Monday, February 06, 2017
Lewis & Clark Law Review on "Law and Religion in an Increasingly Polarized Society"
The Lewis & Clark Law Review, under the supervision of some superb student editors and Prof. Jim Oleske, has just published a superb symposium issue on "Law and Religion in an Increasingly Polarized Society."* The contents are below and can be found here. The writers include Kathleen Brady, Kent Greenawalt, my colleague Ron Krotoszynski, Marc DeGirolami, Robin Fretwell Wilson, and others. I haven't read all of them yet, but what I have read has been very interesting.
In my rather rough and general opinion, the symposium is highly and obviously timely, and yet comes at a particularly difficult time for those who would attempt to predict the course of law and religion jurisprudence right now, precisely because of both increased polarization (at least in some sectors of the population) and the ways in which the nature and subjects of that polarization have altered dramatically in the past few months. If Hillary Clinton had won the election and depending on the composition of Congress and of political power in the states, we might have expected a more or less linear or steady progression in the kinds of issues and the sorts of debates that had been occurring in the past few years. It's less clear to me that that continues to be true. I agree with those who argue that current events and political outcomes are a continuation of rather than a break with the culture wars; and I think that even if events were taken to mean that the "losers" in that war were suddenly winning and vice versa, but without much else having changed, it would be more or less possible for the discussion to continue along a similar path to the one it had taken. I'm far less certain that that is currently, clearly the case. One needn't conclude that that is either a good or a bad thing, except insofar as unpredictability is itself a major problem. But the issues may change, the intensity and focus may shift from one area to another, and the ability to frame those issues within some kind of "culture war" might need to wait for a clearer picture of where and how that war is being conducted.
My general sense is that even prior to the last few months, there has been some enervation in the field. Law and religion scholars' responses to this enervation have varied. Some have focused their attention on other subjects altogether, outside of law and religion. Some have focused more narrowly on doctrinal questions, sometimes as a way of fighting the legal battle as tenured partisans and sometimes because doctrinalism in such cases can be a way of addressing interesting and pressing "little" questions while avoiding the big questions. (Query how much it is possible to say about the "little" questions if it is the "big" questions that are driving them.) Some may continue writing in the field but shift their attention to other areas, such as standard, good-old-fashioned Establishment Clause questions. (Vouchers!) Some may refocus on larger theoretical questions, abstracting away from particular controversies; I rather hope they do. I think those (and I would characterize some of my recent work in this way) who have tried to stand outside the actual combat and think about the cultural and sociological context of these controversies must perforce remain in a holding pattern on that kind of work until the ground becomes clearer again; at least I think that's the appropriately modest and sensible thing to do, if you're interested in those specific questions. (That said, I have a review essay coming out that at least tries to evaluate where we stand right now and the relationship between recent upsets in the culture wars and law and religion. Like any piece on these issues written between October 2016 and January 2017, it is even more uncertain in its conclusions than usual.)
All this is by way of context and some general observations on the state of the field. To say it's an uncertain time for the field is not to detract from the symposium itself, which contains some excellent contributions and is well worth taking a look at. Congratulations to Lewis & Clark and the journal editors, as well as the contributors, for this fine collection.
Here are the contents:
Kathleen A. Brady
20 Lewis & Clark L. Rev. 1093 (2017)
Marc O. DeGirolami
20 Lewis & Clark L. Rev. 1127 (2017)
Religion and Polarization: Various Relations and How to Contribute Positively Rather than Negatively
20 Lewis & Clark L. Rev. 1157 (2017)
B. Jessie Hill
20 Lewis & Clark L. Rev. 1177 (2017)
20 Lewis & Clark L. Rev. 1201 (2017)
Agora, Dignity, and Discrimination: on the Constitutional Shortcomings of “Conscience” Laws that Promote Inequality in the Public Marketplace
Ronald J. Krotoszynski, Jr.
20 Lewis & Clark L. Rev. 1221 (2017)
Ira C. Lupu & Robert W. Tuttle
20 Lewis & Clark L. Rev. 1265 (2017)
A Regrettable Invitation to “Constitutional Resistance,” Renewed Confusion over Religious Exemptions, and the Future of Free Exercise
James M. Oleske, Jr.
20 Lewis & Clark L. Rev. 1317 (2017)
The Nonsense About Bathrooms: How Purported Concerns Over Safety Block LGBT Nondiscrimination Laws and Obscure Real Religious Liberty Concerns
Robin Fretwell Wilson
20 Lewis & Clark L. Rev. 1373 (2017)
* A personal and embarrassed note, which is sincerely meant as the opposite of a #humblebrag. I was asked to contribute to the symposium, and ended up repaying the editors' kindness and generosity with...nothing. Doubtless recovering from surgery didn't help, and certainly some of the questions of uncertainty that I discussed above contributed to my wavering, but I am still embarrassed at my failure to contribute, aside from my regret at not joining such distinguished company. Surely if there is a personal lesson, it is that it is better to say "no" to an attractive invitation than to say yes and then vacillate. Clearly, judging by the contents of the symposium, I would not have added perceptibly to what is already a very good and broad collection of articles.
Friday, February 03, 2017
Constitutional Limits on Delaying or Denying a Hearing and Up-or-Down Vote on the Gorsuch Nomination?
My view during the Garland nomination was that the Republican refusal to grant a reasonably timely hearing and an up-or-down vote on that nominee was deplorable but not unconstitutional, and that such arguments as they provided to justify it were rationalizations, not good reasons.* I think that Democratic refusal to grant a timely hearing and up-or-down vote to Neil Gorsuch is also not unconstitutional, while setting aside for the moment whether it is deplorable or not. On the whole I think it is dangerous, although I understand the arguments that it is justified by the prior conduct. Many constitutionalists agree with me both that the obstruction of the Garland nomination was bad but constitutional, and that obstruction of the Gorsuch nomination would also be constitutional (and possibly bad, although there will be greater variation in views on that question).
But it is striking, in going back through the Garland debate, to see just how many law professors (and others) argued that the refusal to grant a hearing and straight vote to Garland was not just deplorable but unconstitutional; not just unconstitutional but clearly unconstitutional; and not just clearly unconstitutional, but clearly and unequivocally unconstitutional, which is to say admitting of no clear exceptions, or no exceptions at all.
Here are only a few examples. 1) A letter by around 350 law professors publicized by the Alliance for Justice asserted that there was a "constitutional duty to give President Barack Obama’s Supreme Court nominee a prompt and fair hearing and a timely vote." "The Senate’s obligation in this circumstance is clear," the correspondents argued. "The Senate must not defeat the intention of the Framers by failing to perform its constitutional duty. The Senate Judiciary Committee should hold a prompt and fair hearing and the full Senate should hold a timely vote on the president’s nominee." The writers included some highly qualified and respected constitutional law scholars, including Laurence Tribe, Kenji Yoshino, Erwin Chemerinsky, Rebecca Brown, and Linda McClain. 2) Also under the AFJ, a letter from some 58 Indiana law professors argued that "an outright refusal to even consider his nomination runs counter to the Senate’s obligation, under Article II of the Constitution, to provide 'advice and consent.'" Its conclusion stated: "Chief Judge Garland is an eminently qualified nominee who deserves fair consideration of his nomination. Refusing to do so is an abdication of the Senate’s constitutional duty to provide advice and consent." The writers included a former head of OLC. 3) The AFJ publicized a similar letter from a similar number of Ohio law professors. Its language mostly tracked the Indiana letter. It concluded: "The Senate must perform its constitutional duty and deliberate over Judge Garland's suitability as a Supreme Court nominee. Holding a hearing and an up-or-down vote on his nomination are how the Senate does its job. Refusing to consider the Garland nomination on its merits would be an abdication of the Senate’s constitutional duty to provide advice and consent." 4) A letter from 43 current and former law school deans was, in fairness, cloudier in its arguments, but suggested the belief that there is a "constitutional duty to ensure a fully functioning Supreme Court," that this includes a constitutional duty of "holding hearings and providing an up-or-down vote on [a] nominee," at least where there is an eight-member Court. It added more straightforwardly that Article II, section 2 of the Constitution operates "without qualification." 5) In the Chicago Tribune, Professor Geoffrey Stone wrote that "it is [Senators'] constitutional obligation to have a fair and open hearing and to vote to confirm Garland." Note that Stone went further than his colleagues, arguing not just that there is a constitutional duty to provide hearings and an up-or-down vote but that, depending on how you read his op-ed, either as a matter of well-established practice or as a matter of "well-established constitutional tradition," the Senate must confirm any "well-qualified and reasonably moderate" Supreme Court nominee.
No doubt others could find more, and still more emphatic, examples. Although it's an obvious point, it's worth stating that no one put a gun to anyone's head and insisted these writers sign on to a constitutional argument of this sort. They could have said nothing, or argued on non-constitutional grounds, including grounds of traditional or optimal Senate custom and practice. They didn't. The fairest and most respectful reading of their action, therefore, is that they considered what the letters said before signing them and believed what they said, and that they should be treated as such.
Given what they wrote, I find it difficult as a matter of constitutional law (on their understanding, not mine) to conclude that there is not an identical constitutional duty in this case to provide a fair and timely hearing to Neil Gorsuch and an up-or-down vote on his nomination. (Possibly, on Stone's view, there is also an obligation to confirm him, although the "well-qualfied and reasonably moderate" language allows for some wiggle room, albeit one assumes it should not be used disingenuously). Of those several hundred signers, one would expect at least a few of them to say so equally publicly, and none of them to contradict their earlier reading without persuasive and sincere reasons to do so.
To be clear, I am not making--am frankly not interested in--charges of "hypocrisy," a move I generally find overused and under-important and try to avoid, and one for which I would have no grounds unless there was clear evidence that they were ignoring or contradicting their earlier-stated views. I am, instead, interested in the fact that this was a large group of law professors voluntarily making a constitutional argument; interested in the obvious implications of this boldly and broadly stated argument in the current case; and interested in whether they will follow through on their own presumably sincere professional constitutional views.
There are a couple of possibilities for action and a couple of colorable, although I think not plausible, counter-arguments. The writers are not obliged to say anything at all about the Gorsuch nomination, or to make any arguments in particular about whether Democrats can delay, resist, or deny a timely hearing and up-or-down vote on Gorsuch. They could write about other aspects of the nomination, or write only about the Garland debacle, or remain silent altogether. Given how strongly they asserted a broad and relevant constitutional principle, this would be unfortunate and suggestive of an unwillingness to speak truth to power. But it is an available option: the best option they have, I think, and the one most consistent with scholarly consistency if not integrity.
