagues by acting as if you're too good for them, and if they can say cheerfully that you have been a good institutional citizen and a good colleague and are likely to contribute in a similar fashion to the next institution.  You will leave friends behind, who will continue spreading your good name, rather than people who grumble about you.  You will also have a happier experience at your home institution and make it a better place to be, so that if your lateral move doesn't happen at all or takes longer than you thought, you are still making the most of your time there rather than becoming embittered.  I think institution-building is an obligation of every faculty member, whether they want to move or not, just as I think self-promotion is a perfectly reasonable and, if done right, entirely ethical aspect of one's professional work.  But it is nice to be reminded that institution-building can also be a healthy and effective part of self-promotion.   

Democracy as the Rule of Law

I have posted a new paper on SSRN, titled Democracy as the Rule of Law.  Here's the abstract:

This paper is a chapter for a forthcoming book, Prosecuting the Bush Administration: What Does the Rule of Law Require? The book does not debate whether the Bush administration violated the law in the course of the War on Terror and the wars in Afghanistan and Iraq through such actions as torture. Rather, it assumes for purposes of debate that violations of the law occurred, and asks, if that is so, whether the rule law requires prosecution.

This contribution takes this question as an occasion to examine the tangled relationship between three essentially contested concepts: democracy, the rule of law, and transitional justice. It proceeds fairly unsentimentally, assuming that these concepts are not especially helpful as simple invocations and that they should be viewed as pragmatic rather than metaphysical goods. It makes two main arguments. The first, which many other critics share, is that transitional justice consists largely if not entirely of a pragmatic and political balance between democracy and the rule of law. It requires a consideration of what I call the “costs of settlement” - a balancing of past investments in and future costs to the stability and viability of both democracy and the rule of law. As such, both transitional justice and the “rule of law” itself, despite the latter term’s usual assumption of universality, may require different approaches and different compromises in different societies.

The second argument concerns the relationship between democracy and the rule of law. Many theorists treat these goods as distinct, if related, concepts, and tend to treat the rule of law in largely juridical terms, assuming that the rule of law demands the remedy of law, particularly in a prosecutorial form. This approach tends to miss something important. It fails to recognize that there may be a distinction between the rule of law and its implementation; and it obscures or neglects the possibility of treating democracy itself as one method of implementing the rule of law. The rule of law can be and, especially in stable democratic societies, often is implemented not just by and within the juridical process, but in the ordinary operation of the political process itself. Those critics of the Bush administration who argue that the rule of law demands a prosecutorial response to that administration’s allegedly lawless actions may neglect the degree to which the very fact of the administration’s passage out of power has itself provided a sufficient response, albeit perhaps an incomplete one. Democracy, in short, can be seen not as distinct from the rule of law, but as a form of the rule of law. I argue that, given the balance of the costs of settlement in this case - that is, the potential costs to both democracy and the rule of law of proceeding by a juridical route rather than through the ordinary political process - it may be that the democratic process has provided an adequate response to the Bush administration's alleged misdeeds, and that a prosecutorial approach would involve more costs than benefits for both democracy and the rule of law.

Comments are decidedly welcome.

One of These Things is (Not) Like the Other?

Via Legal Theory Blog, I see that Nelson Lund has posted a review of Philip Hamburger's magisterial (so to speak) book Law and Judicial Duty.  His review can be found here; my own short review, published in Engage, is here.  It's a good read, although I think that by emphasizing what he sees as the fixity of the concept of "judicial duty" rather than its development, Lund may overstate the degree to which we can leap from a conception of judicial duty in the Founding Era, which is where Hamburger's book more or less ends, to a conception of judicial duty in our own age.    

What interests me for present purposes, however, is his introduction.  Lund starts by writing that then-nominee presented herself "as a judge who has never done anything except apply the law to the facts, and never will do anything else."  He says that she maintained this position despite "many speeches and law review articles in which she had articulated a rather different account of what judges do."  He refers here to her now-infamous "wise Latina" speech, in which she says that "there can never be a universal definition of" wisdom, and that "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."  Finally, he brings in then-Senator Obama's own statement that "adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a Court," but that in five percent of cases "the critical ingredient [for decision] is supplied by what is in the judge's heart."  As I read him, Lund sees a contradiction between these positions.  But is there one?  Although I think everyone's language is faulty in these quotes, and that Sotomayor certainly tried to finesse her views before the Judiciary Committee, I am less certain that there is a clear and obvious contradiction between these positions.      

A Fine Old Cannibal

The New York Times tonight runs an obituary for Claude Levi-Strauss, the influential anthropologist and structuralist (although he was not totally crazy about the term, evidently) who died at 100.  Mindful of last week's 30 Rock, I hope the intellectual version of the Rule of Threes doesn't kick in.  Two interesting details I wasn't aware of show up in the obit.  First, one of his degrees was in law.  Second, before teaching at the university level, Levi-Strauss taught in a Paris high school, where his colleagues included Sartre and de Beauvoir.  I'm sure the staffroom gossip was memorable.

Everyone reading at home may now mournfully cue the Fine Young Cannibals on their Ipods.  

More on "Who Cares"

Marc has written a typically thoughtful and lovely piece on the question of "Who Cares?" about legal scholarship.  It's a question we've wrestled with here from time to time.  I seem to recall a dialogue some time ago about "Why I Write."  Let me take my own cut at the issues Marc has raised.  My short-form takeway is this: "Who cares" is the wrong question.  The right question should be, "Why is this interesting?"  

We could start by dividing the "who cares" question into two separate questions: "who cares" in a practical sense, and "who cares" in a more abstract sense.  Let's focus on the former question first.  Some legal academics (still!) insist that legal scholarship must have a real-world payoff, usually one in the nature of legal reform.  Based on his response to Marc's answers, his interlocutor strikes me as being among this category.  I suppose we could further subdivide these people into two categories: those who want legal writing to have a broader impact on making ours a more just world, and those who want it to have an immediate practical impact.  

People in this category are making an argument about legal scholarship's practical impact.  And I think they are caught in a bind -- namely, the question why they are legal scholars in the first place.  Almost no legal writing, as a practical matter, has an impact on the first, justice-seeking level, and even then it rarely happens quickly or alone.  Certainly the mere "justice" of your proposal is unlikely by itself to lead to changes in the world.  For such people, it would be better to attempt to make your arguments in a different forum and in a different fashion.  You should engage in politics, journalism, and other areas of "moral entrepreneurialism" in which your justice-seeking arguments are more likely to have traction.  You might be a legal scholar, but your real goal will be to succeed outside of legal scholarship.  Indeed, it is arguable that those legal scholars who have succeeded in this broader fashion (say, Catharine MacKinnon) have succeeded in this goal more as moral entrepreneurs than as legal scholars as such.  Not to say their scholarship hasn't been important, but it has been successful in this goal of changing the world because it has adopted strategies from outside of legal scholarship.  So it is not clear that they should care about being or remaining legal scholars except to the extent that it serves the practical goal of having a desk, a salary, and some authority to add to their arguments -- all of which might be outweighed by the possible benefits of becoming full-time moral entrepreneurs.  Some senior faculty at major law schools indeed seem to me to have dropped out of legal scholarship as such to become full-time moral entrepreneurs, public intellectuals, etc.  In short, if you write to "change the world," in a big sense, as one scholar once wrote, it seems to me you may be in the wrong business, at least if that, and not some combination of that and personal concerns like prestige and luxury, is your real goal.

The bind is even greater for those who only want to have an immediate practical impact on legal reform -- a better UCC, a better approach to child abduction cases, better employment discrimination law, etc.  If their goals are really that practical, they must realize that few interventions in this area that take the form of legal scholarship are likely to succeed for a variety of practical and material reasons.  So, if that is their goal, they must consider whether they would in fact have more of a positive impact on the world and on legal reform if they abandoned the academy entirely to become criminal lawyers, corporate lawyers, lobbyists, politicians or political aides, and so on.  Perhaps they conclude that they would in fact be worse at being, say, criminal defense lawyers, than at just writing about criminal law, even on a practical level.  And they may be right!  Not every legal scholar is a great practicing lawyer who just happened to want to be a scholar instead; some of us are in fact playing to our strengths and avoiding our weaknesses when we leave practice for the academy.  But this should lead them to be very modest in their hopes for what legal scholarship can achieve, and very tolerant toward the work of other scholars.  Or perhaps they just conclude that, even if they could do more good as criminal lawyers than as criminal law scholars, they like their creature comforts more than they like changing the world or some corner of the law.  That's fine too -- in fact, I think it is often the case for law reform-minded academics, however high-minded their public justifications may be -- but these people too should be very cautious about trying to justify the "who cares" questions on practical grounds.  I think, in fact, that for the truly practical, law reform-oriented scholar, they really should ask the question why they are still legal scholars every day, and in many cases should conclude, at least if they put aside selfish concerns like having a nice office and being called "Professor," that they would achieve more in the world if they quit legal academics and got (back) into the trenches.  

In either case, Marc's answer to this form of "who cares" question ought to be something like: if you mean, will it change the world, ultimately it probably won't, and in an immediate sense it almost certainly won't.  To which he should add, perhaps sotto voce, "Hypocrite lecteur -- mon sembable -- mon frere!"  

Then there are those who ask the "who cares" question in a more abstract sense, and about more abstract scholarship.  This seems to me to be a better way of asking the question.  But what do we mean by "who cares" in this more abstract sense?  This can have at least two possible meanings.  The first has to do with normative implications.  Some legal scholars (still! -- and I know one of my co-bloggers is one of them) insist that legal scholarship, even of a more abstract kind, must have a normative payoff, and that purely descriptive legal work is somehow deficient.  I can understand this as a taste or preference, but I really don't understand it as a strong "who cares" argument.  If you are genuinely not one of the practical "who cares" types, then why should you care, except as a matter of personal preference, that some otherwise excellent work doesn't have a normative payoff?  If you still do, aren't you really just a warmed-over practical-who-cares person, and one who has, at that, by already taking the leap to accepting more abstract or theoretical work, already put yourself at a further remove from any likely practical payoff?  

The other possibility is that this non-practical interlocutor means "who cares" not in the sense of demanding a normative payoff, but just in the sense of asking, "Why should we care about this particular work, taking as a given that we require neither a practical payoff nor a normative stance?"  I doubt this was the position of Marc's interlocutor, but I think this is the kind of question that legal scholars (and scholars of all stripes) can and should ask themselves.  But as Marc has suggested, this form of inquiry depends very little on the existence of a particular "who" who is around to "care," and suggests a very capacious sense of what "caring" might mean.  It is really just a form of asking, as scholarship for scholarship's sake, is this work any good?  That, as I say, is a question we all should ask.  But it doesn't demand caring a fig for actual audiences or implications or payoffs.  It just demands that the puzzle you are working through be a worthy one, and that you work through it in a worthy way.  It should not be banal, or warmed-over, or redundant, or sloppy, although it need not fully answer any questions or suggest any payoffs.  It seems to me that to this kind of question, all Marc needs to answer is, not "who cares," but "This work is interesting because..." And, perhaps in addition or perhaps as an implicit part of that answer, "And the work is done in a worthy fashion because..."