Then there are the usual "this case is different" arguments,* and the argument that delay or denial of a hearing or up-or-down vote in this case would be constitutional as a "remedy" to the earlier constitutional violation. I find neither line of argument especially plausible given the earlier assertions. Those arguments, on my reading and I think on any clear reading, were that Senators have a clear constitutional duty to provide a hearing and up-or-down vote to Supreme Court nominees, that the obligation is unequivocal, and that there is no right to ignore it, let alone to do so because you don't like the party in power or the nominee. Of course, one can argue that the Senators should fulfill their duty and then vote against the nominee. (Stone may be barred from making this argument, as we saw, depending on how he uses his wiggle room. Again, I think that wiggle room must be used with integrity.) But I think any fair reading of their earlier statements makes clear that they must believe the same duty applies here. Language like "admits of no qualifications" suggests that simply arguing that obstruction here would be justified in light of the prior obstruction is impossible to square with their apparent constitutional views.
And there are multiple problems with the "remedy" argument. For one thing, most of the time, constitutional lawyers argue, rightly or otherwise, that constitutional "remedies" must not themselves violate clear constitutional rules and duties, and people will go to some lengths to argue that an apparent constitutional violation for remedial purposes is actually consistent with a fair reading of the constitutional text. For whatever reason, constitutionalists generally avoid arguing that some action violates the Constitution but is justified nonetheless. Arguments in anti-discrimination and affirmative action law, for example (and with a good deal of generalization), generally assert that when race-conscious government action is employed for remedial purposes, it is constitutional where the remedy is aimed at addressing identified discrimination that continues to affect individual rights and is closely linked to ongoing governmental actions and effects. That is not an argument that the race-conscious remedy is unconstitutional but justified, but that it is not unconstitutional in that particularized context. It does not apply to this context clearly, if at all. It would certainly be a miracle if all of the several hundred letter and op-ed writers concluded otherwise. Moreover, it is much fairer to call any obstruction of Gorsuch a response to the Garland situation, not a remedy.
One could argue--at least one writer on the constitutional law listserv has done so--that obstruction in this case would be unconstitutional, and that advocates of responsive or "remedial" obstruction in the Gorsuch case should say so in clear terms and argue for it just the same. This has the virtue of transparency and consistency, of forcing its advocates to think about the circumstances in which the Constitution can or should be violated as opposed to massaged or reread, and of being willing to convince fewer people that the "justified violation of the Constitution" argument is right--and risking the possibility that some readers will draw the conclusion that any violation of the alleged constitutional duty of a hearing and up-or-down vote with respect to Gorsuch is just that, and cannot be justified. It would sacrifice political effectiveness for candor. I might not agree with such an argument, but I would welcome having that view aired clearly and publicly.
And, of course, if nothing else, there is a forward-looking possibility, which is that we should--once again--rethink our duties and obligations with respect to signing letters, writing op-eds, and making other public arguments. We could confine ourselves only to those arguments we are sure are right, refuse to sign letters or (especially) write op-eds where we are uncertain their arguments are right, use the narrowest possible arguments we are convinced are correct, and then hold ourselves to those views or clearly and publicly explain why we have sincerely changed our minds.
Again, I make no accusations of hypocrisy or, more important to me, of a failure to make arguments in this case that are consistent with one's clearly stated constitutional views, which is important not for what it says about hypocrisy but for what it says about constitutional and scholarly integrity. To so do, I would have to wait and see how the Senate acted, and then examine every writer's publicly stated views in this case to see whether they followed their earlier views, skirted them, remained silent about those specific issues or about the Gorsuch confirmation process altogether, or offered sincere and persuasive justifications for a change in view. I have seen a couple of Twitter feeds from prominent figures who signed at least one of the documents listed above in which the new statements seem to be in tension with their earlier views. But they may yet qualify their positions, offer sincere and persuasive justifications for any alterations, recant their earlier or newer statements, or even come out in favor of timely hearings and an up-or-down vote on Gorsuch's nomination as a matter of constitutional duty. I do think, however, that what they wrote earlier must be treated as meaning what it said and as a statement of their own sincerely held constitutional views; that any fair reading of those views suggests that, absent some very good reasons, they must urge, or at a minimum not oppose, a hearing and up-or-down vote for Gorsuch; and that any direct contradiction of those freely, voluntarily offered views would raise fair questions about their constitutional views, constitutional and scholarly integrity, or reliability as experts and public commentators.
* As a relevant aside, among the epistemic and rhetorical battles we fight these days, about "fake news," "alternative facts," and the like, there is another problem that I think is both more significant and widespread and much less discussed. That is the profusion of the kinds of arguments, rationalizations, justifications, and rhetorical tactics that are characteristic of both some lawyering and much forensic debate. The problem is not that they are valueless, but that they are much less valuable and much less genuinely respectful of serious attachment to either facts or reasoned elaboration than they appear to be, much more susceptible to "bullshitting," and in the end, in my view, more damaging than some fake story on Facebook to serious discourse or an attachment to integrity and seriousness in thinking and argument. Political argument is not or needn't be legal argument, and legal argument is itself often highly problematic. Once again, although the classic adage is that we are all Legal Realists now, and a few people argue that critical legal theory has not died but been absorbed into general legal thought, I find on the whole that lawyers and law professors at least appear to have internalized very little of the lessons of Legal Realism or CLS, and retain in thought and deed a surprising attachment to the appearance of "reasoned elaboration." Perhaps it ill-behooves a lawyer and law professor to say so, but I think this is a dangerous mistake, especially when this kind of approach to argument increasingly emigrates from the courts and colonizes public and political discussion and debate.
Monday, January 16, 2017
AALS as Trade Association vs. Learned Society, and Whether or How it Matters
This is my last post, God willing, on the AALS annual meeting. In my first post, I argued, in a nutshell, that the AALS is the American legal academy's learned society; that this is a reason to welcome and defend it against its harsher critics; that the AALS or individual executives, treating the organization more as a kind of trade association than a learned society, "have sometimes been too willing to cast themselves in the role of defenders of and advocates for law schools and legal education, rather than academicizing these questions and treating them as subjects for dispassionate and disinterested study"; and that this reflected itself this year in the annual meeting theme, "Why Law Matters," which a) assumed the answer to a genuine question and b) focused in substantial part not on why law matters, but on why American legal education and law schools matter. I did my best to display some sympathy and understanding and to recognize some of the organizational dynamics that push it in this direction, but I was still critical.
In response, a couple of posters here and elsewhere, and one commenter on my post, pushed back on the assumption that the AALS is a learned society rather than a trade association. Mark Tushnet wrote at Balkinization that unlike most academic learned societies, the AALS is organized by law schools rather than by law professors, and said that "[t]he AALS's structure means that it almost necessarily must be something like a trade association for law schools--perhaps with something like a learned society attached to it once a year." "There is in fact," he said strikingly, "no 'learned society' for legal academics." Given that, Tushnet argued, "it's actually something of an achievement that the AALS's annual program has become as intellectually substantial as it is now." Here at Prawfsblawg, Dan Rodriguez offers a short post worth reading in its entirety. Here's a substantial chunk of the post:
[The AALS] is an association of law schools, not an association of law professors. Always has been. Perhaps there is an important place in the academy for an organization of law professors (other academic professions have such associations), but that is not the mandate, the purpose, or the function of the AALS....Prof. Mark Tushnet got us nicely riled up many years ago when he set out as the theme of his presidency, the idea of the AALS as a learned society. Whatever power this had as a normative prescription, and as an exhortation to improve the academic programming of the annual meeting and other AALS conferences, it created a trap to which Paul and other distinguished law profs have fallen into, which is seeing the AALS as an entity whose primary purpose is providing professional development opportunities and good intellectual content for a hungry professoriat. Worthy endeavors indeed (hence the great suggestions for improving the meeting), but AALS functions principally, and by design, to reflect and represent the interests of member law schools....While the AALS surely ought to focus a good part of its attention and resources on providing meaningful opportunities for law professors to engage, to exchange scholarly and pedagogical ideas,...we do our member law schools a disservice to evade and avoid squarely acknowledging its function as a trade association and an interest group.
Dan and Mark, for those of you who may not know, are both past presidents of the AALS, as well as individuals I know and admire. I have not researched the range of disciplinary associations of whatever kind, and am happy to defer to their description. I did note in my original post that "ours is a learned society related to a regulated profession, and thus faces some distinct issues, as opposed to the questions that face, say, a learned society of historians or literature professors"; if that's not a recognition that the AALS is formally a "trade association" rather than a learned society, it's at least an acknowledgment that there are reasons why it might lean in that direction. (In that sense, it's relevant that Mark points out that when he looked into it during his presidency, "the only other profession that had only an association of schools and not an association of professors was dentistry"--another regulated profession. Without my having canvassed the issue fully, note similarly the existence and function of the Association of American Medical Colleges.) So, okay, let's concede, at least arguendo, that the AALS is a trade association, albeit one that also holds an annual meeting that looks a lot like those of other academic disciplines--with more content on legal education itself, perhaps, but also with substantive programs on particular legal subjects. What then? Does it affect my criticisms, and if so how?
As usual, my friend Orin Kerr asks the questions I would ask, and more economically, in his comments on Dan's post. One might put it simply and sympathetically by noting that, even if (as Dan argues in the comments to his post) there is no "tension" between its functions, they may make for odd bedfellows. One wouldn't expect a trade association based on the membership of individual existing law schools to argue in its official capacity, say, that some 20 or more of them ought to shut down. (I'm not averse to this argument, but neither is it an article of faith for me.) But one might expect an individual legal academic--and most key AALS officers are legal academics--to argue just that upon academic reflection. One wouldn't expect the AALS to argue that law doesn't matter, or matter much; or that whether it matters or not has little to do with whether law schools matter; or that law schools' academic function ought to be such as to exclude various measures--proliferating LL.M. programs, various one-year "certificates" that coincidentally and happily provide much-needed income, and so on--that might be crucial to some schools' survival or well-being. But an individual legal academic might conclude just that. "Tension?" Maybe not, as long as individual speakers are free to press that point at the annual meeting and in the Journal of Legal Education, as they are. (A nice test case might be a proposed "Hot Topic" program like "First, Let's Kill All the Law Schools" or "Law School Monopolies, Public Choice, and the Economic Incentives for Law School 'Innovation.'") "Odd bedfellows?" I don't think that's an especially harsh or implausible description.
Then there is the question of the fact of the annual meeting. Again, I'm a defender of the annual meeting, and, like Dan and Mark, I think it's better than its most convinced critics argue, although obviously it's imperfect (what isn't?) and I suggested some reforms. But we might well ask why, if the AALS is a trade association first and foremost, and one organized around law schools rather than individual law professors, it exists at all. We might treat it as lagniappe. There's a flavor of this in Dan and Mark's posts. They write, respectively, that "what is more surprising to me is that the AALS has maintained such strong attendance and loyalty, warts and all," and that "it's actually something of an achievement that the AALS's annual program has become as intellectually substantial as it is now." Both of them have pushed to make the annual meeting better, however, and I don't think either of them think the reaction of law professors to the notion that an annual meeting is kind of a bonus should be gratitude and silence.
But another way to read the fact of the annual meeting is that the AALS is, functionally if not formally, at least in part a learned society, and that it wants to be and/or holds itself out to be one. The by-laws and membership structure may cut against that, or against viewing it only as a learned society. But law professors have, for lo these past hundred years (or several hundred), often argued that form can be less important than function, that organizations evolve within or despite their formal structures, that we should not elevate process over substance, and so on. So maybe the "trade association" answer is not complete. And that point is enhanced when we reflect that even if the annual meeting itself includes many programs on legal education, the AALS also holds subject-specific midyear meetings, and that many of its annual distinguished speakers end up speaking about law, or legal academic work, not just about law schools and their welfare.
Again, I'm happy to concede that the AALS is at least a trade association, although possibly not only one, or that is a trade association "with a difference." Both Mark and Dan, as I understand them, don't rest absolutely on this point. That is, they still think the annual meeting is important and don't think it should be immune from criticism and reform, including suggestions about how to make the annual meeting itself more academically useful, just because it could dispense with an annual meeting (or midyear meetings) altogether, or limit it to a meeting of law school administrators, or what have you. And it is at least possible that we might think of the AALS in the end as being neither fish nor fowl. The question then would be whether we think of it as being free to be imperfect at both functions, or demand that be excellent at both, or suggest that it divest itself of its "learned society"-type functions, or something else.
I come out somewhere like the following. 1) Okay, it's a trade association. 2) For many intents and purposes, the presence of things like the annual and midyear meetings suggest that it is also, in function and in the understanding of most law professors if not in form, a learned society. As Dan notes, if there has been confusion on the part of law professors about this, it's a more-than-natural confusion. But I think it's more than just confusion; it is now part of the identity of the AALS, membership structure notwithstanding. 3) Insofar as it is a trade association, I have much less (or no) cause to complain when the AALS or its executives speak up in the interest of legal education and law schools themselves. 4) Insofar as it also conducts meetings that conform more closely to the learned society model, it should at least give thought to making sure that its annual themes and programs are fairly academic in nature, broadly understood (I see nothing wrong with programs on teaching better, for instance). The AALS might need to lobby others, but it doesn't need to lobby or convince individual law professors attending the annual meeting. I don't want to attach more importance to it than is warranted, but I still take the general view that "Why Law Matters" is an imperfect theme from that perspective, especially when married to arguments that law mattering is the same as something like current legal education or law schools mattering. In dealing with others, it may take a more emphatic position (which, as it comes from a trade association, individual law professors may critique or take with a grain of salt; the conclusions of individual law professors need not conform to the interests of individual law schools, or existing legal education as a whole). At the annual meeting, it should be very catholic and open-minded about such questions. 5) Law professors are free to push for at least some aspects of the AALS to conform more closely to the model of a learned society. Doing so may create, or enhance, tensions between those different functions that might not otherwise exist. So be it.
Even at this length, this post is just a starting point on this issue, which clearly requires more introspection and discussion from law professors themselves, myself included. Mark and Dan have given us a lot to think about.
Wednesday, January 11, 2017
AALS Addendum I: More On "Taking Attendance"
I'm grateful to those who read and commented on my series of posts on the AALS annual meeting, especially but not limited to Mark Tushnet and Dan Rodriguez, who are both past presidents of the AALS. I hope the posts afforded some food for thought, and a little amusement, for those attending the meeting. Let me say again that the three of us have something important in common: We are all inclined to be supporters, not detractors, of the AALS and its annual meeting. As I wrote in my first post, my series of suggestions was intended neither to praise nor to bury the AALS. On the whole, I find the annual meeting useful, and better than its more fervent critics are wont to suggest. No institution or annual gathering is perfect or exempt from criticism. But I am and hope to remain involved in the AALS, both at the section level and in the central organization itself, and I would rather be a part of it, while sometimes waxing critical or pushing reforms, than deride it altogether, boycott it, or give up on the idea of a central organization and gathering for legal academics. On the other hand, I'm always much more interested in criticizing the things I like or am sympathetic to than the things or people I completely disagree with or disdain. Let me also repeat what I said often during the series: my proposals were in the nature of "modest proposals," with at least something of a Swiftian touch. I understood at the outset that it's highly unlikely that the AALS will take attendance at meetings and send that information to deans, or honor overexposed speakers with a gold watch and a five-year ban on speaking. The extreme nature of the proposals served to place the issues they were raising in high relief and provoke discussion. As it turned out, and I suspect this is often the case with semi-Swiftian satirists, and with all authors who make proposals, by the end I was more attached to the proposals themselves than might have been my original intention, and I am now inclined to think it's actually not a bad idea at all to take attendance or come up with draconian rules to deal with extreme "usual suspects" at the AALS annual meeting. Still, I expected readers to take the particulars of those proposals with a large grain of salt and focus on the issues themselves, even if I am now inclined to take the proposals more seriously than I initially intended.
I was grateful to those readers who pushed back on the "take attendance" proposal, which was meant to deal with "lobby-sitters" and "dinner-with-friends" attendees of the meeting, who rarely darken the door of actual program meetings. The upshot of the pushback was that meeting people outside the meeting rooms is a valuable form of professional networking and should not be knocked too readily or loosely. On the whole, I am happy to agree. One might view differently those social gatherings that have more to do with catching up and hanging out with friends per se, and less or little to do with catching up on each other's work. Setting that aside, I'm quite willing to agree that there is value in professional networking--and in some or many cases, it's not just value to oneself or one's personal advancement, crudely defined, but value to the legal academy, insofar as it involves learning about others' work, exposing others to one's own work, learning about what's taking place at other schools, and so on. But I would like to emphasize in response that my question was not whether this kind of networking is worthwhile--it is--but whether and to what extent it's worth subsidizing. (Remember that some of that subsidy comes from, inter alia, student tuitions and the state fisc.) More particularly, the question was whether it's worth subsidizing all that a trip to the AALS entails, including the registration fee for the meeting itself, the extra fee for the annual luncheon (the one program that those who don't attend many programs are most likely to attend), the travel and accommodation costs, and so on, in cases where the person seeking the subsidy doesn't show up for many or any of the actual meeting events. At the best of times, financially speaking, I would find that a dubious proposition--and these are not the best of times. Defending professional networking is easy. Defending asking your law school to pay a registration fee in order to obtain a conference rate at the hotel and a conference nametag (to facilitate identification for networking purposes), but without actually attending the conference proceedings, seems to me much harder. To me, at least, that holds true even if the programs ought to be better.
Whether the AALS takes attendance at individual programs and sends those data to law school deans or not, I think we can usefully ask what those professors who value professional networking but don't intend to attend many or any actual conference proceedings might do instead of seeking reimbursement for the whole conference package when they are only going to take advantage of part of that package--namely, the "lobby" or hallway and the chance to chat with old and new colleagues. Three possibilities spring to mind. One is that the professor simply pay his or her own way. As long as a law school reasonably expects that this person is actually going to attend conference proceedings and is offering to subsidize him or her on that understanding, this seems like the right thing to do. The second is that the professor "go to the conference" but not register for it, and thus limit him- or herself to networking in the lobby or elsewhere, without access to the nametag, the programs (which he or she didn't plan to attend much if at all anyway) and luncheon, the booths downstairs, or the conference rate at the hotel. (Of course, that person could always stay at cheaper accommodations in the city and then commute to the conference hotel.) If his or her law school were willing to subsidize that, on the view that there is sufficient value in networking itself (or because it believes the professor's use of his or her PDF is discretionary as long as it is related to academic purposes), at least it would save the school the cost of the registration fee itself. Finally, if the professor really wanted the conference rate and the nametag but had no intention of attending any conference programs, he or she could tell the dean clearly and in advance that he or she planned to seek reimbursement for the conference fee, hotel costs, and the rest of it, but without attending any programs. I would be curious to find out what would happen in such cases! But surely there is nothing wrong with being transparent about one's intentions with respect to using institutional funds--and conversely, there is arguably something wrong with not doing so precisely because one wants to "attend" the conference without attending any of the programs and fears that such a request would not be approved if it were made transparently.
Again, none of this is meant to disparage professional networking. (Although some dinners with friends are just dinners with friends.) The question is what law schools ought to pay for, and whether it's fairer, and would conduce to better decision-making and resource allocation by law schools, to know what they are paying for. (And, as I said in the first place, professors could always Skype with each other, or email, or do other things. No, it's not as good. But it's a hell of a lot cheaper. And, of course, there are conferences within one's specific field as well.)
In back of this proposal, to be sure, is a general premise: I value the annual meeting as such, including the program meetings. Professional advancement is nice, and need not be viewed in purely mercenary terms. But the AALS is an annual meeting for professional education, including exposure to ideas and speakers outside of one's usual area of focus, not just for professional advancement. I think such a conference is or ought to be a valuable thing for committed members of an academic field. My views above would hold even if that weren't my background premise. But since it is, my "attendance" proposal is not only about encouraging candor, transparency to funders and stakeholders like law students and state legislators, and better resource allocation by law schools; it's also about making the AALS annual meeting itself better, by encouraging registrants to actually attend the programs--and, where subsidy is dependent on their doing so, incentivizing them to get involved in the sections or communicate with the AALS in order to make the program meetings better.
Whether this second point holds might seem to have something to do with whether the AALS is actually a learned society or not, or whether it's something else. That's the point on which Mark and Dan offer some interesting and useful points, and I'll take it up in my next post.
Monday, January 09, 2017
AALS Annual Meeting Reform Proposals, Part IV: Visit the (Remainder of the) United States of America
This is the last of my posts on the AALS annual meeting, post-dating the meeting itself. Mercifully, it's also the shortest. My last, and probably most logistically difficult reform suggestion, is to rethink locations.
I know there is a history here, and also that the AALS needs to lock in its commitments years in advance. But I suspect I'm not the only one who is tired of shuttling between New York (great city, expensive, tiny overpriced rooms), DC (good city, lots of friends in town, expensive, unattractive hotel, exhaustion occasioned by too many trips to the Lebanese Taverna), and San Francisco (wicked expensive). It's a big country and, even keeping in mind all the needs that have to be balanced, surely there are other possibilities. I think it's time for other cities: Dallas, Atlanta, Chicago, Philly, Tampa, Birmingham, Charlotte, Salt Lake City, Memphis, Nashville, Pittsburgh....Some are expensive but many on this list are both accessible and much cheaper than the Big Three that the AALS has relied on for several years. (The last non-big three locale I remember was New Orleans; I'm not sure when that was, but a few years at least.) The AALS annual meeting is already something of a bubble, but there's something to be said for moving that bubble outside the usual bubbles of NY, SF, and DC. It is possible that some attendees might prefer to visit, say New York, than Pittsburgh, or San Francisco to Salt Lake City. But since the programs (or lobby, if you prefer) would be the same, I can't imagine why.