Which leads me to a final question, this time aimed directly at Marc.  Given this, Marc, why should you care, except in an entirely understandable personal fashion, whether your work is put to harmful use?  Or, and I think you might accept it this way, does that question have anything to do with the "who cares" or "is it interesting" question?  You might not want to publish a paper called "How Rogue Nations Can Easily Obtain and Weaponize Nuclear Materials," but is that quite understandable unwillingness to publish relevant to the "who cares" question?        

Rand Without Tears

Adam Hirsch has a well-written review in this Sunday's New York Times Book Review of Anne C. Heller's new biography, Ayn Rand and the World She Made.  This is one of two recent bios of Rand.  The review is worth a look (especially for those who, like Tom Townsend in Metropolitan, prefer literary criticism to novels and, presumably, book reviews to books).  I was a Rand fan as a youth, until my hard edge was blunted by a fortuitously-timed lost weekend in Montreal and my first encounter with Kerouac's writing.  (Apparently, it takes a cliche to beat a cliche.)  I still reread her epic novels from time to time, without shame or caveat, and still find them alternately gripping and awful.  But I like this paragraph from Hirsch, which I think accurately captures some of her attraction:

Rand’s particular intellectual contribution, the thing that makes her so popular and so American, is the way she managed to mass market elitism — to convince so many people, especially young people, that they could be geniuses without being in any concrete way distinguished. Or, rather, that they could distinguish themselves by the ardor of their commitment to Rand’s teaching. The very form of her novels makes the same point: they are as cartoonish and sexed-up as any best seller, yet they are constantly suggesting that the reader who appreciates them is one of the elect.

The Trials of Academe

Rick commented the other day on a recent column by Stanley Fish about the death of academic abstention.  The Fish column drew on a new book by Amy Gajda of the University of Illinois (Law/Journalism) called The Trials of Academe: The New Era of Campus Litigation, published by Harvard University Press.  Let me have the pleasure of linking to its Amazon page so that everyone can do the right thing and rush out and buy it.  I got my copy last week, and although a full read will have to wait while I wade through the philosophy of religion, a quick look suggests to me that this will be a great read and a very promising entry in the discussion of academic freedom and the legal status of the university -- and a fun and funny one at that.  Academic freedom expert Michael Olivas says, in his book blurb, "Run, do not walk, to get this book--a great read on a wonderful topic. Amy Gajda is a terrific writer, generous but with real critical bite. For all her irreverent and funny style, her case that academic decisions are increasingly out of academic hands is persuasive and provocative."  I think he's right.  I had the pleasure of seeing Amy present an early chapter of the book at a conference organized by Michael, and I congratulate her on bringing the ship into port in such high style.  (Hat tip for the metaphor goes, I think by a process of mental osmosis, to Season Two of The Wire, which I'm watching right now between philosophy-of-religion bouts.)  As the saying goes, read it while it's hot.  

Angels in the Backfield

Here is an interesting story in the Times about a Georgia town in which a post-9/11 practice in which the cheerleading squad at a public high school "painted messages like “Commit to the Lord” on giant paper banners that the [football] players charged through onto the field."  After someone raised concerns about this practice -- and, in one of the many fine twists in the story, that someone was a graduate student at Liberty University, who did not object to the practice but thought it raised legal concerns -- the school stopped it.  The result was not a silencing of religious speech but a profusion of it, as fans in the stands took to bringing placards and banners bearing religious messages.  

I'm one of those folks who thinks that Santa Fe Independent School District v. Doe was rightly decided, certainly in the absence of and probably even in the presence of any concerns about the scope of that decision given its posture as a facial challenge.  I am not insensitive to, but not persuaded by, the individual quoted in the story who says, "I understand that the majority doesn’t rule, but it seems unfair that one lady could complain and cause all of this to stop."  But I also think the profusion of private religious messages is fine and dandy.  The story, in any event, is a good one for students of these issues.   

And Don't Forget About Neil Peart....

At the Volokh blog, David Bernstein has a post about those "touchy Canadians."  He writes:

Some Canadians are rather touchy about criticism from Americans regarding freedom of speech in Canada. The irony of this touchiness is that the Canadian Supreme Court has based its free-speech jurisprudence, at least in the context of antidiscrimination concerns, in large part on the theories of left-wing American academics such as University of Michigan professor Catharine MacKinnon. The Canadian left has a penchant for importing left-wing ideas from the U.S. and elsewhere, adopting them as public policy, and then accusing anyone who objects of being “anti-Canadian” because these policies somehow define Canadian identity. I like Canada a lot myself, but I should hope that there is more to Canadian identity than national health insurance, gun control, and aggressive hate speech laws.

David expands on his post in the comments section, which is fairly lively.  I put up an even longer comment in response, the gist of which is that I think things are good deal more complex, both as to Canadian law and Canadian culture, than David's description suggests.  I hereby incorporate it by reference.   

UPDATE: David has written a very gracious comment on this post suggesting that I simply reprint the comment, which I have done below.  I'm grateful for such a civil and productive discussion!  The comment itself could have used some editing, and doubtless would have been better edited if it were a primary post and not a dashed-off comment, but I have reproduced it warts and all.

David, speaking as a Canadian, albeit a quite voluntary Canadian expatriate and, one of these days I hope, American citizen who prefers the jurisprudence of the First Amendment to Canadian freedom of expression jurisprudence, I have to gently take issue with your post and your gloss on it in the comments. I say “gently” because, like any generalization, it contains important germs of truth, and pointing to contrary impressions or anecdotes will not refute them. But I do think the picture is a little more complicated than you suggest, unless you are making an observation that is so specific by definition as to defy drawing any larger conclusions. 

One distinction I would draw is between the reception of American law in the eighties and early nineties in Canadian constitutionalism, which was more apish and had much to do with the fact that many of the then-rising generation of Canadian constitutionalists got their start as American LL.M.s and were simply importing American scholarship in a fairly mechanical way in the absence of a more detailed sense of Canadian constitutionalism, and the treatment of American law today, which seems to me an era in which Canadian law stands far more on its own bottom. The wholesale and mechanical reception of American constitutional law in Canada today is far rarer, and for that matter the citation of American law and scholarship is more infrequent. Also, it should be said that to the extent there is still borrowing, the transplantation now is more complex; it’s not simply a matter of taking foreign materials in toto, but of grafting them on to a fairly developed body of Canadian constitutional thought. I may disagree with some of the currents of that thought, but the whole matter is more complex, I think, than the picture you draw. 

Moreover, there is an increasing, although still minority, trend of thought in Canadian constitutional law, both of foreign origin and autochthonous, that criticizes some of the directions in Canadian constitutional law that you discuss, both as to general constitutional law method and as to freedom of expression. Indeed, there has always been a substantial opposition to views such as those stated by the majority in Butler, although now there are also interesting views questioning, say, the living tree and dialogue metaphors of Canadian constitutionalism.

I also, again without denying its existence entirely, would tend to disagree gently with your view that the left draws on American law and ideas freely when it serves its purpose and then accuses those who object to these ideas of being anti-Canadian. For one thing, it is vanishingly rare for someone in Canada to use the term “anti-Canadian.” For another, the leftists I know do not draw all that much on American thought anymore, and certainly not in a wholesale fashion; they draw on all kinds of sources of thought from all kinds of places, including the US, and I think they tend to do so in a more complex fashion than your description might suggest. Third, to the extent there are debates within and between the left and right about what constitute “Canadian” social values, which there certainly and legitimately are, I think they are more genuinely debates about those values themselves than they are debates about where the values come from. And those values, right or wrong (and right or left), really are Canadian in their own way; they’re not just borrowings from the US, and certainly don’t end up just being absolute twins of the versions that have circulated at various times in the US. 

Again, my point is not that what you have said is not true; of course there are some Canadians who meet your description. Nor is it to agree with Canadian thought on these issues, although on my reading there is not in fact a Canadian consensus on these issues. It is rather to suggest, if for no other reason than that I would hate to have American readers assume otherwise, that it is not the whole story, even about the Canadian left, and it may not (does not, I think) reflect the rhetoric or thought processes of a majority of Canadian thinkers of any ideological stripe. I do think there are too many Canadians whose language suggests a reflexive wariness about or defensiveness toward Americans, but I think this masks a far more complex relationship among even those Canadians toward American thought, culture, and values, which is quite different in practice than that rhetoric might suggest.

Two last points on a long comment which I could have just slapped onto my own blog. First, although it was not fully my own culture, there certainly are aspects of Canadian culture and identity that have their own substance and go beyond the few things (gun control, say) that you mentioned. I’m sure you know this and were speaking somewhat tongue-in-cheek, but certainly there can be thicker conceptions of Canadian culture and identity than this, and it is not right, although I also sometimes fall into this, to say that Canadian identity is just a negative space, let alone one defined solely by the United States. Second, in response to the commenters who suggested that Canadians believe in limits on rights while Americans don’t, or that Americans don’t believe on such limits except for those benighted elites who sit on the Supreme Court, this seems like a partially phony distinction. Many Americans and many Canadians may have different notional views of rights, although of course there is diversity on these questions. But in practice Canadians do believe that rights can overcome limits and do in many cases, and in practice Americans believe that rights can be overcome by limits and reach just that result in many cases, although sometimes by defining the rights in terms of their limits rather than engaging in explicit balancing. Both rights AND their limitations seem like pretty conventional and (notwithstanding the view that the Court has somehow imposed this on us against our will) perhaps inevitable aspects of liberal constitutionalism, in the US and elsewhere, although we can conceptualize these in different ways. 

Alito on the "Catholic" "Majority" "Issue"

Here's a story on an issue we've written about quite often at Prawfsblawg.  In it, Justice Samuel Alito complains about the recurring nature of "what he called persistent questions about the [Supreme Court's] Roman Catholic majority.  He complains about "serious people who have seriously raised the questions in serious publications about whether these individuals could be trusted to do their jobs."  Our own Rick Garnett is quoted in the story, arguing: "[I]t's not the calling of a Catholic judge to enforce the teachings of the faith. It's the calling of a Catholic judge, as well as he or she can, to interpret and apply the laws of the political community."  Rick also points out, quite fairly, that "[n]o one thinks the moral commitments of a judge are irrelevant. I don't think anybody can completely put aside who they are."

This seems right to me.  My view of this "issue" and its complexities is evident from where I chose to place my scare-quotes in the title to this post.  Rick might also have pointed out that, for better or worse, there is no guarantee that any individual Catholic will understand himself or herself as having any particular Catholic mission, no matter how anodyne, to carry out, which raises the question whether one can even talk about a Catholic majority for any purposes other than census-taking without knowing a lot more about the justices in question.  At the same time, Rick is also right that, just as no rule of law or public discourse should restrict the ability to stock the Court with Catholics or anyone else, no rule of law or public discourse should absolutely foreclose people from asking -- but in a sound and fine-grained manner, not a crude or bigoted manner -- about the fundamental commitments, religious or otherwise, of any judge, Catholic or not.  To that extent, while I agree with Alito in marveling at some of the rather silly arguments on this question that have been made by serious people in serious publications, I do not think it is impossible or impermissible for serious people to ask serious questions in serious publications about these issues (Sandy Levinson being exhibit A here).  The questions, like the Justices, need to be examined on their own merits, although in my view some of them fail to pass muster.  In any event, you give good quote, Rick.