I'll round things out with a further comment about the "take attendance" post, and a post about AALS as learned society vs. trade association, although both will have to wait a bit.
Thursday, January 05, 2017
AALS Annual Meeting Reform Proposals, Part III: Cut Back on the "Frequent Flyers"
The AALS annual meeting continues, and so does my series of posts offering some modest proposals for reform. I should add as a side note that readers may be interested in this post by Mark Tushnet at Balkinization discussing whether the AALS is a learned society or something else--specifically, something more like the trade organization for law schools that I pushed against in my first post. (I'm thankful to Brian Tamanaha for making a similar point in the comments to the last post.) It's an interesting point, and I'll write a separate post responding to it after I'm through with this series.
My next suggestion for reform concerns the overuse of a few, generally well-known or "celebrity," generally elite law professors as speakers at the AALS. This, too, is something that I think is widely perceived as a problem. At the same time, there are reasons both to defend the practice, or at least to acknowledge sympathetically how and why it occurs and how difficult it is to remedy. Let me be clear that there is clearly a touch of "modest proposal," in the Swiftian sense, to the modest proposals I make below.
I know from past experience as a section head and as a program planner that the AALS encourages planners of section programs to take into account the need to include junior as well as established law professors as speakers, to seek at least some forms of diversity in panel composition, and so on. I also acknowledge that in planning section programs, I too have turned to some of those well-known profs (always for a reason, but it's never hard to come up with reasons, or excuses, to do so) as invited speakers. One reason they're invited is that they often actually have something valuable to say. Another is that they're demonstrably willing to come and speak. Finally, it's worth noting in fairness that the list of people who actually end up speaking doesn't show all the invitees who declined or canceled. Sometimes section meeting programmers try harder to avoid the list of overused speakers than the results suggest.
But although the AALS urges its program planners not just to turn to the same celebrity talking-heads time and again, it's also clear that not every planner takes that advice. Among other things, program planners have a strong incentive to invite famous names, in order to get better attendance and thus secure better time slots in future years. (It's also possible, as a commenter on the last post suggested, that they may do so for reasons of personal advancement.) Between those incentives, the sheer number of sections, the willingness or eagerness of some celebrity speakers to talk frequently (perhaps too frequently) on a wide (perhaps too wide) range of topics, and the general collective action problems involved, the result is that a small number of speakers, many of them from elite schools or with individual "celebrity" status regardless of where they teach, serve repeatedly, year after year, as speakers on multiple programs. Many attendees are at least a little tired of this phenomenon. Even those who see good reasons for it think it runs to excess. And most of us could come up with the names of the same half-dozen to dozen-and-a-half "frequent flyers" or "repeat offenders," if I may lightly and respectfully call them that.
Again, I acknowledge that these celebrity speakers may have plenty to say. (But not necessarily. I have seen some phoned-in appearances, as have we all. And who knows what interesting things a newbie or less-famous law professor might have said in their place, given both his or her actual expertise in the subject and the extra effort that might result from gratitude at being invited to speak?) I also know there is real interest in hearing them speak. Nevertheless, precisely because of all the collective action problems and the difficulty of keeping things to a reasonable level of repetition, I would suggest that the AALS, and all of us, would be better off with a fairly rigid rule-based approach here. That might consist of a limit on the number of speaking appearances any individual person can make per year at AALS, a limit on the number of times they can speak in a three-year period, or some combination or variant of the two.
To those reasonably plausible proposals, I would add a brace of less likely suggestions, acknowledging their somewhat Swiftian character, although I also admit to finding them intriguing. First: Once someone has made a certain total number of AALS appearances--25, say--they should be singled out for public recognition and applause at the annual meeting or in the program, given the equivalent of a gold watch or membership in an AALS Hall of Fame, and banned entirely from speaking at AALS for a period of, say, five years. Second, as a way to counter the incentive of individual section meeting planners to invite overexposed celebrity profs to speak, in order to secure attendance and improve the section's scheduled slot in the following year, while balancing that against the possibility that a section planner might think it's really vital to have that overused speaker, we could go with something like this: The AALS will compile a list of overexposed speakers. (Plenty of people would be willing to help with that effort.) Section planners will not be forbidden to invite one of them to serve as a speaker. But if they do, that section is automatically assigned an unattractive slot on the last day of the conference the following year. That way, a section planner who thinks it is absolutely necessary to invite Overexposed Speaker X to participate can do so--but he or she had better decide it's really worth it, because the section will suffer for it the year after.
These measures are obviously draconian. Like most rules, they are over-and under-inclusive, but may be necessary where standards won't suffice to solve the problem and it's better to have a firm rule. It may be worth it here; a "drive sensibly"-type standard is clearly not working. Such an approach would do a world of good, I think, especially for younger and less famous law professors from the more plebeian schools. Although it's not a principle reason for my suggestion, I would note that a policy along these lines would also be good for minority professors, both senior and junior, and in some cases would remedy the slight, perhaps only seeming, absurdity of some majority-group, elite celebrity professor being invited repeatedly to take the spotlight, and accept the plaudits, to pronounce on the virtues of diversity or the equal importance of all law schools, while junior professors, denizens of lower-ranked schools, and minorities are effectively frozen out of that speaking slot.
A few counterpoints and concluding observations after the jump.
Three concluding notes about this proposal. First, I repeat that it is in the nature of a "modest proposal," is unlikely to occur, and definitely has its share of arbitrariness. Think of it, in part, as a way to bring the issue of overexposed celebrity speakers at AALS to the surface and provoke discussion about it. Still, I'm not sure how much we should worry about its being somewhat arbitrary. It is arbitrary, but not terribly unjust, unless you think that being prevented from making Panel Appearance Number 26 is terribly unjust. And we might ask: Even if such a rule is arbitrary, what's the worst that would happen? On the one hand, we would lose some valuable remarks from some valuable speakers. On the other, as I think everyone agrees, not every celebrity speaker makes valuable remarks on every occasion, and some of them make the same points, albeit potentially valuable ones, repeatedly, so we wouldn't really lose that many insights on net. If they couldn't speak so often, they might only accept invitations to speak on the occasions where they believed could make the best contribution. We would hear from a wider and newer range of speakers, some of whom would turn out to have unexpected and terrific things to say. We might get more, and more varied, forms of diversity in the universe of conference speakers. Those possibilities seem worth the cost of a firm and somewhat arbitrary rule.
Second, one possible objection is that for some (or many) law professors, this is the only chance they may get to meet and hear from some of these celebrity speakers--some of whom, after all, are celebrities for good reason. Although I'm sympathetic to this point, I don't think it outweighs the need to address what I see as a problem for the annual meeting. But I find the point interesting, unexpected and, as I said, sympathetic, and I'm happy to air it for discussion.
Finally, let me note that in writing this post, I went over this year's list of speakers to scan for repeat performers. Two things struck me about them. First, to be demographically blunt, they are not all white men, or white women. (But most of them are.) Second, they are not all elite and/or "celebrity" professors. A large number of them are. But running close behind are individuals who are present or former AALS officers, not necessarily from elite schools, and many of whom are speaking on topics concerning legal education, often in programs put together by the AALS itself rather than individual sections. (If that is correct, we might worry about that.) My sense is that the list is somewhat broader than the stock image one might have in mind of repeat performers all coming from the same three or four schools. But I don't know whether that is always the case, or whether this year is different from the usual pattern. And I wouldn't want to overstate the breadth of the list. There is a celebrity culture in law schools, often involving faculty from the same few schools, and it does result in a number of generally elite repeat performers at AALS. I think it's worth acknowledging this fact more openly and discussing it, and what (if anything) ought to be done about it. The rules proposed here are intended to help encourage that, in part because of their epater-le-bourgeois quality--although I also kind of like the proposed rules, and perhaps especially the more far-fetched ones.
Enjoy your annual meeting!
Wednesday, January 04, 2017
Bryan Garner on Book Reviews, Plus Irony Alert
I am no particular fan of the ABA Journal, whose quality seems to have declined over the years. That said, I'm happy, or happy-sad, to note that this month's issue includes a column by Bryan Garner on a favorite hobby-horse topic of mine: the lamentable disappearance of book reviews from many law reviews, bar journals, and other general legal-reading sources.
Note that the ABA Journal used to run book reviews, but for quite a few years now has stopped doing so--although it does seem to find the time and space to let us know about "lawyers in film" and "the top legal movies" at least once a year, and about "Legal Rebels" more or less ceaselessly.
AALS Annual Meeting Reform Suggestions, Part II: Take Attendance
Following up on yesterday's post on the AALS annual meeting, there are three more specific suggestions I would like to make in the remaining posts. The first has to do with attendance at the AALS annual meeting, and specifically the question whether a number of attendees are "lobby sitters" who do not actually attend much if any of the meeting programs; whether law schools, especially in a time of budget shortages, really ought to be paying for that activity; and what might be done about it.
It is impossible for any person attending to figure out how many law professors at AALS attend many of the programs, some of them, very few of them (or the annual AALS luncheon only), or none at all. It is true, and I think anyone who has ever been to AALS will agree, that it seems as if many people attending AALS just hang out in the main hotel lobby, stirring only to sign up for random prize drawings at the publishers' booths and go out to dinner with friends, without attending many or any actual programs. It's impossible to say: the faces in the lobby change, and of course they may leave to attend many programs and then return to the lobby. But it is at least a possibility that some professors attend the annual meeting largely, if not entirely, to get a (law-school-subsidized) trip to sit in a hotel lobby in SF, NY, or DC, a (subsidized) chance to see far-flung friends, and a nice (subsidized) dinner with them. That's not what the annual meeting is for. Nor is it what law school budgets, including discretionary faculty "research" or "professional development" funds, are for.
I would recommend the following modest proposal: Require people to sign in at every program meeting, and carefully compile and record the attendance data. Requiring everyone to sign in before entering a program meeting, and compiling the data, will require some greater expenditure of resources, but it's not immense or impossible. It may not stop people from leaving the room shortly after signing in, but so be it.
Follow up on this by sending to the deans, and only to the deans, data about their own professors' attendance, noting the name of each faculty member from that school and the number of programs for which he or she actually signed in. Leave it to individual deans, in consultation with their faculty or not depending on individual school policies, to decide how to respond. Maybe it will turn out that all the seeming lobby-sitters actually do attend various programs, and maybe not. Maybe the dean and/or faculty at a given law school will decide that it is a waste of that school's budget to subsidize a trip that consists largely or exclusively of dinner with friends in some distant metropolis. Maybe they will decide that the law school can and should refuse to subsidize any AALS trip where the attendee fails to attend fewer than three, five, or more programs. Maybe they will decide to leave the use of such funds purely within the discretion of individual faculty, even if the funds are used unwisely. The students at those schools, or the central administrations of those universities, or state legislators where public universities are involved, may be also curious about those data and ask to see them, and react accordingly depending on the answers (or the refusal to give any answers).