Bill Donahue, of the Catholic League for Religious and Civil Rights, is also quoted in the story, and he is also in typical Donahue form.  He argues that this is all about abortion: "The people who are complaining about Alito and Roberts are the same people who would have nine Nancy Pelosis on the Supreme Court who are pro-choice Catholics."  That may be right for some individuals who have raised these questions in a crude fashion, but of course Donahue fails to reflect on the old saw about what's good for the goose. 

      

More on Choosing Among "Lower-Tier" Schools

A commenter on Jack's first post on when and whether to accept offers from lower-ranked schools wrote that this is a question of some importance that he or she has not seen discussed elsewhere.  I suspect there are other discussions out there, and that I have even contributed to them from time to time, but I agree that too little is said about this.  Jack has helpfully contributed another post on the subject, and let me also add some more thoughts.

First, let me give the usual disclaimer, which, as a friend said to me last night, is often delivered with such fervor as to approach hypocrisy: I am not speaking up for the US News rankings, or for that matter for other and better ranking systems.  They all have a heuristic value, some much more so than others, but they are all also just an approximation and will necessarily not reflect many important aspects of both the schools under examination and your own preferences.  It is one thing to use rankings as a proxy absent other information, or to save time.  But if you have more time and can accumulate more information, it makes sense to do so given the importance of the decision where to spend your personal and professional life.  I think some lower-tier schools are highly underrated, that others are not, and that some higher-tier schools are either underrated or overrated.  And even if all the US News rankings were right, again, they might not reflect your own preferences.  But we all use them to some extent and I will take that as a given in this discussion.

Second, as a commenter on Jack's post notes, there is often, and to a greater extent than at the top schools, something of a generational divide -- not necessarily one of pure chronological age, but rather one of time of hiring -- between junior and senior professors at lower-ranked law schools.  This should not be overstated, and a new prof coming into such a school should not make the snobbish assumption that he or she has nothing to learn from these senior professors, many of whom make all kinds of non-scholarly contributions to the school, have superb teaching chops, or at some point have been productive scholars.  And, of course, numbers notwithstanding some of these folks are fine scholars who continue to produce.  So don't come in with a chip on your shoulder.  Not only will this be noticed by your colleagues, but you will also lose valuable opportunities to learn from senior colleagues and make friends, sometimes in surprising places.

At the same time, the quality of the juniors being hired is of immense importance for a variety of reasons.  First, not every lower-ranked school is in fact hiring what we might think of as energetic young scholars, although I think the numbers of schools across the board that are doing so have increased greatly; so it makes sense to find out who has been hired and find out whether they are happy there.  This cohort is the future of your school and a prime determinant of its culture, and at many lower-ranked schools one can feel the energy pushing upward from the junior ranks and pervading the entire institution.  Make sure juniors are well-supported, and inquire into whether they have or would support a junior faculty workshop.  If there isn't one, start it yourself.  I have taught at a "lower-ranked school" (unfairly so, in my view), and the life of the junior faculty was a distinct part (although not the only part -- see "don't ignore senior faculty," above) of what made that place a fantastic environment.

The nature of the junior faculty hired also says much about the energy level and direction of the school.  Having been through a dean search and several hiring seasons, I am struck by the extent to which these decisions are not only about signaling to other schools, but about a school, most definitely including its senior faculty, signaling to itself.  It is a way for the faculty of a school to send a message to itself about its expectations for all faculty.  If the senior faculty of a lower-ranked school are nevertheless hiring and encouraging promising junior scholars, then even if they are not themselves terribly productive at the moment, they may be saying that they believe this should be the future direction of the school, that they believe more scholarly energy and engagement is needed and should be a part of the school's ongoing culture.  That's an important cue for people deciding where to go, and you should try to get a deeper sense of this.  Moreover, since it is a way of sending a message about expectations, I believe it sometimes indicates a faculty where the senior members are themselves ready to start writing more, and often follow up superbly on this commitment.  So, once more, do not count out either the talents or the intentions of the senior faculty; treat them as presumptive allies, not enemies.  Also, this kind of hiring mission may indicate that there is someone in command -- a dean or associate dean -- who has an energetic vision for the school's future.  This should be an encouraging factor.

Let me end with two aspects of the educational mission you may need to undertake if you accept a position at a "lower-ranked" school.  First, as I said, if you want your institution to be the kind of place you would be happy teaching and spending an indefinite amount of time, you must be an institution-builder.  Your goal may be to write your way to a higher-ranked school, and I think that is a perfectly appropriate incentive and desire.  But in the meantime, there you are, and of course your future success is not guaranteed.  So don't treat your institution as an embarrassment or a handicap, even if you think you might end up somewhere "better."  Champion your institution.  Become a part of its life, and work to make sure the culture of the place is what you think it should be, keeping in mind that different institutions have different needs, talents, and weaknesses and, given the variety among students, should have different goals; don't just try to remake your school into the elite institution you studied at, but think about how to make it a productive, energetic scholarly institution that is also responsive to its own needs and situation.  Don't "hide your nametag" or act apologetic about where you teach.  This sends the wrong signal, both to your own colleagues and to others, both about the institution and about the likelihood that you will be a good institutional player at some other school.  I am all in favor of self-advancement, and, heck, I myself wrote up.  But you should treat every institution you are at, no matter how long or short your stay there, as your terminal institution and set about advancing its cause and building its culture.  Indeed, this is one way that such institutions slowly improve their reputations -- by seeding the faculties of other law schools with faculty alumni who speak well of their former institution and thus enhance the way their old school is thought of, which in turn helps juniors still at that school in both their scholarly efforts and their own efforts to lateral.  

Second, part of your educational mission will have to do with your friends and mentors at the higher- or highest-ranked schools.  I am always struck by the degree of informational deficit that many well-established professors, most certainly including juniors, at very high-ranked schools have about the schools further down the chain.  As my friend said last night, this may be "rational ignorance," since they may simply not need -- or believe they don't need, rightly or wrongly -- to know more about these schools.  This leads some of them, in advising their students about where to take teaching jobs, to treat the US News rankings in too coarse-grained a fashion, to assume that rankings are all there is and that if a school is lower-ranked one simply must not accept an offer there.  The rest of us do or should know better; we do or should know that some "lower-ranked" schools have productive scholarly environments, increasingly impressive juniors, and an excellent culture and/or resources.  So, first of all, don't take the advice of your highly-ranked professor mentor on these matters as gospel; make your own decisions and gather your own information.  Second, you should make sure that you let these people know about all the good work that is being done out there.  I can say from the accounts of others that professors at top-ten schools who initially believed that some particular school was beneath notice most definitely could be persuaded to change their minds, and approach that school with a very different spirit, when their proteges let them know what was going on at that institution -- who they had hired, what work they had been publishing, and so on.  Do what you can to lift that rational ignorance at the highest levels, both for the sake of your new, "lower-ranked" institution and for your own sake.

"Bigger Than Jesus": An Update

Here's a statement from Italian Prime Minister Silvio Berlusconi, who was mercifully stripped of immunity from prosecution by the Italian Supreme Court yesterday: "I am without doubt the person who's been the most persecuted in the entire history of the world and the history of man."  

And the Nobel Peace Prize Goes to . . . David Addington, Jay Bybee, and John Yoo?

Last weekend, in addition to a brief stopover at a conference at some college in New Haven, I participated in a conference at Amherst College titled "Prosecuting Bush, Cheney and Rumsfeld: What Does the Rule of Law Require?"  As the news release I've linked to relates, the proceedings will be published, fairly quickly, in a book by NYU Press.  In addition to the chance to hang out with my co-blogger Steve Vladeck, I very much enjoyed talks by Claire Finkelstein of Penn (on whom I commented), Nasser Hussain, and others (although I was sad to miss Stephen Holmes's talk.)  The conference was not about whether Bush or any members of his administration violated the law, which would not in my view be a productive discussion.  Rather, the question was, if we assume that they did for purposes of argument (and only for that purpose, in my view, rather than out of some settled assumption), then does the vindication of the rule of law require their prosecution?  My answer was "no," for reasons I develop in a paper that I'll post on SSRN at some point.  Others disagreed in various ways, although that does not mean anyone thought that outcome was either desirable or costless.  

I raise this because of today's news about the Nobel Peace Prize, which Rick has already blogged about.  I am not one of those who gives any special weight to the Peace Prize, so it is largely a matter of indifference to me, although I share what appears to be the common consensus of both the left ("No, really?") and the right (No, really?!?, with a couple of expletives thrown in) on this one.  Like Patrick Swayze jokes, it just seems too soon (not that I think it is somehow obvious that it will be any more suitable later on).  

But it may shed light on arguments about the necessity, particularly for international diplomacy, of taking action against members of the Bush administration for alleged law violations on their watch.  Some of the panelists argued in non-consequentialist terms that prosecution was necessary to vindicate the rule of law, but consequentialist strains crept into their arguments, and one of those was that America's standing in the world had fallen as a result of the torture memos and the behavior they helped underwrite, and that some positive legal action was necessary to restore that standing and thus the efficacy of international law and human rights regimes.  But if Scandinavians are going to just start hurling medals at Obama before his administration has barely begun, and while it is still far from clear what steps he will take either to alter or to redress past administration policies with respect to the war on terror, does that not suggest that prosecution is unnecessary, at least on these sorts of consequentialist grounds?

Bearing the Cross

Alas, I've been busy with other things, and haven't paid close attention to the Salazar v. Buono case, on which oral arguments were held yesterday; here's an account from Dahlia Lithwick.  The news accounts are focusing, rather understandably even if no one thinks he will be forming a majority, on Justice Scalia's questions about whether the cross can be understood "the most common symbol of the resting place of the dead," as a simple war memorial that honors everyone, or whether it has specifically Christian connotations.  I have three observations about this.

First, if Justice Scalia is suggesting the cross is unobjectionable because it is a generalized "war memorial" with no necessary Christian meaning, that is in some contexts not a "religious symbol," to quote Lithwick, then obviously that is incorrect.  And not just incorrect, but equally offensive to those who believe strongly in the cross and those who believe in other religious symbols or none at all.  It's another example of the problems with civic religion, ceremonial deism, and other such arguments.  (Not to say they have no merits at all; just that they're problematic.)

Second, however, I'm not sure that's what Scalia is saying, although it seems to be how the news accounts are treating it.  If he is simply observing that it is outrageous to say that the cross only honors the Christian war dead, I think he is on much stronger ground.  Clearly the erection of a monument meant to honor the war dead, particularly in a society whose context is fairly pluralistic and inclusive, and in which civic religion often does take "mildly" Christian forms (depending of course on one's perspective; from other perspectives, both Christian and non-Christian, to call the cross "mild" is to rob it of its meaning), is not directed only at the Christian war dead but at everyone in the cemetery.  Scalia is right on this as a matter of fact, I think.  That doesn't mean anything dispositive ought to follow from it.  If a sign was erected on public land in a cemetery that said, "We honor all the brave soldiers who rest herein, although given that Jesus Christ is the way, the truth, and the light, we think the non-Christians among them will burn in Hell for eternity.  Still, good job, everyone[,]" it would be quite clear that the sign honored all the war dead, Christian and non-Christian alike.  The question would be whether government is disabled from making that kind of statement.  Scalia is wrong if he thinks the cross is so nebulous and meaningless that it makes no such statement; for some, the cross itself, without more, is entirely equivalent to the statement I have suggested above.  He is right, on the other hand, if he thinks that a symbol can be both particular to a specific religion and meant to honor people of other faiths, although again it may be that the Establishment Clause bars this kind of de-haut-en-bas tribute to outsiders.