The results might be unpleasant, but they don't strike me as unreasonable. In particular, it doesn't seem unreasonable to me for deans to question whether their budget is best spent subsidizing dinner-with-friends junkets. Nor does it seem unreasonable for students and other law school funders to ask the same questions. At the least, such a policy would certainly help us to learn more about actual attendance practices by individual law professors at the annual meeting.
A couple of anticipatory responses to questions or objections after the jump.
A note or two about some possible comments or questions. (I field-tested these posts on Facebook before posting them here and got some interesting responses, incidentally. I'm grateful to those "friends" who responded.) It may be argued--it has been argued--that what happens at those friendly dinners is more intellectually interesting than anything that takes place at the actual meeting program. It may be also be argued that those informal meetings and dinners are good for professional advancement and so on, perhaps as distinct from and perhaps inextricably linked to intellectual development. I have a few answers to these points. The first is that I'm happy to elicit discussion of these issues and hardly expect my proposal to meet with complete agreement. Indeed, I look forward to agreement, disagreement, and anything in between.
More directly, even if these points are true, I'm not sure they merit full subsidy of lobby-sitters' attendance at the annual meeting by law schools, especially when they are accompanied by the extra expense of actually registering for the conference. (Many professors have complained, fairly or not, that the registration fee for AALS is pretty substantial.) Interesting intellectual discussions with far-flung friends may be more enjoyable and fruitful at a nice restaurant in New York, but can be held more inexpensively at conferences elsewhere, by email, or via Skype. In particular, one would expect more intellectually fruitful discussions to be held at subject-specific conferences, and "mere" dinner-with-friends gossip and discussion to be the nature of meet-ups at a general conference. Professional individual advancement of certain kinds (planning conferences or joint book projects, for instance) can be valuable for law schools. But, again, I'm not sure that justifies paying a substantial registration and travel fee, absent any attendance at the actual meeting. Other kinds of professional advancement--trying to make a lateral move, say--can also ultimately be good for law schools, but there's still less reason to accept without meaningful discussion the proposition that law schools should subsidize it, especially by paying for someone's registration fee at a conference that he or she doesn't attend. If that's all you're there for, you can always pay on your own dime to travel to the same city and stay at a cheaper hotel nearby, without registering for the meeting or asking the law school to pay for anything. (Or you can ask the law school to subsidize that kind of trip, and see what happens.)
In any event, it would be interesting to find out what people are doing at the annual meeting, and discuss openly how to shape our funding policies accordingly. Taking and reporting on attendance will facilitate that. And if the data suggest that the dinner-with-friends discussions are more interesting or valuable than the program meetings themselves, then: 1) law schools (and their constituents, such as tuition-paying law students) can have a useful discussion about how to respond to that; and 2) the attendant embarrassment will certainly be a strong incentive for the AALS to plan better programs.
It may also be noted that there are other conferences held in concert with the AALS annual meeting, which the AALS has gradually treated with a more welcoming spirit in recent years. The most prominent is the Federalist Society meeting, which is very good, but I have also attended at least one fine session of the Lumen Christi meeting. Registration fees for those meetings are low or non-existent, and I am informed that conference rates are available at the AALS hotels at least for those who register for the FedSoc meeting. I have no problem with law schools subsidizing a trip to attend one of those conferences, even--or, rather, especially--if the person seeking the subsidy doesn't register for the AALS annual meeting. They're serious conferences in themselves, and signing up for one and not the other would save the law school paying for the trip considerable expense. The interesting question arises whether, if law schools stopped subsidizing AALS trips absent a showing of actual attendance at some number of program meetings, the lobby-sitters and dinner-with-friends types, if they exist, would simply sign up for and not attend one of those conferences. I think we can burn that bridge when we come to it. But I'm really not sure how that possibility would play out. Some professors might be shameless about accepting a subsidized trip to not attend the AALS meeting, but refuse to register to not attend the Federalist Society meeting, for strange political reasons. If people stopped attending AALS but continued taking advantage of subsidies for FedSoc or some other simultaneous meeting, AALS might respond in various ways, including more vigorous competition and a more attractive (and perhaps more politically diverse) annual meeting. And it is possible that the changes in law school funding policies that might result from all this, or the change in relationship between the AALS meeting and the satellite conferences, would lead the satellite conferences to start charging a registration fee, taking attendance, or something else.
It's worth observing that at least one or two sections have come up with creative ways to combine the networking and friend-meeting aspect of the AALS annual meeting with actual programming content. The environmental law section, for example, plans annual field trips that seem quite popular. I haven't attended one of those field trips, so I can't speak to their merits. But they do indicate that there are productive ways to enable people, at least within a particular field, to network and see friends while encouraging participation in section events rather than mere lobby-sitting.
Of course, it's possible that there is little or no "lobby-sitting" behavior at AALS. And if there is, some might argue that it's nobody's business but their own how they choose to spend their time and their professional development funds. Requiring people to sign in for program meetings and collecting and analyzing the data would help us to answer the first question. And I welcome the more open and transparent discussion that would result from the latter argument, if anyone cares to make it. Whether it's anyone's business or not depends in part on the specifics of individual law schools' policies regarding professional development funding. But I think it's hard to argue that how individual law professors spend law school money that is earmarked for professional development purposes is no one else's business. It's not just a salary bump, or at least it sure ain't supposed to be.
Two final points on this subject. First, given my view, which I offered in the first post, that learned societies do or should mean something, and that there is or ought to be some value in having annual gatherings of a learned profession, I do think there is something important about discussing all this in the context of the AALS annual meeting specifically, and I do hope that the result of such a discussion is a policy or social norm that encourages actual participation in the meeting by attendees, rather than mere lobby-sitting. If a change in policies also encourages better and more attractive programming at the annual meeting, so much the better. And if it results in a few people having to spend their own money on what is essentially a personal trip, or staying home instead, I will not weep overmuch at that prospect.
Second, it is fair to note that individual school policies concerning paying for attendance at the AALS annual meeting have already changed at many schools. For instance, many schools that used to automatically and separately subsidize attendance at the AALS annual meeting now require professors to seek reimbursement for this trip out of their general professional development funds, forcing them to decide whether to spend those funds on AALS or on something else. (If there are law professors out there who only "attend" AALS, or SEALS, but without actually attending any program meetings, and who face no difficult allocation decisions because they never attend conferences in their own fields and have no other professional activities or needs on which to spend their professional development funds, well, that raises another set of questions about those individuals, if they exist.) Surely that is mostly the result of general budgetary concerns, but I suspect it also has to do with implicit judgments about the value of the annual meeting. Having more and better data about attendance might shape these policy changes further. Refusing to subsidize AALS trips by lobby-sitters might encourage the AALS to improve its programming further. (In fairness, I argued in my first post that complaints about the content of the meeting are overstated.) That would surely be a good thing, and it might lead law schools to return to their earlier policies, which allow and encourage attendance at what is, after all, the annual meeting of the legal academic profession's learned society.
Again, I welcome comments--hopefully temperate, but critical comments and questions are certainly welcome. Enjoy your day at the conference!
Tuesday, January 03, 2017
The AALS Annual Meeting: A Partial Defense and Some Mild Reform Proposals--Part I: "Why Law Matters?!?"
The AALS annual meeting starts today in San Francisco. You can find a full program here. That makes it an ideal time to propose some changes or reforms to that meeting. I have several suggestions and will make them in several posts. The second suggestion, which will follow in a subsequent post today or tomorrow, is my personal favorite. But I start with both a general defense of the AALS annual meeting and a general critique of the tendency of the AALS to defend law schools, which I think moves it too close to a trade association or lobby (more on lobbies, of a different sort, in my next post) and too far away from what ought to be its role: that of a learned society.
I expand on this point at my usual painstaking and/or tedious length below. But I will summarize it here, both for tl;dr purposes and in case you're hurrying into a program meeting. The long and short of it is this: The AALS, as a learned society, should discuss and examine, but not defend or (possibly) take a position on the status quo in legal education. That job is outside its proper role. And it should certainly have avoided or rephrased its conference theme this year, "Why Law Matters." That is not really a question at all, and at best is not the right question. And it goes too far toward assuming the answer.
At the outset, to place this and the following posts in context, let me say that I am not generally hostile to the AALS and that I am generally inclined to defend it. I know that a large number of non-law-prof Internet commenters are ill-disposed to the AALS and its annual meeting. Those commenters may be unaware that a fair number of law professors are themselves hostile to the AALS, the annual meeting, or both. Other law profs are not opposed to the organization or its annual meeting but, for various reasons, make a point of skipping it every year. I am not attending this year, but it has to do with my own schedule, not with any judgment of the event itself, this year or in general. My credentials for criticizing without scorning the AALS, and my general views on the organization and its annual meeting, are something like the following. I have attended the annual conference almost every year since I began law teaching. I have been the section head or co-head of at least two sections and served on section executives almost every year, and hope to continue doing so. I serve on an AALS Standing Committee, though I must confess, with sincere apologies and the usual pathetic nod to my various surgeries and so on, that I was a poor committee member this year. As with my involvement in individual sections, I hope to remain involved in the central organization itself. I come neither to praise the AALS nor to bury it.
Learned societies are common features of the academy and its individual disciplines, and should be. As I've written here before, I have doubts about the direction those societies are taking. Specifically, I am concerned about their increasing tendency to take explicitly political stands, justified by dubious arguments about the relationship between some academic discipline and political duty or change, or about the supposed insight that membership in some academic discipline gives one on various issues. I tend to believe that academics who share my doubts should not boycott their respective learned societies, but remain actively involved in them while opposing those tendencies. Similarly, those who question the value of a particular learned society ought to remain inside it and strive to make it better, rather than dismissing it altogether. As for the AALS annual meeting itself, I understand the arguments that the meeting is too varied and its section programs too weak, and that one is better off attending a subject-specific conference than a general gathering like this one. But I still find sufficient value in various section meetings, workshops, and so on, as well as the general value of participating in the overall affairs of legal education and its learned society, to justify attending. And I think the criticisms of the quality of the section programs, while not ungrounded, are exaggerated. In any event, if you think the programs are not good enough, you should stay involved and work to improve them. It's true that, in general, I'm not a joiner. But in this case, any criticisms or suggestions I offer here are of the "inside-the-tent" variety. I will also note respectfully that one of our perma-Prawfs, Dan Rodriguez, is a past president of the AALS. He did an excellent job of discharging his duties, and has been an effective defender of the AALS. He, better than I, can speak both to its virtues and to the challenges and tensions it faces and, perhaps, the difficulty of making some of the changes I suggest in this and subsequent posts.
Although I am happy to defend the AALS and its annual meeting in general, there are some changes I would love to see. In this first post, after the jump, I make a general point about the role of learned societies, which I apply specifically and critically to this year's questionable conference theme, "Why Law Matters."
A) In addition to the general "purely academic vs. substantially political function" question confronted by many learned societies these days, these groups also face the question whether their job does or should involve what we might call a "trade association" role as well as that of a learned academic society. That's probably true of all learned societies. But it is especially true of the AALS, because ours is a learned society related to a regulated profession, and thus faces some distinct issues, as opposed to the questions that face, say, a learned society of historians or literature professors. Since 2008, especially, the AALS and/or individual executives seem often to be willing to talk about the state and fate of law schools, the value of going to law school relative to other professional choices prospective students might make, the value of a law degree, and so on. From my own perspective, and notwithstanding the reasonable arguments that individual speakers have made on these points, they have sometimes been too willing to cast themselves in the role of defenders of and advocates for law schools and legal education, rather than academicizing these questions and treating them as subjects for dispassionate and disinterested study.
I can understand the temptation to do so, and even how some might view it not as a temptation but as a duty. But I think it's a questionable course of action. I'm not sure it's consistent with the best traditions of a learned academic society, which ought to approach such questions academically. Whatever value there is in the study and teaching of law in general, as a learned academic society, the AALS must remain open to the conclusion that if plausible arguments can be made that a large number of schools ought to shut down, or that students could do better elsewhere and ought to be deterred from attending law school, or other conclusions that would be harmful to individual law schools or to the welfare of American legal education in general, then so be it. The job of the AALS should be to facilitate learned discussion within and about the academic profession of law, not to serve as a lobby or trade association for American law schools.
To this general point we might add that, whatever supposed expertise the AALS might bring to the kinds of issues that might occasion "trade association" work on behalf of law schools, it also faces some important institutional tensions and incentives that might influence its positions and answers. Suppose that the best answer to the general question of the future of law schools is that 30 or 40 percent of them should be shuttered, and/or that we need to focus on the survival of the best, most elite law schools and kill a great many of the lower-ranked law schools. I'm not arguing for that position here, especially the latter position. I don't tend to share it, although I think self-interest shouldn't affect our reaction to these options, and I certainly think a plausible argument can be made for reducing the number of law schools. As a matter of institutional political economy, however, it would be a difficult position for the AALS to take, even if it were the best answer produced by academic consideration of the question by the legal academic community. The AALS depends for its well-being on the membership of law schools in general, half of which are necessarily "lower-ranked" and many more than half of which are necessarily non-elite. All those schools are represented in the organization, and its leadership often includes deans and faculty from those lower-ranked schools. They are unlikely to champion such a position, and unlikely to support a learned society that does. It is certainly possible, in another discipline, to conclude from the inside (or the outside) that that discipline is over-producing members (or would-be members) and that it ought to get rid of many of its graduate programs: that, for instance, if history programs are turning out far more history Ph.D's than there are jobs for history professors, there ought to be fewer graduate programs in history. It ought to be open to our learned society to reach similar conclusions. But for reasons of institutional politics, that's a difficult or untenable position for the AALS to take.
Accordingly, in my view, if the AALS discusses such issues at all, it ought to treat those questions as subjects for truly academic discussion, and refuse to advocate for or take positions on law schools or legal education in general.
B) That is a general criticism, but it has a more specific application to this year's AALS meeting theme: "Why Law Matters." In describing that theme, the conference program says, among other things, that "[w]e need to make the case now for why law matters and the academy’s role in advancing respect for and understanding of the rule of law." It adds that "[a] more intentional focus on why law matters can also help us to re-energize our teaching, research, and service, and inspire a new generation of students to dedicate their lives to the law." The program includes a symposium titled "Why the Decline of Law and Legal Education Matters (And What We Might Do About it?)," which includes the following description:
During the last decade law and legal institutions have confronted a loss of power and status vis a vis other social coordination mechanisms–in particular markets and technology. During this same period law schools have faced a perfect storm of underemployment for graduates, reduced tuition revenue, and declining subsidies from state governments. Has the legal academy’s focus on threats to law schools left us slow to react to the even greater challenges to the rule of law? What is being lost? Why did it happen? What can law schools do about it?
To my mind, the title of the general program theme, and some of its particulars, including that symposium description, are not ideal for a learned society. It's a little thing, perhaps, but there seems to me a big difference between asking legitimately and academically, "Does Law Matter?," without any pre-judgment of the answer to the question, and asserting positively that "Law Matters," and thus that the only remaining question to be answered is "Why" it does. There are, of course, all kinds of arguments that can be made for why law does matter, and they are arguably especially pertinent this year. But there are also relevant and plausible arguments that can be made for why law doesn't matter, why it doesn't matter much, or why it doesn't matter as much as some law professors, lawyers, or laypersons think. These should be framed as questions to be discussed openly, academically, and without concern for what those answers might mean for our own jobs.
And there are even more reasons why, even if law matters, it's far less clear that "the decline of law and legal education" "matters" for the well-being of law itself. Maybe "law" would suffer if there were fewer and better law schools--but maybe not; maybe it would benefit from the change. Law is not the sole province of lawyers. Perhaps it would benefit from having fewer (and fewer unhappy) lawyers or law students, and more civically educated and engaged engineers, small business owners, blue-collar workers, and others. We should at least be open to the possibility, instead of channeling the discussion in a direction that is likely to issue in more of the usual defenses of law, the legal profession, and especially legal education.
"Why Law Matters," in my view, is neither the right question nor a question at all. It would have been better if the AALS, if it were going to select such a theme, had titled it differently, and organized the discussion accordingly. Something like "Why Does Law Matter?" or, even better, "Does Law Matter?" would have been a much more appropriate theme. It would also, I think, have a better chance of producing a more interesting discussion.
Relevant, preferably non-overheated comments are welcome. More suggestions for changes or reforms to the AALS annual meeting will follow in three subsequent posts.
Wednesday, December 21, 2016
[WITH UPDATE] Doubling Down AND Walking Back on "Abandoning Defensive Crouch Liberal Constitutionalism"
I figured it would not take long, between the election itself and Randy Barnett's slightly parodic (I think) recent counter-post, for Mark Tushnet to revisit his notorious Balkinization post on "abandoning defensive crouch liberal constitutionalism." My assumption was that he would (a) double down on his original post, (b) walk it back in various ways, or (c) do both. Yesterday he put up a post on the question. It is titled "Doubling Down (on 'The Culture Wars Are Over')." Despite the title, my reading is that he went with (c).
Yes, Mark writes that he will "double down on the point that clearly was most annoying--the claim that the culture wars are over, and that liberals won." I think there is a pretty good basis for that claim. The election does not directly refute it, by any means. If the election results are read as a result of economic concerns, or of working-class populism, or of nativism, they can be read as irrelevant to the culture-war questions Mark focuses on and thus not refuting his argument. If they are also read as having do to in part with a combination of those concerns and the arguable failure of the Democratic nominee to run a sufficiently smart and locally responsive campaign, or the fair and/or unfair negative perception of the candidate, or the foolishness and complicity of the party apparatus in doing its best to install a longstanding establishment candidate and her machine rather than spend the last eight years building and encouraging new candidates, or some combination of these and other factors, some within and some beyond her control, then the election results are even weaker as a refutation of Mark's argument.
The best argument against a general and confident claim that "the culture wars are over, and that the liberals won," I think, has more to do with the general nature of culture wars, which counsels against hubris or premature declarations of victory. It may be that culture wars are more or less permanent features of the American landscape, that they subside or change focus but do not simply go away, and so cannot so easily be declared "won" or "lost." I think there is some truth to this point, but also that there are strong grounds for saying that on some issues there are long-standing, seemingly permanent changes in social views on some issues. On some of the issues that Mark picks out in implicitly defining what he means by the "culture wars," there is an excellent case that the "liberals" won on those issues. We should be specific in saying that these are liberal victories, not necessarily leftist or radical victories, and that some of those victories may involve or rely on some domestication of the issues under conflict or of the "victorious" position, as in the strategic shift over a couple of decades by the LGBT movement away from some issues and positions and toward a focus on the bourgeois institution of marriage, understood and depicted as such. Although I think something was lost by steering away from more radically "queer" positions and marginalizing queerer thinkers in favor of more powerful establishment types and their views, as a fairly bourgeois person myself I can't complain too much about this. In any event, there is no doubt that there have been real changes and genuine liberal victories on some important culture-war issues among those selected by Mark. (On others, I think the "victory" is less clear or stable than he suggests, and that some of his language implicitly concedes this possibility.)
So, on the one hand, he doubles down. On the other, I think there are also significant signs of walking back his argument. Here, the evidence is less what he does say, and more what he doesn't say and how he characterizes his earlier post. Consider that line again: "I'm going to double down on the point that clearly was most annoying--the claim that the culture wars are over, and that liberals won." Given that Mark received deplorable hate mails in response to his post, I am happy to posit both that some readers (or, more likely, some readers of others writing about his post) indeed found that the most annoying point, and that he is arguing this in good faith, and with plentiful personal justification. But my take on both the original post and on much of the (public, polite) reaction to it is that for many, that was not the most annoying point of Mark's original post, nor its central or most important point. For those readers, what mattered most was not, say, the assertion that liberals had "won" on gay marriage, in a culture-war as well as a legal sense. Rather, it was the point that, after all, formed the title of the post: that liberals should "abandon [a] defensive crouch" and take a "hard line" in dealing with "the losers," complete with historical comparisons casting those "losers" in the role of the Axis powers in World War II and the Confederacy in the Civil War. [Note an update below the fold. I don't think it changes the general argument I make here, but it does add a cite to another post by Mark shortly after his initial one.]
Again, I don't doubt that Mark's most vicious correspondents were focused more on the substantive culture-war issues themselves than on the advocacy of an aggressive, uncompromising consolidation and advance on these issues by liberals, perhaps or even presumably led by a cadre of elites of the sort Mark teaches every day. But I read the public reactions to the post, at least in those media intended for generally educated readers of a conservative bent, as focused much more on the latter than the former point. And on that point, there is a contestable but fair argument that the election results, along with interviews, reporting, and some polling data, do show both that this concern was relevant and that many voters reacted strongly, not to particular substantive issues themselves, but to the idea of having centralized establishment elites entrenching their own power and using it by hook or crook to push their victories into new territories on new positions and take a "hard line" against those "losers."