Finally, in this snippet from oral argument and in his opinion in the Ten Commandments cases, I find something strangely inconsistent about Scalia's arguments.  I'm not knocking him here for taking a particular view of what the Establishment Clause requires as a matter of text and history; I'm suggesting that on certain cases, like these and like the VMI case and Romer, his methodology, which is supposed to rescue him (and us) from his normative views, clearly fails to cabin those views or prevent outbursts that are clearly about his own views about what society ought to be like rather than his views about what the Constitution actually requires.  Although I ardently disagree with the view that the Establishment Clause places Judeo-Christian monotheism (with Islam grudgingly included) within the pale and other religious beliefs beyond it, or that it does not prevent the state from placing generalized Christian symbols at the heart of public displays, provided they form part of the general culture and do not make too specific an endorsement (a task that is made easier by his refusal, for instance, to believe that anyone could care what text the Ten Commandments display, or whether different kinds of crosses have different kinds of meaning), it is just dimly possible to construct such an argument on historical grounds without one's own views intruding into it.  

But Scalia's attitude in the Ten Commandments cases and in yesterday's oral argument, even if we accept my reading of the exchange over the public meaning of the cross, seems to pretty clearly indicate some deeper wellspring of passion operating here, one that ought to be irrelevant to what he takes to be his own interpretive role, and one that frankly I find pretty close to incoherent.  Scalia seems to want to preserve a symbol that he views as being of profound importance, at the same time to cast doubts on whether it actually has that importance by imposing his own view of what the message of that symbol is ("all war dead honored here") over others, and to take offense at the very notion that anyone not of that faith might take a different message from it.  In these sorts of cases, I think Scalia comes closer than he is willing to acknowledge to what he sees as the central flaw of his colleagues: that in some cases passion is in the driver's seat rather than constraint.

Sandel's Justice

I am not one of the select few (roughly one in six Harvard undergrads) who has taken Michael Sandel's course on "Justice," although I've seen him speak and can imagine how enjoyable and interesting the course is.  Happily, Sandel is widening his audience.  His new book, Justice: What's the Right Thing to Do?, is essentially a fancy-dress version of his lecture notes for the course.  The course will also be the subject of a 12-episode documentary on public television, and I look forward to it greatly.  Here is an excellent article from the Chronicle of Higher Education on Sandel, the course, and the book and documentary projects, with quotes taken from interviews with, among others, Niall Ferguson, Joshua Cohen, Stephen Holmes, and Charles Taylor.  

I am about halfway through the book and recommend it highly so far.  It's extremely -- perhaps exceedingly -- well-written and smooth, and in a clear way it provides a look at dilemmas and hypotheticals that are regularly used and, with the help of the book, could easily be adapted for use across the law school curriculum.  I am, indeed, struck by how many of the moral dilemmas Sandel uses as his springboards are taken from the realm of law.  

I also wonder about the following passage, early in the book: 

Elections are won and lost on these disagreements.  The so-called culture wars are fought over them.  Given the passion and intensity with which we debate moral questions in public life, we might be tempted to think that our moral convictions are fixed once and for all, by upbringing or faith, beyond the reach of reason.

But if this were true, moral persuasion would be inconceivable, and what we take to be public debate about justice and rights would be nothing more than a volley of dogmatic assertions, an ideological food fight.

Sandel quickly adds: "[I]t need not be this way.  Sometimes, an argument can change our minds."  Maybe I'm having a Fishy reaction, but I can't help but think that he settles this point too quickly and not sufficiently persuasively.  As I said, I recommend the book highly, but he certainly has not shown me so far that our moral convictions are not "beyond the reach of reason" or that moral persuasion is not "inconceivable" and public debate not "an ideological food fight."  He certainly has not shown me that this is necessarily so.  It is true that arguments can sometimes change our minds, but less true, I think, unless we have already accepted a number of controversial moves, such that we already accept both the competing values (utilitarianism, libertarianism, virtue, Kantianism, etc.) and, perhaps more importantly, the language in which the conversation is conducted.  The book so far strikes me as an excellent example of reasonable people reasoning together reasonably, but I'm not sure it demonstrates that these types of conversation are inevitable or self-evident, or that the kinds of inclusions and exclusions he makes to his "Justice club," even if they are wide enough to allow one in six Harvard undergrads to enroll, are any more necessary or uncontroversial.  In that sense, the book strikes me as being more a kind of Robert's Rules of Order for liberals than a proof or justification of the enterprise he's engaged in.  But it is a terrific manual nonetheless.

The Constitution in 2020: A Pre-Partum Post-Mortem

I was very grateful to the organizers of the Constitution in 2020 conference for inviting me to participate this past weekend on the individual rights panel.  Most of the panels I saw were superb, particularly the constitutional theory and federalism panels.  Josh Blackman, one of the attendees, kindly took notes and blogged about the conference here.  I want to offer one response to Josh's post about the individual rights panel, and one broader observation about the conference.  

Josh writes of our panel, which included me and co-blogger Rick, that it struck him that "[i]t almost seems like the panelists want[ed] to achieve some end, and they flip[ped] through the Constitution trying to find something, anything, to justify [their] beliefs.  This seems backwards.  Shouldn't the text of the constitution inform what the law is? . . . These scholars are creating brilliant theories of society, government, policy and then as a footnote, try[ing] to make portions of the Constitution support it."  This is a well-worn criticism, one that of course is used against both left- and right-leaning constitutional theorists, and I can certainly understand its looming at this conference, for reasons I'll expand on below.  I'm not sure, however, that it was an apt criticism of this panel.  All of us did, in an important sense, start with constitutional text -- Elizabeth Emens, who spoke on disability rights, started with the Equal Protection Clause, Alice Ristroph spoke about the criminal procedure amendments, and Rick and I started with the First Amendment.  We all had normative positions, but they weren't necessarily the beginning or the ending of the interpretive process; rather, one informed the other and vice versa.  Rick and I, at least, inform our analysis and our sense of what the First Amendment permits and compels by way of constitutional interpretation with theories and principles that, as it turns out, have deep historical roots, both in the development of Western culture generally and in the history preceding, including, and following the founding of the Constitution; and I think the same thing could be said of Alice, whose "anti-violence" theory has some roots in the political theory of the criminal procedure amendments.  Of course all these theories are subject to criticism and modification, both on the basis of their fit with text and history and on broader normative bases.  But -- and this could be said of other panelists as well -- that doesn't mean they are simply result-oriented.  Really thinking hard about the Constitution, both in a textualist and a historically informed way, does in my view require good faith, but a good-faith effort to do so nevertheless leaves room for a number of interpretive strategies, the use of various historical developments, some of which are well-known to all of us and some of which have received less recognition in our time and deserve closer attention, and a number of different theories and outcomes.

Now, that doesn't mean Josh's general point lacks any purchase.  What struck me about the conference was that it was directed around a "project" (an oft-used term over the weekend) whose terms are still quite uncertain, and to which not everyone who served as a panelist had signed on.  Some panelists were decidedly social activists who believe the value of the Constitution in 2020 project is that it will lead to a more just society along the lines they would like to see; to some extent, constitutionalism was present but only sitting in the passenger seat for these panelists.  Other panelists, and perhaps the organizers themselves, are good-faith constitutionalists who believe that there is room for a politically progressive constitutionalism and see the goal as constructing a vision of progressive constitutionalism that is both theoretically legitimate and politically saleable.  Other panelists (Rick and I fall in this category, I think) are very happy to think about what the Constitution requires and think there is always room to rethink its meaning and that there is value in doing so, but we come from a variety of theoretical, methodological, and political perspectives, and don't care so much whether the Constitution in 2020 is a progressive one or not, let alone whether it can be sold to the ranks of political progressives.  

I very much enjoyed the conversation among the panelists in category three, which although it leaned left was conducted in good faith and involved a variety of perspectives.  The folks in category two, I would say, were probably well-positioned to talk to the folks in both category one and category three.  But there was a serious gulf between the folks in category one and category three, even when they happened to share political perspectives, which wasn't always the case.  It wasn't surprising to me that many of the people who were there to talk about constitutional theory weren't there when the folks from SEIU and other organizing groups talked about "implementing" the Constitution in 2020 "project."  Indeed, it seems to me that the folks in all three categories each had very different senses of what the "project" is.  My sympathies happen to lie with the folks in category three, who think it may be sensible to talk about a "project" of thinking about the future of the Constitution but are less likely to sign on to a "project" of seeing constitutionalism simply as a vehicle for implementing political change of a particular valence; as to the folks in category one, I am always impressed and heartened by people who do difficult political work (of many stripes), but that project isn't my own.  The folks in category two, which to me includes the conference organizers, I think have the greatest burden on them to figure out whether it is really possible to remain in the middle on this one, or whether there are either multiple "projects" or none here.  The same tension is, for those who have read it, evident in the Constitution in 2020 book itself, and so it is unsurprising that it surfaced at the conference as well.  

It was a terrific conference: I learned a lot, met some new friends and renewed ties to old ones, and was grateful to be there.  Yale knows how to throw a party.  But if the organizers of the book and conference are serious about pursuing a constitutional "project," I think they will have to do more work in defining it before (or if) it can draw committed adherents from all three categories.   

The First Amendment in 2020: An Institutional Perspective

Here's a link to my second and final post on the Constitution in 2020 blog in advance of the conference later this week.  This one is more directly related to the individual rights panel, on which Rick and I will both be speaking (and, I think, hitting some of the same themes).  Here are a few snippets:

Justice Oliver Wendell Holmes once famously wrote, “We must think things not words, or at least we must constantly translate our words into the facts for which they stand, if we are to keep to the real and the true.” The difficulty of this advice should not be underestimated – especially for lawyers. Lawyers are rather more gifted at thinking words not things: at wielding and manipulating concepts that do not always match up well to the world on the ground. Lawyers, Rick Hills has written, have “a deeply felt desire . . . to achieve noninstrumental certainty in the law.” And Fred Schauer has written of the lawyer’s tendency to think in terms of “juridical categories” rather than categories that correspond more closely to the lived reality of our world. I have called this temptation the lure of acontextuality: the futile hope that we can impose order on the world from the top down with the conceptual skills that are simultaneously lawyers’ greatest gift and their greatest handicap.

The law of the First Amendment abounds with evidence of the lure of acontextuality. Across a range of First Amendment doctrines dealing with very different forms of speech, worship, association, and institutional and discursive frameworks, we see judges and scholars hoping to find some frame, some word or concept, that will bring a theoretically pure and coherent shape to the whole of First Amendment law, with little apparent regard for who is speaking or what is being said. “Equality,” “neutrality,” “content-neutrality,” and many more buzzwords are touted as the path to an analytically pure First Amendment. . . .

Is there a better way to proceed? I believe there is. In fact, a number of First Amendment scholars, of whom I am only one, have argued that the way out of the First Amendment impasse lies in resisting the lure of acontextuality itself. We should refashion the First Amendment from the bottom up – from the distinct and varied structures, institutions, and social practices in which public discourse actually takes place, rather than hoping to find some concept or rule that will apply to all of them. We should take Holmes’s advice and think things, and let the words that describe and order them emerge organically rather than being imposed upon them. . . . .

Public discourse emerges from institutions that in some cases pre-existed and in other cases grew up alongside the First Amendment, and those institutions and their practices are sticky and largely self-sustaining. They are not simply creatures of the First Amendment. But the First Amendment might develop in a stronger and more socially responsive way if it were their creature. The First Amendment itself is a mere formula of words that might make more sense if we began by thinking about the existence of things, including institutions, in the world.

Read the Bill! Or Read the Bill?

At the Volokh blog, the conspirators have been having a very interesting conversation about whether legislators should be obliged to read the full text of every piece of legislation on which they vote.  I won't provide all the links; you can surf on over and check it out.

A couple of comments.  First, asking in an extended and thoughtful fashion whether legislators should read the full text of the bill is different from simply shouting "Read the bill!" or waving copies of a bill in the air.  One is conversation and dialogue; the other is political theater and sloganeering.  The slogan "read the bill" has often been wielded against people who have actually read the bill (as if there were only one) by people who have not, and it often signifies, not that the shouters think their opponents haven't read the bill, but either that they disagree with some provision of the bill (about which they themselves may be in error) or that they can't believe anyone who actually read the bill could possibly disagree with them.  They would not be satisfied if their opponents read the bill and still supported it -- I am reminded of the Onion story in which God answers the prayers of a dying boy with a simple "No" -- so the nature and heat of the dispute can't be about reading the bill as such.  The conspirators who have argued for reading the bill are not making the equivalent of a "Read the bill!" assertion, and good for them.

Second, it is not sure what can be meant by an obligation to read the bill.  Surely it would be unenforceable as a legal obligation, except by some highly unlikely disciplinary mechanism within Congress itself.  (Would there be pop quizzes?)  That does not make it meaningless.  Much of what legislators are supposed to do, under their constitutional oaths, falls under the heading of moral obligation, or of a mixed moral/political obligation that is practically unenforceable.  That doesn't mean it has no weight or that we can't or shouldn't argue about it.  It does mean that we should recognize the debate for what it is and not treat it as anything other than a politically enforceable matter.  And it is one that should, of course, be applied even-handedly.  If reading the bill is the moral good people are interested in, then perhaps they should go to town halls with the text of some bill of which they overwhelmingly approve, and which their representative supported, and ask whether he or she read that bill, instead of focusing only on the legislation they disagree with.  

Third, I think one can have this debate in good faith or not.  If you support the "read the bill" obligation only because you think it would make lawmaking slower and more difficult and retard the pace of legislation, I don't think that's a valid reason in and of itself to support reading the bill as an obligation.  I'm not saying that wanting less legislation, as an absolute matter, isn't a valid desire, although I don't share it (as an absolute obligation; I'm not saying I want more or less legislation).  But in this case, "read the bill" would only be a means to an end, not an end in itself.  Whether or not you support reading the bill shouldn't only be about whether you want more or less legislation.  I am mindful of some of the positions Justice Scalia has taken, on matters such as standing and separation of powers.  If made in good faith, they are either right or wrong; if they are only about finding ways to slow the pace of legislation that might be more likely to be liberal than conservative, they are on more unsteady footing.  

Finally, and more positively, I haven't bothered linking to all the posts because I think Eric Posner has it quite right in his post on the subject.  Here's his opening salvo; go to his post for the rest.

I have read with dismay David and Jonathan’s arguments that all legislators should read all bills before voting. The argument fits a genre of populist rhetoric that claims that problems of governance can be solved with simple, common-sense rules, denying that political institutions are highly complex organizations that have evolved in response to needs and pressures, and that simple-sounding rules rarely do any good in complex settings. Here, we should keep in mind that the ultimate function of the legislature is to produce good law; that determining whether a particular law is good or bad is such a complex and subtle task that all legislatures have found it necessary to divide labor, form committees, hire staff, expect particular legislators to become experts and leaders in particular domains, and, indeed, delegate many functions to unelected expert regulators.

Blogging on The Constitution in 2020

Yale Law School is holding a conference next month to discuss the recent publication of a book spearheaded by Yale professors, The Constitution in 2020.  Leading up to the conference, the organizers have set up a blog on which the conference participants (including at least three of the permanent Prawfsblawgers) will be commenting on the book.  First up: David Law, who argues that constitutional theory is often over-romanticized and focused on narrow and insular matters, and instead should "concern[ ] itself with questions of institutional design, and on ascertaining which interests and outcomes are privileged by what kinds of rules, practices, and structures."  These will not, I predict confidently, be the last words on institutional design on the Constitution in 2020 blog!  

I hope folks will read and comment on the posts that appear in the coming couple of weeks on the Constitution in 2020 blog.  By way of preview, one of my posts will talk about why, if the book is to amount to more than just a brief for progressive politics, constitutional and otherwise, it should have been titled The Constitution in 2030.  The book has been reasonably criticized, in my view, but there is some merit in trying to imagine how we might do constitutional law in the relatively near future, and I hope the blog will spark some discussion of this question.

Don't Tread On Me (Without a Permit)

I found today’s New York Times story about the thousands of protestors who made their way to the streets of the nation’s capital to protest big government compelling and a veritable profile in courage.  As they made their way “by bus [on federally funded highways, carried in buses whose safety, licensing, and non-discrimination policies follow federal mandates], car [mostly those of the post-Pinto, NHTSA-approved, non-exploding variety], and airplane [under FAA supervision]” to the streets (road maintenance and sewer service permitting) of the District of Columbia (see, e.g., U.S. Const., Art. I, s.8, cl. 17), these valiant souls faced fire (happily, less of a worry, given the existence of . . . fire departments), famine (especially in those parts of America’s heartland, seedbed of independence, where the seeds come courtesy of federal agricultural subsidies), flood (OK – maybe we haven’t done a perfect job here, although, if I recall correctly, we’ve at least done a heckuva job), and foes (kept at bay, it is true, by a substantial police presence, in possible combination with a large number of concealed weapons) to deliver one powerful, sincere, totally consistent and coherent message: Get the government off our backs!

I was glad in particular to hear the words of Ruth Lobbs, a teacher, who “flew to Washington on Saturday to protest how she believes the government has violated the Constitution.”  The article unfortunately omitted to mention whether she teaches at a public or private school.  And I was equally gratified to find the marchers met by the non-pandering words of Senator Jim DeMint of South Carolina, whose statement to the Times – “I just hope the Congress, the Senate and the President recognize that people are afraid of what’s going on” – notably contains the letters “W,” “T,” and “F,” if not necessarily in the correct sequence.  “This is not some kind of radical right-wing group,” DeMint helpfully added of the protestors, whose signs read “Please wake up and save America” and “We are under attack by our own government” and likened the President to Hitler, and who shouted "Liar!  Liar!  Liar!  Liar!" in tribute to Rep. Joe Wilson.

On Not Gaming the System in Law School

The other day the New York Times ran a set of op-eds from various well-known academics offering advice to students who are starting college.  It's mostly boilerplate stuff, and in some cases the byline enables one to predict with high accuracy every word of the op-ed.  (Harold Bloom: Read books.  Martha Nussbaum: Think about life, not just jobs.)  I quite liked Gerald Graff's contribution, however.  He writes:

Freshmen are often overwhelmed by the intellectual challenge of college — so many subjects to be covered, so many facts, methods and philosophical isms to sort out, so many big words to assimilate. As if that weren’t enough, what your different instructors tell you may be flatly contradictory.

Students understandably cope with this cognitive dissonance by giving each of their teachers in turn whatever he or she seems to want. Students learn to be free-market capitalists in one course and socialists in the next, universalists in the morning and relativists after lunch. This tactic has got many a student through college, but the trouble is that, even when each course is excellent in itself, jumping through a series of hoops doesn’t add up to a real socialization into the ways of intellectual culture.

What the most successful college students do, in my experience, is cut through the clutter of jargons, methods and ideological differences to locate the common practices of argument and analysis hidden behind it all.  Contrary to the cliche that no "one size fits all" educational recipe is possible, successful academics of all fields and intellectual persuasions make some key moves that you can emulate[.]

Both Graff's diagnosis and his prescription strike me as being equally applicable to law school.  No matter what general advice law professors and books offer on how to succeed generally in law school, some students will persist in believing that the way to do best is to figure out what each professors wants and play to these desires.  They are encouraged in this by upper-years students, fresh with the "wisdom" of one or two years of law school and the disenchanted perspective it brings.

It's not that they're completely wrong.  A little of this advice is useful to some extent: if your professor says, for instance, that she wants you to cover all the issues on an exam rather than delve into a few at great detail, you'd do well to listen.  But students who think this approach is the best or most efficient way to yield good grades are, I think, quite mistaken.  This approach yields few long-term benefits and only uncertain short-term benefits.  In my experience, the very best students acquire and apply a set of skills -- reading a case or an exam question carefully, thinking about all its implications, thinking about both how to unpack it and how to "pack" it into a theme or ruling, thinking about how one case or subject matter connects with others and what big picture or set of themes emerges from all of this, producing an analysis that makes use of these conclusions in a concise and targeted way -- that can be used across the board in both law school and legal practice.  They internalize the lesson that too few substantive professors teach: that the skills you pick up in your legal research and writing class are skills that will help you in your substantive courses too, that a good legal writing memo is much the same as a good exam and that if you can master these skills they will be of use in every course.  These students are not trying to suit the preferences of Professor X or Professor Y; they are simply trying to be good lawyers (or at least good law students).  They develop a skill set that gets them far better results, and with less duplication of effort, than if they had tried to game the system by figuring out each individual professor's pecadilloes.  We have them, to be sure, but ultimately we share more common views about what constitutes a good paper/exam/etc. than differences of opinion.  

This may be futile advice.  I have given it before, and to little effect.  Some students will insist stubbornly that one size does not fit all, that there is a "trick" to doing well in law school, and that the trick is about pandering to individual professors rather than picking up a set of trans-substantive skills.  A few will profit by this strategy in the short term, although I'm not sure what of value they will have picked up for the long term.  It is still dangerous and inefficient advice, however, and I believe Graff's advice is still the best, for law school as elsewhere: cut through the differences between individual professors, pick up and apply the common methods and language of legal analysis, and you will be far better off, no matter what individual professors or the skeptics of the upper years tell you. 

VC Blogger Ilya Somin Disagrees With the Vast Majority of VC Commenters

At least that's how I read this (see the fourth full paragraph, beginning "To the extent that...").

Ilya, I feel safe in saying you've got a lot of company on this one. 

Obama's School Speech and the First Amendment

I'm sorry more folks in the legal blogosphere haven't written more about some of the more perfervid reactions to President Obama's upcoming speech to school children, although Jim Lindgren has an oddly composed, if somewhat be-suspicious-but-verify in tone, post on it today.  Here's a New York Times article on the subject, with lots of examples of people worrying that Obama will indoctrinate the nation's youth into his secret plan for socialism, parents demanding opt-out rights, and so on.  I should add up front that to the extent that it is true that anyone thought the idea of these children writing letters to the President was a good idea, I'm rather glad it was scotched, although it could of course have been done in a perfectly inoffensive and educationally appropriate way.