On those issues, Mark's new post at a minimum deemphasizes them, on the whole is fairly silent about them, and to the degree that he addresses them seems to take a different tone, if not a different position. The earlier post acknowledged that people may differ on "question[s] of tactics," but argued that "taking a hard line . . . is better than trying to accommodate the losers. He added: "When specific battles in the culture wars were being fought, it might have made sense to try to be accommodating after a local victory, because other related fights were going on, and a hard line might have stiffened the opposition in those fights. But the war’s over, and we won." The new post contains this language:
But, what about accommodations for those with religious objections to providing business services to members of that community? Here everything turns on details, which the gloaters seem to ignore. From the outset I thought -- and wrote, but of course no one paid attention to it -- that we were likely to end up with a limited form of accommodation. I thought that it would be for relatively small owner-operated businesses whose owners had religious objections to providing what I'd describe loosely as "expressive-related" services. And I still think that's where we're going to end up, though there will be variations in the details -- size, what counts as an "expressive-related" service, and the like. For me, this sort of accommodation was itself an indication of the "we won" position.
It is true that Mark elsewhere has been more accepting of some accommodations than others have been or are. But the "abandoning defensive crouch" post certainly doesn't spell that out, and I'm not sure it's fair to tax the "gloaters" with having ignored any especially clear language on that point in the earlier post. (You can read it for yourself, of course, and may read it differently than I do.) Nor do I think they would have been out of line in reading the tone of the earlier post as being very different from the tenor of the paragraph quoted above. It appears to move from having treated accommodation and compromise as something that used to make sense but no longer does, and about which there is little good reason to compromise or accommodate either tactically or for its own sake (because "liberals regard [the positions on which accommodation or compromise is sought] as having no normative pull at all"), to now treating any future accommodations as just further confirmation of the liberal "victory."
I think it is fair to read all this as showing a degree of walking-back. [See the end of the post for an update.] And the other evidence of walking-back is more general but equally important: it's the shift in focus that is effected by treating his earlier post, or reactions to it, as having been principally about whether "'we' won" the culture wars, when I think it would be fair to read the earlier post as having been about what to do next--namely, to take a "hard line" against the "losers." That shift allows Mark simultaneously to "double down" and to remain mostly silent about a great deal of the post and the public reaction to it. That reaction includes the election results, which in their own way suggest that Mark's post contributed imperceptibly to a Trump victory and thus weakened, rather than strengthened, the liberal culture-war victory or the possibility of advancing it. (Although I firmly oppose Trump, I do not mean this as a condemnation. Good academics should write what they think and write as academics, not treat themselves as PR specialists or apparatchiks of a party or political movement.)
At the end of his earlier post, Mark wrote: "Of course all bets are off if Donald Trump becomes President. But if he does, constitutional doctrine is going to be the least of our worries." It may have seemed like a throwaway line at the time. But I think it's right, or at least that constitutional doctrine around the specific culture-war issues Mark was writing about is less important now than other issues. The effect of that prospect on the culture wars is, I think, complicated, and I've written about that elsewhere in a forthcoming book review. It is possible that Mark's own blogging and writing will reflect that change in focus. But I hope he does continue to revisit these issues, and my sense is both that there will be continuing occasions to do so and that "doubling down" will not be enough. Some reconsideration of the earlier post in light of subsequent events will continue to be necessary, and will require either some genuine revisions or still more walking-back.
A couple of side issues: 1) Mark writes that another feature of the reaction to his earlier post by various critics was a "systematic misreading of the post as advice to liberal judges rather than to liberal academics--a misreading that does not give one a great deal of confidence in those who assert that they are interested in interpreting the Constitution's text as written; if they can't read a blog post's text accurately, why should we think that they can read the Constitution's text accurately?" I think the snark is not justified by the original post. If that was the intention of his earlier post, it was not so clear as to make the "misreading" egregious, let alone to justify labeling that "misreading" as "systematic." Again, you can read the post and decide for yourself. I think it is certainly true that it does not read as giving advice to judges. But neither do I read his earlier post as addressed to a "we" composed entirely of "liberal academics," or at least of liberal academics acting as actual academics. To me, it reads as advice to a "we" composed of liberals actually engaged in wielding power (possibly including judges). To the extent that it is addressed to liberal academics, they appear to be addressed in the role not of academic writers writing for academic purposes and audiences, but as writers of amicus briefs and op-eds, advisors to interest groups, advocates and strategists, and so on--in short, as apparatchiks and political actors, not academics or intellectuals, and in no way distinct from many other sectors of the political establishment. To be sure, there may be some academics, liberal or conservative, who think of themselves in precisely those terms (alas), who tailor or trim their academic writing to serve those ends, and/or who believe, with whatever hubris or self-deception, that even their law review articles are an important part of their political work. And certainly arguments can be made about the indistinctness between purely "academic" and purely "political" writing and work. Suffice it to say that I think the natural reading of the earlier post is that it was intended for an audience of fundamentally political actors acting for political purposes, and that it did not seem to place any emphasis on academic readers in particular, as opposed to elite liberal lawyers more generally. Reading it as addressed only or specifically to judges would be an error; reading it as not being addressed only or specifically to "liberal academics" would not, in my view.
2) I continue to be skeptical about the helpfulness of the historical analogies Mark offers. My earlier post, linked to in the previous sentence, registers some doubts about the analogies he used in his earlier post. In the new post, he now offers the suggestion that "[t]he gloaters are like Robert E. Lee preparing for the the battle at Gettysburg -- they expect to win, of course, but they're going to be surprised (I think)." That may be true for the awful gloaters he heard from. It is not, however, my sense of the view of more respectable and serious conservative writers, as well as some liberals and pluralists, who were disturbed by his earlier post. My sense is that at least some of those, including some of the better thinkers, do not expect to win and would not be surprised if they lost. (As for the liberals and pluralists who disagreed with his "hard line" views, as well as a number of conservatives, some of them agree strongly on some or many of the positions Mark focuses on, while disagreeing with his view of what to do next and how to do it.) They may well think, however, that the map, the ground of conflict, and the order of battle has changed significantly as a result of the election campaign and outcome, and is still changing, in a way that makes it difficult to settle on any useful historical analogy as yet.
3) Readers interested in these general issues may also be interested in this op-ed by my friends Micah Schwartzman, Nelson Tebbe, and Rich Schragger in Vox (insert usual note about Vox here), arguing that while it was common before the election to hear claims that the "left" had won the culture war--I insist again that "left" is an unhelpful term in this context, not least because treating the culture wars as one of, if not the dominant, grounds of political battle itself represented a long-term shift that emphasized certain sectors of liberalism or progressivism and marginalized other ideas and constituencies who also used to be the "left," and also because, as I argued above, liberals won some of these issues by making them more liberal than left in orientation--"all that has changed" now. As the sub-headline argues, "Trump wasn't elected as a culture warrior. [But] [h]e may govern as one." I agree with some aspects of the piece and disagree with others. I will limit myself to a few observations about it. First, the two sets of writers should engage with each other, because there are obvious differences between them, which can certainly be papered over by superficial argument but shouldn't be. Second, I cannot say I find its basic point surprising, whether I agree with all its specifics or not. It seems like a pretty settled practice to me that Republican administrations, even those whose presidents are either relatively moderate on or unconcerned about culture-war issues, understand that a price of political victory is to hand over particular cabinet departments to the cultural conservative wings of their party, and thus that whatever the president's own views are, cultural conservatives are going to get to enjoy particular fiefdoms within the executive branch. Unsurprisingly, it is also true that for Democratic presidents, including those who are relatively moderate or unconcerned about culture-war issues, it is generally understood that the cultural-progressive wing of the party is going to be handed particular cabinet departments and advance views that may be further left than those of the president. That practice is both a matter of custom and a necessary element of marshaling and satisfying political coalitions within a single party. Presidents win elections and "lead" administrations, but not without settling accounts with and giving plums to key party constituencies. Thus it is that, at least for people who oppose that president, it is a frequent complaint that the president is governing further "left" or further "right" in his or her administration than the campaign or the president's own statements and inclinations suggested. No surprise here. Third, it seems silly to rake the president-elect for having no good answer to the debating-society question how one can pledge to nominate judges who will treat some cases as "settled" while also vowing to overrule other decisions that are arguably equally well settled. On that question, they could profitably read Mark's post--or a century of legal academic writing in general, or the countless decisions of countless judges. Finally, and regardless of which issues I agree with them on and which I disagree with them on, I'm glad that the op-ed focuses on political and civic action, local as well as national, rather than on Justices or judges.
UPDATE: As evidence that if there has been any "walking back" or, to put it less combatively, clarification, it actually occurred much earlier and not just post-election, a post by Mark has been pointed out to me--one that I should have remembered, so my apologies--that he put up shortly after the initial "defensive crouch" post. It can also be used to argue, against what I assert above, that Mark has been clearer about the possibility of accommodation on the blog itself, and in a context closely related to the initial post, if not in the initial post itself. On the other hand, I should note that the subsequent post--which is titled "What Does 'Taking a Hard Line' Mean?"--also lends evidentiary support to the argument I make here, that it is fair to read the main reaction to the initial post, and more tendentiously the main point of the post itself, as having to do with the "hard line" argument and not the "culture wars are over" argument. (The latter argument is tendentious because Mark, in the post, calls this "one parenthetical comment." Again, one will have to judge for oneself, by reading the original post, whether one believes the "hard line" argument was parenthetical or central to the post.)
Saturday, November 19, 2016
Another View of Hamilton's "Politics"
Dan Filler has an interesting take on the Pence-Hamilton pseudo-event (in Boorstin's terms). He notes a debate among "progressives," a term that still begs for definition and certainly does not necessarily mean leftists, about whether the actors' action was strategically wise or not. And he argues that we should treat "Hamilton as a piece of explicitly political art, not an anodyne feel-good musical about a founding father." I note that there need be no conflict or contradiction between the two, and I doubt there actually is in the case of the Hamilton musical.
Perhaps I am too mired these days in my interest in social class, in the frequent cluelessness of my own class (I mean that generally, not about Dan, and I mean it at least as much about myself), and in what I will, with some deliberate provocation, call the "actual" left as opposed to liberals and progressives. But I had a somewhat different take on the politics of Hamilton and of this episode. (As a purely practical political matter, I think Jack Shafer is probably wiser than both of us in this case.) I shared it on Facebook, not here, because one can be slightly freer on Facebook and because law professors, for bad reasons and with bad consequences, are always fascinated with other law professors' politics and eager to make shallow assumptions about them, of the "supports X so must be liberal, supports Y so must be conservative; therefore a wonderful/terrible person" variety. (We are not always subtle thinkers, especially about politics.) Clearly it was wiser to post it there than here. But what I wrote fits so nicely as a counterpoint to Dan's post that I cannot resist posting it here as well, with a few of the expletives deleted:
Now that I've read the actual statement [made by the actors], it doesn't seem like a big deal. Of course the "we" is contestable, but almost every invocation of "we" in the American context is a rhetorical and political statement that involves contestable definitions, identifications, and usually inclusions and exclusions. People may agree or disagree with particular such assertions but should always understand them as political and not statements of fact. There is a broader question whether we should care what paid performers have to say, any more than I'm especially interested in my barista's view on agricultural policy. But except for the possibility [I would say here, the certainty] that caring too much about what celebrity performers have to say is a sign of a weak democracy and politics, I don't object to actors and singers and baristas having opinions. Even if I did, there's not much I can do about it.