I could understand this kind of sentiment coming from vigorous anti-public school types, who naturally might believe that any and all public education is a form of indoctrination, and thus that this speech is no different than but equally offensive as what happens every day in the public schools.  That would be an intellectually consistent position, right or wrong.  I do not get the sense it represents the views of many of these parents and public officials, who are all in favor of indoctrination on matters that could rightly be seen as controversial -- say,the question of masturbation and oral sex should be acknowledged in school to be acceptable forms of contraceptive sexual practice, or whether one should actually love one's country -- but for some reason view the President addressing school children as a unique danger.  

Two things strike me about this "controversy" -- if it is that, and not simply a case of a few nuts with good access to media outlets.  One is the parallel to the Pledge of Allegiance controversy following the Ninth Circuit's decision in Newdow.  Of course, part of the question there was religious, and had to do with whether the words "Under God" could be said by anyone at all.  And perhaps all the people complaining in this case believe that school children should have an opt-out right with respect to the Pledge just as they are arguing for one here.  But it seems to me that this is far-fetched; surely many of the people who are demanding that their children be allowed to skip the President's speech believe that children ought to be made to stay in class for the Pledge, and indeed to say it.  Surely that is true of some of the Senators, too, who piled on to the Ninth Circuit's ruling so quickly.  It is interesting that it turns out to be both controversial to forbid indoctrination into the Pledge of Allegiance and to require attendance (and not indoctrination) when the President of the United States gives a speech to school children.  Second, I wonder whether the advocates of opt-out rights in this case believe that this is a special case, or whether they think opt-out rights should be available in every situation.  On any given day, schools teach far more controversial values to their children -- say, that one ought to love one's country, or for that matter one's neighbors.  When should parents be able to pull their children out of school for those reasons?    

Law as Undergrad Part II: A Partial Dissent

I appreciate Howard's link below to my friend Mike Dorf's post talking about law school as a continuation of one's undergraduate degree.  Mike writes that "Law students who regard their legal education as a continuation of their undergraduate (or in some cases, graduate) studies will be doubly rewarded."  They will both enjoy their time in law school and, presumably by virtue of the added energy and attention that enjoyment brings, realize a practical payoff as well.

This is right, I think, but it's advice that needs to be taken with a grain of salt.  I always tell incoming students to be aware that law school is not simply part two of their undergraduate degrees.  That may seem to be in some tension with Mike's advice, but I don't think it is; note that Mike also makes clear that legal study as part of a full liberal education is a secondary aspect of law school.  

What needs to be taken into account is how different people treat their undergraduate educations, and how different people treat their legal educations, partly in consequence of that prior experience.  If you treated your undergraduate education as an engaging challenge to which you brought your full intellectual and emotional energies, then by all means bring the same spirit to law school as well; I might add that the same advice would hold if you had brought that spirit to life as a motorcycle mechanic or a taxidermist instead of an undergraduate.  But that, of course, is not everyone's story.  (It wasn't always mine.)  It is also possible to drift, relatively passively, through one's undergrad years; to do quite well with a relative minimum of effort; to wait and see what time will bring instead of seizing the reins of your own education.  And regrettably, some students start law school (and probably even more finish it) in something of this spirit.  They come to view law school as no different than their undergrad education, no more purposeful, and no more demanding of personal input; as something whose primary good lies in its credentialing function provided they can last through three years of classes.  They don't fully see its link to a professional acculturation, and viewed as a general course in the humanities they don't take full advantage of what it has to offer in this realm either.

This is all quite human and understandable, and I'm not affecting a superior position here.  Indeed, it was very much my experience for my first semester of law school.  It was only after I took it fully seriously as its own commitment that I began really experiencing its rewards, both as a system of transmission into the traditions of a profession and as an intellectual experience of its own.  So I'm a little leery of describing law school to new students as simply undergrad part two.  Not all of the old tricks one got by with in undergraduate education will get one as far in law school (although, with Mike, I agree that there is nothing deeply distinctive about legal reasoning, and those tricks can get some people pretty far).  It shouldn't be viewed just as three more years of the same old thing.  It's a new endeavor, one that far more than undergraduate education is linked to a particular professional and intellectual tradition, and on balance students may get more out of it if they realize this up front and commit to the enterprise.  It can certainly be as rewarding as one's undergraduate experience, if one found that rewarding; but it's not necessarily the same thing, and one shouldn't be complacent about it.  

I'm not trying to be too mystical about it; just to say that it requires a new sense of commitment rather than just trying to slide through it, in a way that is eminently possible for both undergraduate and legal educations.   

Horwitz for School Board

No, the other Horwitz.

I'm very proud of my wife, Kelly Horwitz, who's running for the Tuscaloosa Board of Education in District 4.  She is an incredibly talented, experienced, and dedicated person who will do a fantastic job representing the interests of all Tuscaloosans.  Of course, most of you are not in the Tuscaloosa area, let alone registered voters in District 4.  But I can still trumpet her achievements far and wide.  Here is her web site, including a picture of her loving family.  And in case you were interested in how campaigns are conducted in Tuscaloosa, here is the opinion section of today's Tuscaloosa News, with one (wise and well-reasoned) letter in support of Kelly's campaign and one (sadly mistaken) letter against.

Go Kelly!  If you're in Tuscaloosa, be sure to vote.  For her.

No Causal Relation

So, I leave Southwestern Law School in 2007.  In 2009, actor Jerry O'Connell apparently decides to attend Southwestern as a student.  I'm sorry to be deprived of the pleasure of teaching him.  Although he still owes me for the four hours I just spent re-watching The 60s on VH1 over the last two nights, and a semester of my Legal Profession class would have more or less constituted a fair exchange.

Yale Execs Nix Pix

Here is an interesting reprise of the controversy over whether to publish parodic cartoons that depict Muhammad.  The New York Times has this story about Yale University Press's decision not to publish those cartoons, and other images of Muhammad, in a forthcoming book called "The Cartoons That Shook the World," after consulting with the university and with several authorities on Islam and on counter-terrorism.  Here are some quotes from the story:

John Donatich, the director of Yale University Press, said by telephone that the decision was difficult, but the recommendation to withdraw the images, including the historical ones of Muhammad, was “overwhelming and unanimous.” The cartoons are freely available on the Internet and can be accurately described in words, Mr. Donatich said, so reprinting them could be interpreted easily as gratuitous.

He noted that he had been involved in publishing other controversial books — like “The King Never Smiles” by Paul M. Handley, a recent unauthorized biography of Thailand’s current monarch — and “I’ve never blinked.” But, he said, “when it came between that and blood on my hands, there was no question.”

Reza Aslan, a religion scholar and the author of “No god but God: The Origins, Evolution, and Future of Islam,” is a fan of the book but decided to withdraw his supportive blurb that was to appear in the book after Yale University Press dropped the pictures. The book is “a definitive account of the entire controversy,” he said, “but to not include the actual cartoons is to me, frankly, idiotic.”

In Mr. Aslan’s view no danger remains. “The controversy has died out now, anyone who wants to see them can see them,” he said of the cartoons, noting that he has written and lectured extensively about the incident and shown the cartoons without any negative reaction. He added that none of the violence occurred in the United States: “There were people who were annoyed, and what kind of publishing house doesn’t publish something that annoys some people?”

* * * * * 

Ms. Klausen, who is also the author of “The Islamic Challenge: Politics and Religion in Western Europe,” argued that the cartoon protests were not spontaneous but rather orchestrated demonstrations by extremists in Denmark and Egypt who were trying to influence elections there and by others hoping to destabilize governments in Pakistan, Lebanon, Libya and Nigeria. The cartoons, she maintained, were a pretext, a way to mobilize dissent in the Muslim world.

I don't have as firm a view on this as I might like to have.  What better reason could one have to avoid printing these pictures than to avert the risk of bloodshed?  And surely, notwithstanding Aslan's views, those risks are not vanishingly small.  And yet it seems to me that this reason is both excellent and almost impermissible at the same time.  If the pictures are integral to the book, then surely integrity suggests that the press ought to take that risk.  At the least, it should not be a question that the press's director says leaves him with "no question."  It should leave him instead with very great reservations.

At the same time, the pictures should not simply be published for their own sake.  I find it hard to imagine saying that of a book that is about -- well, that is about the pictures.  But one can reasonably ask whether the pictures are being included in the book to explain them or simply to offend.  Of course presses print things that "annoy[ ] some people," but I don't think that poking a finger in the eye is itself a good reason to print something.  Given Klausen's description of her book, it is somewhat difficult to say from the outside whether she wants to print the pictures to discuss the controversy or to continue it, as a kind of assertion in and of itself.  

On the whole, I am inclined to say that the press should have been willing to print the pictures.  The author acceded to its decision not to, so perhaps that is answer enough as far as the relevant parties are concerned.  And I am not even addressing the question whether the pictures should be viewed as offensive by those who do not fall within this version of the Islamic tradition (it is not the only version, of course, and I imagine that even some or many Muslims who are offended by the pictures would still not wish to block their publication).  How to deal with actions that are offensive within one tradition but not within another is a difficult question; freedom of speech reasonably understood tells us that we may engage in such actions, but not that we must.  Still, I think the press probably erred too much on the side of caution -- and that point is perhaps underscored by the quote from the press's director, which suggests that at the end of the day the reason he declined to publish the pictures was to avoid violence rather than to avoid the substantive harm of offending others.   

On Crying Students

At the Chronicle of Higher Education website, there is an interesting column titled "When Students Cry."  Actually, scratch that.  The column is reasonably interesting -- well-written, but you've probably seen it before.  The responses to the column, on the other hand, are fascinating.  I'm not surprised that there are different views on how to respond to a student who cries in your office -- over a grade, usually, although not necessarily.  I am surprised by just how harsh some of these comments are, how resistant to the very idea of feeling bad that one of your students feels bad.  Some of the reactions seem to be as much about the commenters' own insecurities, or about other issues altogether, than they are about the students themselves.  Prawfs readers may also enjoy the commenter who brings in the Sotomayor hearings (remember those?) and points out that having empathy for a crying student is hardly the same thing as altering one's standards.  In any event, both the column and especially the comments are well worth a read -- perhaps especially for incoming profs, who may never before have had to deal with something like this but almost certainly will face such a situation in the next year.

One other note.  In this as in much else, it seems to me that most of the emotional and professional burden of dealing with these kinds of episodes will be dealt with not by the pure "academic" faculty -- although, as the assigners of grades, we also get this from time to time -- but by the often underappreciated legal writing faculty, who have the closest exposure to incoming law students.  (And who also, incidentally, teach them some of the most important things they'll need to succeed in law school and legal practice.  If you're an incoming law student reading this, keep it in mind!) 

Judicial Character (and Does it Matter)

I'll have a few more posts about scholarship derived from my SEALS panel, but let me take a break and actually do something that was the subject of one of those panels: promote my scholarship.  I have posted a new paper on SSRN titled Judicial Character (and Does it Matter).  It's forthcoming in Constitutional Commentary, but editing is still at an early stage, so comments are decidedly welcome.  (It has also received the coveted "Highly recommended" rating from Larry Solum, so I thought I'd strike while the iron's hot.)  Here's the abstract:

This Essay, forthcoming in Constitutional Commentary, discusses three recent books about judicial decision making: Richard A. Posner's How Judges Think, H. Jefferson Powell's Constitutional Conscience: The Moral Dimension of Judicial Decision, and Daniel A. Farber and Suzanna Sherry's Judgment Calls: Principle and Politics in Constitutional Law. It uses them as the foundation for an exploration of the nature and role of judicial character, or judicial virtue, in constitutional judging. 

All three books have in common the rejection of any single comprehensive theory of or approach to constitutional judging. What divides them is the extent to which they focus descriptively on the "is" of judging or normatively on the "ought" of judging: here, Posner and Powell represent the respective poles, with Farber and Sherry located somewhat awkwardly in the middle. I argue that in order for us to find some livable space between the "is" and the "ought," we must take the aretaic turn: we must focus on the nature of judicial character or virtue and what it demands of the judge. Drawing on work on virtue ethics and virtue jurisprudence, I explore the role of judicial virtue and its relationship to constitutional decision making. I argue that the aretaic turn may help us to develop an understanding of judging that is both consistent with the judicial "is" and productive of new ways of thinking about the judicial "ought." In particular, I argue that reflection on the meaning and implications of the judicial oath may provide a fertile space in which to recapture and reconceive a normative sense of the judicial virtues without neglecting the real-world motivations and limitations that act on judges. This Essay is a prelude to larger work on the relationship between oaths and the Constitution.

Let me add a few words.  Although the essay makes apparent my view that Farber and Sherry suffer from trying to occupy the middle ground between Posner and Powell, as it were, all three books discussed in this essay are terrific, and the Posner and Powell books in particular are must-reads.  I argue that those of us who are interested in legal process issues (and I recommend, for those who are, this set of materials for a course on that subject by Chad Oldfather) have to find a useful way of threading a path between descriptive and normative accounts of the judicial process: a path between the judicial "is" and the judicial "ought."  One way to do that is to take the aretaic turn: to be concerned with questions of judicial character, both in a descriptive sense and a more normative sense.  Contrary to some of Larry Solum's work, I don't think we can derive very clear rules from this; and contrary to Farber and Sherry, I doubt we can come up with really detailed and convincing grounds to evaluate any given judicial decision on this basis.  (The effort to do so is perhaps the least convincing section of their book.)  But neither of these points takes away from the broader conclusion that character is an essential element of both the real world of judging and the normative ideals we might want to achieve in this area, and thus that it is vital to discuss questions of judicial character, in a way that is at once responsive to actual circumstances and interested in building a bridge between those circumstances and our larger ideals.  I think the aretaic turn is a valuable way to do this.  And I think the judicial oath in an important sense represents a fruitful space in which this project can take place.  

Finally, let me say that this is a prelude to a larger work -- hopefully an eventual book project -- on the relationship between oaths and the Constitution, not just for judges (the subject of my next big piece), but for other government officials as well.  The oath is a central part of the constitutional machinery, but much more needs to be said about it.  Hence, comments on this initial piece of the project are doubly welcome.  I hope you enjoy it.

Scholarly "Dead Ends"

Today, following up on my posts based on my SEALS panels on planning and promoting your scholarly career, I want to talk about a subject that most of us know something about but few of us discuss in the detail it deserves: the scholarly dead end.  The thoughts here are my own, but they're inspired by the wonderful talk on this subject at SEALS by Prof. Cynthia Ward.  Again, without wanting to be a stalker, if you're her friend or colleague I encourage you to encourage her to publish her very insightful remarks.

The scholarly dead end is not limited to any one stage of the career, although I suspect it may well be high at the beginning and recur thereafter in something like five-year cycles.  At the beginning, the dead end may be related to the fact that your first piece or pieces are one-offs, not yet related to a larger project.  Later on, it may emerge when you run out your string on a series of articles, or decide that the subject has been adequately dealt with by others, or just doesn't excite you like it once did.  Sometimes, it comes from the fact that you said yes to an invitation that in retrospect you should have declined, and find yourself saddled with the obligation to write a symposium paper, response, etc., that's a little bit too far out of your field or just not as interesting as the invitation made it sound.  And sometimes a project sounds attractive and doable at the outset but you come to realize it takes more than you can bring to it.  Finally, Cynthia Ward, arguing along some of the same lines I've pursued here this week, suggested in her talk that a dead end can come from a junior scholar following the advice of a senior colleague to write about an area that is "hot" or "safe" rather than writing about the topic one really wants to write about.  That approach may seem safe, but it also risks a swift dead end.

I wonder why we don't talk about dead ends more, given how likely it is that all of us will face one from time to time.  Is it superstition?  Insecurity?  The belief that it only happens to us, not everyone else?  I don't know.  But it is very much worth discussing, and sharing our experiences.  What do you experience when you hit a dead end?  Despair?  Anomie?  Guilt?  Despair?  (OK, I said that once already, but you get my point.)  Why have you suffered dead ends?  What do you think you would have done differently to avoid it, and once at a dead end how do you respond?

In my experience, I've been fairly lucky, but not entirely immune to the scholarly dead end.  (At least as far as I can tell from my own perspective.  Folks who think I've actually hit many dead ends are welcome to not weigh in.)  For the most part, by thinking in terms of two or three broad research "pods," each of which have yielded several articles and/or books, I've stayed productive and able to put one "pod" on the back burner when enthusiasm wanes, only to turn back to it when it waxes.  Still, I can think of one paper I abandoned altogether after some 60 or 70 single-spaced pages and a year or two of research.  I can think of one or two papers I've written -- usually in a symposium context -- where in retrospect (and during the writing process!) I've wished I could escape that obligation.  

I have no outstanding advice here, and hope to hear from all of you out there.  I can offer a few words, though.  Again, I think most of us have two or three areas, often related but sometimes fairly distinct, that we are pursuing at roughly the same time.  Of course, each "pod" can have payoffs for the other, such that reading one book will yield insights and ideas for several "pods."  This helps economize on time but also helps us to toggle back and forth a little, keeping different projects in various stages of development or suspension.  Second, even at the pre-tenure level, I think it's important to know when to let go of a project.  Don't fall for the fallacy of sunk costs; if something is causing much more pain than pleasure and production, maybe it's time to abandon that project.  You can always return to it months or years later, and if you don't, you can at least have a better sense of what projects to pursue and what invitations to accept or decline in the future; plus, your research may well find uses in other projects.  But not everything you do absolutely has to be published.  Third, read for inspiration, both in and out of your main field; you never know when some stray sentence will lead you to your next set of articles.  Fourth, recharge from time to time, whether by using a sabbatical to learn something new or go into practice, or by focusing on teaching and reading for a year, or going to conferences without speaking, or what have you.  Fifth, don't write in a field that doesn't interest you, just because someone told you it would be the wise thing to do; the payoffs are probably not worth the risks.  Sixth, if you find yourself saddled with a project you have to finish, say because it's tied to a symposium, and you can't just turn it back to the ideas that do excite you, do the job that needs to be done (obviously, you should always do the job that needs to be done), but find ways of making that project narrower or more speculative or otherwise less time-consuming; then grit your teeth and do it.  (As to which I might add ruefully, physician, heal thyself.)  Seventh, remember that even if we don't talk about it, it happens to almost all of us.  (Sunstein and Posner excepted, perhaps.)

Again, I hope others will share their experiences and advice.  I'll have one or two more posts on related topics and then recharge my own optimism by posting about a new paper next week.

  

Gedicks on Group Rights

Via Larry Solum, I see that Fred Gedicks of BYU has posted an interesting new paper on SSRN called The Recurring Paradox of Groups in the Liberal State.  It's an interesting read for those of us, including Rick and I, who have written on questions involving group rights, First Amendment institutionalism, religious group autonomy, and so on.  Here's the abstract:

The question of groups for liberal theory and constitutional doctrine is not new. For at least the last half century, every time some unguarded Supreme Court language has hinted at group rights, academics have responded with law review articles arguing that the Court should confirm such rights in doctrine. But the Court never has.

The Court's lack of enthusiasm for group rights is undoubtedly related to their paradoxical quality of simultaneously protecting and threatening individual liberty. This paradox requires analytic touchstones to guide the decision when the liberal state should intervene in the internal affairs of groups, such as groups’ lack of foundational status in constitutional doctrine, whether group membership is consensual, and the extent to which group rights impose external costs on nonmembers. It also suggests the need for a more nuanced approach to group rights than is suggested by the binary choice between recognition or nonrecognition. Constitutional doctrine might make greater use of intermediate measures, such as revocation of tax exempt status or other state privileges, for groups whose beliefs and practices threaten the rights and interests of nonmembers. This enables the state to preserve the pluralist contributions that groups make to liberal democracy without subsidizing anti-liberal values and practices.

And here's a nice passage: "Thus began the long and unrequited love affair between legal academics and constitutional theories of group rights.  Since Kedroff, every time some unguarded Supreme Court language has hinted at the existence of group rights, academics have responded with law review articles arguing that the Court could or should or might or must confirm such rights in doctrine.  But the Court never has.  This has been going on for more than 50 years and we're now no closer to a constitutional doctrine of group rights than we were when Professor Howe wrote in 1953."

True.  But hope springs eternal!  Two small points.  First, don't miss Gedicks' description of his experience at a SALT conference discussing polygamy, which I found very interesting.  Second, one of the reasons Gedicks is cooler on group rights than he once was, he says, is that "[t]he toleration of illiberal groups is fraught with danger for liberal democracy, which by definition cannot guarantee that such groups will not seize the reigns of democratic power."  It seems to me that this point is just an illustration of the broader Madisonian point about the potential danger of factions.  And part of the response to this is the (actual or neo-) Madisonian solution of federalism and an extended republic.  Given both the dispersal of democratic power and the limitations on local power, and the possibility of both geographical/jurisdictional and group exit rights, I think this concern is not as great as Gedicks might suggest.  Any discussion of group rights must, in the United States, also acknowledge and account for federalism and localism, I think.  

Read the paper!

On SEALS and Strategy vs. Humility

I'm back from one of those tough rigorous trips that characterize law prof conferences: the annual conference of SEALS, the Southeastern Association of Law Schools, at the Ritz in West Palm Beach.  Naturally, given the name of the association, the attendees come from schools such as Indiana, Seattle, Hofstra, Brooklyn, and Windsor.  If there were a law school in Alaska, I feel sure it would be a SEALS member school.  Cognitive dissonance aside, it's a lovely conference -- although maybe they should just call it the Association of Law Schools.  

I spoke on Sunday on a panel about planning your scholarly career.  The panelists, present company excepted, gave some excellent tips.  In particular, if there are either law review editors or William & Mary folks among our readership, I hope they will encourage Professor Cynthia Ward to write up and publish her remarks.  She spoke about "dead ends" in scholarship -- a vital topic, common to just about everyone, but one that is insufficiently discussed, perhaps for reasons of superstition.  Her remarks were superb -- very thoughtful and helpful.

One thing that came up quite a bit during this session was the common tension for juniors between writing what you want to write and writing what you are told you ought to write.  I don't know if this is as common as it once was, but there are still stories about one junior prof or another being told not just to choose a different topic for his or her first articles, but an entirely different subject matter than the one he or she actually wants to write about.  While there was no actual support for this on the panel, I did think some panelists emphasized the question of tenure more than others.  I did not; for a variety of reasons, including both one's personal integrity and the simple fact that it is easier to get tenured at a law school than to actually get a teaching job in the first place, I don't think tenure should be a big factor in deciding what you want to write about.  At the same time, of course I don't think every choice a junior makes is necessarily the right one, and I don't want to jeopardize anyone's tenure chances as such; every institution is different, and these kinds of questions may have different salience at different schools.  

I think the best way to dissolve this tension is to distinguish between choosing a topic, and an approach to that topic, for reasons of career strategy, and doing so for reasons of prudence and humility.  I don't think junior profs (or anyone else, for that matter) should make decisions about research and writing based solely or primarily on what they think will get them tenure, any more than I think -- what with the FAR forms being just about due -- that one should try to get a job at a law school by being willing to teach absolutely anything and everything.  If you have a passion for a subject matter, you should pursue it, and be willing to do so in the face of some (minor) risk to your chances of getting a job or tenure.  After all, neither a job or tenure are guaranteed even if you do take this strategic approach; and if you do succeed, you may find you've bought something you didn't really want in the first place.  Then you truly have reached a dead end.  

But that is not to say your first piece should be a grand unified theory of the field.  I do think there are dangers in junior profs writing too "small" -- more on that in a future post.  Surely some ambition is appropriate even in an early piece.  But there is always a role for prudence and epistemic humility -- a sense that you do not yet know everything about your field, and therefore that there are reasons to be a little more circumspect and circumscribed in your early work.  That doesn't mean you can only write a piece that takes a narrow doctrinal approach to a narrow doctrinal question.  But it does mean that the breadth and confidence of your argument should be somewhat cabined, and your claims should be developed against the backdrop of a certain humble recognition that you are just entered upon your scholarly career and shouldn't try to do everything at once.  Of course, humility is a virtue in scholarship at every stage of one's career, and even as you get more confident and knowledgeable about your field, you should retain this quality in your work.  But the more you do, the broader the boundaries of your work will become.  

The nice thing about this advice, I think, is that it too serves the end that some panelists and juniors are concerned about -- namely, getting a job and/or tenure.  Even if you refuse to accept someone's strategic advice -- say, that you should write about bankruptcy rather than con law -- you can still write in a measured and humble way that will advance your prospects for success.  But you will have done so for the right reasons, and in doing so you will have absorbed good habits rather than habits of thinking "strategically" and fearfully about your career in a way that risks a career that either dead-ends or is an unhappy one.  And, of course, unlike strategic advice that purports to be about how to get tenure and then either runs out of usefulness after tenure or inculcates career-long bad habits, this advice is good for your entire scholarly life.    

 

Planning and Promoting Your Scholarly Career

Next week is the annual conference of the Southeastern Association of Law Schools, or SEALS, which will be held in lovely Palm Beach, Florida. I will be appearing on two panels.  Sunday's panel is: 

ROUNDTABLE DISCUSSION: PLANNING YOUR SCHOLARLY CAREER 

This panel will examine “scholarly paths,” and includes a variety of perspectives on that topic. Should faculty pursue a consistent scholarly path over the course of their careers, or might their paths diverge over time. 

Moderator: Professor Michele Butts, John Marshall Law School (Atlanta). Speakers: Professor Barbara Cox, California Western School of Law; Professor Cynthia Ward, College of William & Mary, Marshall-Wythe School of Law; Professor Ellen Podgor, Stetson University College of Law; Professor Paul Horwitz, University of Alabama School of Law.

Tuesday's panel is:

Maximum Exposure: The Art of Making a Name for Oneself

This panel will explore ways in which junior scholars can make their presence known in the academic community.  Panelists will address questions such as: When and to whom should I send reprints?  How do I network at large conferences?  Should I focus on attending smaller conferences?  How do I get invited to present at other institutions?  How can I use technology to market my scholarship?  Do I need a mentor and, if so, how do I find one?  Should I cold contact or introduce myself to established scholars in my field?  How do I get involved with a topical scholarly thinking group?  How can my Associate Dean of Faculty Development or Scholarship help me?
 

Moderator: Professor Wesley Oliver, Widener University School of Law.

Speakers: Professor Jennifer Collins, Wake Forest University School of Law; Professor Erica Hashimoto, University of Georgia School of Law; Professor Paul Horwitz, University of Alabama School of Law; Professor Orin Kerr, George Washington University Law School.

I suppose I could keep my advice short: Plan to take advantage of conferences in Palm Beach.  And promote your appearances on Prawfsblawg.  I actually have a few more thoughts than that about both topics.  But I am eager to hear from our readers.  What advice would you give a junior scholar about planning a scholarly career?  Should you be a fox or a hedgehog?  How should your early pieces differ, if at all, from your later pieces?  How do you get started?  (Since most junior profs now come in with published pieces, this is probably no longer as big a problem, but my sense is some people's pre-teaching publications are derived from practice or law school, and that some new profs still have difficulty getting things off the ground.)  And how should you promote your scholarly career?  Do blogs help?  Reprints?  How do you network?  And -- something I'm especially interested in, because this part of my career has probably lagged a little behind the other aspects of my work -- how do you start getting invited to conferences and to workshop?  (Happily, this seems to be picking up, but yes, I'm always looking for invites, especially to workshop.)  

Comments are very welcome.  The more I hear from our readers, the more I'll know either what good answers are out there or what good questions are still unanswered for many junior profs.  See you at the lanai.  I'll be the dude with the skull T-shirt, the frozen and salted margarita, and the copy of Charles Taylor's A Secular Age.  

My God! It's Full of Stars!

From the Times, here's the story of an amateur astronomer who discovered "a new hole the size of the Earth in Jupiter’s atmosphere, apparently showing that the planet was hit by something large in recent days."  Here's a picture:

The amateur astronomer is quoted as having said: “If anything like that had hit the Earth it would have been curtains for us, so we can feel very happy that Jupiter is doing its vacuum-cleaner job and hoovering up all these large pieces before they come for us.”  Agreed.  Thank you, Jupiter -- we didn't get you anything!  Although I am seriously hoping that, when more detailed pictures are available, they don't show that the spot is made up of a swarm of self-replicating monoliths.  I think we can all agree that the last thing anyone needs is some infantile busybody telling us to leave Europa alone.   

Review of Hamburger's Law and Judicial Duty

Marc DeGirolami has already written on this page about Philip Hamburger's wonderful recent book Law and Judicial Duty.  I've written a short (and favorable) review of that book for Engage: The Journal of the Federalist Society's Practice Groups.  It can be found here.  The introductory sentences give some sense of what I think of the book:

Philip Hamburger’s Law and Judicial Duty is an incredible book. Of the books I have reviewed in these pages in the last two years, it is simply the richest and best of the lot. Every constitutionalist, everyone interested in the history of the Anglo-American judicial craft, and everyone who cares not only about history but about contemporary debates over the nature and legitimacy of judicial review must read this book.

A couple of additional notes.  First, I would be equally happy to write reviews for either the FedSoc or the ACS (I'm a member)!  But the FedSoc is the one that asked me first, and they've done a great job with my reviews (anyone who is interested in writing reviews for Engage should contact Peter Aigner, who is a great editor and, in my experience, a mensch).  ACS folks, you're welcome to follow suit.  After all, the review will be the same regardless of the audience.  Second, I note with dismay that SSRN does not collect book reviews on an author's index page or count downloads, and thus they are harder to search for.  I understand the decision but I think it's wrong, and I hope SSRN revisits it, especially in light of recent discussions here about the value of book reviews in the law and the importance of finding alternative places to put them, places that ideally should be easily accessible.  I would also note that the policy is all the more unfortunate given that it is inconsistently applied.

Finally, although I heap praise on Hamburger's book, I do add some caveats.  It's a shame in particular that Hamburger doesn't pursue his project past Marbury, especially in light of some of the broader normative statements he wants to make about law and judicial duty in the present day; perhaps he will consider a second book that does just that, but until then we should take his normative conclusions with a grain of salt.  Still, this is one of the must-reads of legal publishing in the last year, especially for constitutional scholars.  Enjoy the review.  As always, comments are welcome.

On "You Have No Idea Who You're Messing With"

On the basis of the police report, news accounts, and Henry Louis Gates's own account, I think the police were clearly wrong to arrest him, particularly once they confirmed that he was who he said he was and was where he was supposed to be.  Whether it was a result of simple racism, or of taking unwarranted punitive action because the police found Gates difficult and arrogant, or abuse of authority, or some combination of all of these, I can't say.  But Gates's conduct in no way justifies the arrest.

I do want to focus for a second on the police report saying that Gates told the officer, presumably not in dulcet tones, that he had no idea who he was messing with.  I have ambivalent feelings about this.  One charitable interpretation of this is that Gates, who was well within his rights to be trying to open the door to his own property, was telling the officer in no uncertain terms that he could not get away with abusive treatment simply because he was dealing with an anonymous (and black) citizen; Gates could and would quite properly use the megaphone he enjoys to broadcast this abuse of police authority.  That is not only within his rights, but can be a salutary corrective to the many possible occasions in which police officers take liberties with people who don't have the same access to publicity.  (Another charitable interpretation, albeit of a different kind, is that whether or not Gates's statement had this meaning, he was justifiably angry and spoke in anger.  We may not admire that completely, but we can certainly understand it; and, again, police should be trained to deal with such situations with responses that fall well short of arrest.)

Another interpretation is that Gates was, in essence, turning the tables, saying, you are not powerful and I am; and I will use all the means at my disposal to make your life miserable.  (Indeed, one of the shifts in perspective that is necessary in viewing this incident is that in some cases police officers are far more powerful than well-connected Harvard profs; in other circumstances, however, they are far less powerful, and the whip hand shifts.)  Or even that he was saying, not that powerful people should enjoy impunity -- after all, he was, again, well within his rights to enter his own house -- but that, if you're going to mess with someone, you had certainly better not mess with someone who is powerful and well-connected.  This assumption of the privileges of power is not limited to Harvard professors with wide media connections (although I suspect it takes especially fertile root there).  We see -- and generally condemn -- similar statements by other powerful people in the hands of the law.  Of course, one thing that influences our condemnation is that in many of these situations, the powerful accused person is, in fact, guilty, and that was not the case with Gates.  But we also independently dislike such statements, I think, regardless of guilt or innocence, because we recognize the broader statement about the uses and prerogatives and assumptions of power that accompany the statement "do you know who I am?"  We don't like it when judges use such statements when stopped by traffic cops, when Senators use it when pulled aside at airports, or when Mel Gibson and other celebrities use it after being picked up for some wrongdoing or other; we may not like it either when Oprah uses it when denied admission to Hermes, and then uses her own megaphone to exact lengthy retribution against that store, even if we think the store was wrong to deny her admission.  We also don't like it in other circumstances, when there is no great wrong done by either side: say, when someone trades on his name to secure a key table at a restaurant at the last minute although the hoi polloi could not hope to get in without a longstanding reservation.  

So I confess to some ambivalence here, too.  I don't blame Gates for using his prominence to publicize an indignity that he should not have suffered, especially if and when less prominent people suffer similar indignities without recourse to publicity.  On the other hand, for all relevant purposes, the answer to the question "do you know who I am" should always be the same: a private citizen, possessed of greater or lesser prominence but otherwise equally situated with everyone else.  Without wanting to be too hard on him for statements made in the heat of a moment of what he reasonably viewed as police mistreatment, one can wish that Gates had used "who he was" to publicize the event afterward, without attempting to invoke "who he was" during the contretemps.