Then there's the broad question whether we should be concerned about the politicization of the consumer marketplace, of which theatrical enterprises are one sector, just as Wal-Marts are another. But expressive businesses, like theaters and wedding photography businesses, are often involved in politically significant expression and should be able to use or not use their voices accordingly. Plus, this was a seemingly unusual and good opportunity.
What I find slightly more interesting and, given what I know about the political self-satisfaction of the class of people that can afford tickets to Hamilton, less likely to be noted outside of actual left or right circles, is what the decision to speak once necessarily implies about all the decisions not to speak. Every day, especially given both ticket prices and the nature of its audience and cultural appeal, Hamilton plays to an audience of neoliberals, militarists, wielders of economic power, beneficiaries of massive corporate corruption and economic and political inequality, people who exploit connections in a relatively closed circle of the rich and powerful, etc. And those are just the nights when Hillary Clinton catches the show! A substantial part of its consumer base and business model is brokers, corporate lawyers, legacy admits to the Ivy League, executives, managers, investors, media elites, and so on. Its audience base is people who can afford to complain about the help, or praise their nannies (who they may or may not pay well or legally), not the nannies themselves. No doubt the regular audience could do with a pointed extra-script lecture or two as well! But that would be bad for business, and disturb the audience-validating, as opposed to audience-challenging, function that is the essence of musical theater. None of this yet reaches Hamilton Inc.'s cozy relationship to President Obama, and the mutual benefits and ego-stroking that were involved in it. Maybe the PBS documentary cut this part out, but I don't recall the actors at the White House performance of Hamilton breaking script to say, "Mr. President, we, sir--we--can't help but notice that you have raided and deported the hell out of undocumented immigrants in record numbers. Also, what the [deleted] is up with the drones, or Syria, or...." I suppose that actually would have been seen as rude in people's eyes. But once you start picking and choosing your exceptions and special occasions, of course you are making a political statement, conscious or not, about all the morally complicit and dubious audiences you are happy to flatter, the number of questionable actions--deportations, assassinations, killings, etc.--you are willing to "normalize," and so on.
Again, I think the actual remarks to Pence were far from harassing or rude, and he belongs to what I expect to be an unusually awful and dangerous administration, and so it's not a big deal for me. It runs mildly against the usual protocol of respecting the office and generally being nice to guests, but the remarks were mild and polite. But Hamilton itself should be understood as being closer to a fundamentally conservative bourgeois enterprise and not to some actual left or even especially vigorous progressive endeavor, except by those who are bemused and bedazzled by identity politics. If it were otherwise, it wouldn't be such a big hit in the first place.
Friday, November 18, 2016
What Next?--Part II: Avenues of and (Mostly) Revivals in Legal Scholarship
This post on "what to do" in response to the election of Donald Trump is long but shorter than my last. It involves more easily attainable and less disruptive action, but also has little if anything to do with real-world impact. I ask here what I would like to see in the next few years by way of responsive legal scholarship that is more or less in my field.* I'll dispense with the easy stuff first and relatively quickly, then add a few suggestions about what I would like to see, and one more suggestion about what one might see. Either direction would be interesting in its own way.
It is obvious and therefore uninteresting that one may expect an uptick of interest in separation of powers and federalism. A couple of conservative legal scholars have idly wondered, on blogs and listservs, whether their calls during the last eight (or eight-plus) years for limits on presidential power, and their interest in a vigorous separation of powers and federalism, will get more respect now that the shoe is on the other foot in a rather dramatic way. My prediction on that point is somewhat depressing and perhaps too cynical. I certainly think there will be an increased interest in these positions. But I doubt somewhat that mainstream liberal law professors will draw heavily on the work of conservative legal scholars who have made even relevant and helpful arguments along these lines. I think they are more likely to draw on the existing conservative literature a little, but much less than one might expect. Instead, they will adopt a mix of the following: invoke work from past eras when progressives favored such measures; write pieces advocating separation of powers, a more restrained or constrained executive, and federalism on the basis of their own existing work and methodology, drawing on the strands that would advance the Trump-resisting project, even if and when the bulk of their conclusions in that past work runs in the other direction; give more attention and more favorable and extensive treatment to federalism- or separation-of-power-favoring liberal scholars, like Heather Gerken, than they may have up until now; and, per the usual methods of many legal scholars, treat whatever they are writing in this new political direction as "novel" or the "first" to advocate this or that, sometimes because it really is novel but more often out of genuine and/or phony amnesia. As I say, all this may be too cynical. But I do expect existing arguments from legal conservatives along lines that might restrain Trump to get less attention than one might expect. Citation and prestige networks will remain more or less as much (or as little) of a closed loop as they always are.
I wrote here a while back, before the election, wondering whether a Trump election might presage a revolt within the civil service. I also touched on it yesterday in my post, in which I suggested that one possible response of law professors in light of the election would be to go to work as government lawyers and civil servants in the Trump administration. I do think the ground-level mechanics and sociology of the civil service, and modes of bureaucratic entrenchment and resistance to the chief executive, overt and covert, will become a growing topic of interest, which is a good thing. (One hopes people will also write about the potential long-term consequences of such a model.) In addition to the couple of things I linked to in my earlier post, check out this online piece, rather confirmatory of my general prediction, by Jennifer Nou in the Yale Journal of Regulation blog, on "Bureaucratic Resistance From Below."
A pivot between the more and less obvious things I would like to see in legal scholarship over the next few years is the possibility of a more widespread interest in things like legal pluralism, mediating institutions, and subsidiarity. That is good news for those whose excellent books on First Amendment Institutions would make a superb Thanksgiving or Christmas present. I cannot say I would have predicted this on my own. But when The New Yorker--the New Yorker! home of generalized cosmopolitanism and attachment to centralized government!--suddenly expresses a post-election interest in Charles Taylor and specifically in subsidiarity, muses that subsidiarity could help us "get a grip on our political selves, and be less inclined toward nihilism on the national scale," and titles the piece "How to Restore Your Faith in Democracy," one gets the hint that something is up. I don't want to overstate this prediction. Based on what I have seen of about half of the current political commentary, it is just as likely that scholars of a political hue will simply argue more forcefully--and more successfully this time, or so they will swear--for more of the same. But I do think there will be some increased interest in things like legal pluralism and subsidiarity, in quarters that have in recent times been somewhere between uninterested in and forcefully opposed to these ideas.
Let me suggest three other topics or approaches I would like to see more of in the next couple of years. They're all offered sincerely enough, but since I'm interested in and working on all three things and have been for some time, my vision may be distorted by my own preferences. I deal with them after the jump, so here's a list: 1) Critical Legal Studies; 2) Robert Cover's "Justice Accused" book; and 3) social class. I'll wrap up with the possibility that, instead of any of that, mainstream legal scholars will either stick with the same-old same-old or, more strikingly, return to the conventional views of earlier and seemingly superseded generations of scholarship.
The first possibility I'm interested in is a revival of interest in Critical Legal Studies. To the extent that that school was viewed as an organizing mechanism for thinking about resistance to a conservative (or "Liberal") status quo and saw the left (as opposed to mere liberals or "progressives") as operating from a minority position against the prevailing tide, it would be a natural time for more people to pick up an interest in it again. To the extent that the election causes a few liberals to focus more on class issues, on the legitimating effects of the current system, and on the degree to which establishment liberalism, including establishment liberal legal scholarship, partakes of these problems and structures, again this would be a natural school to focus on and revive.
Since most legal academics are establishment liberals, one shouldn't overstate the degree to which they will suddenly become interested in formerly-outre left theory. I think they should be interested in it. I have seen a fair amount of recent liberal legal scholarship that really does seem to recapitulate, in its unthinking doctrinairism and unquestioning use of contestable premises, everything the Crits wrote about and against, while operating at a fairly high level of either bad faith and denial, or amnesia. I think CLS scholarship and thinking would be worth reviving even if--perhaps especially if--the establishment liberal had won. A CLS revival certainly wouldn't have happened in that event. But at least a little revivalism is more likely now. (I'm currently working on--and tragically behind on--a piece about CLS, although it has a somewhat different focus.)
The second, more specific item is a renewal of interest in Robert Cover's classic book Justice Accused: Antislavery and the Judicial Process. That book, which asks what a judge should do "when he must hand down a ruling based on a law that he considers unjust or oppressive," will be or seem to be of renewed interest under the current regime. And the questions it asks will be of particular interest not with respect to judges, but with respect to the mid- and lower-level government officials and civil servants I mentioned earlier. (Cover's book is of interest to me because of a long-term project on oaths and the Constitution. It remains decidedly long-term as a project. But one might expect increased interest in that general topic as well.)
Finally, it would be nice to see an increased interest, within legal scholarship, in social class. (Final self-serving note: I'm under contract and working on a book--and, again, woefully behind on it--about social class and the American legal academy.) Certainly that topic came up, in various ways (including self-critical ones), in the Crit literature. And the ClassCrits remain interested in it, although I don't sense that they currently have a huge audience. And both the facts on the ground in the past decade and the popularity of the Piketty book have caused an uptick of interest among legal scholars about economic inequality. But that interest doesn't necessarily translate into an interest in social class as such. (A recent symposium issue of the Texas Law Review, some of which is directly about class but much of which is not, is illustrative of this point, I think.) I know a couple of rising and established legal scholars are interested specifically in social class and the law. Given one of the possible lessons of the election for members of the establishment or elite, I expect and hope that this topic will become more popular. One might well start with a recent commentary by law professor Joan Williams, who to her credit has been working on these questions for a long time.
I suggested above that mainstream, establishment legal liberals might not take a sudden interest in the Crits, and wrote that liberal "scholars of a political hue" may simply follow a substantial number of their establishment confreres in politics and political commentary and "simply argue more forcefully...for more of the same," a prospect nicely captured here. So one possibility is that nothing much will change by way of thinking, scholarly agenda, methodology, or jurisprudence among the legal liberal mainstream, elite or otherwise, although naturally some of the current issues will change. From a political and--perhaps more important for many legal academics, if less openly acknowledged--a professional standpoint, that may turn out to be perfectly sensible, even if I personally think it would be unfortunate.
Another, more intriguing, possibility is that liberal legal scholars will instead turn to arguments and approaches from the past--arguments and approaches that in many cases have been superseded, or criticized in the intervening decades, to the extent of being pronounced dead. Much of that will depend on the precise state of play of the federal judiciary. But maybe we will see everyone suddenly writing straight doctrinal work (or more straight doctrinal work, since there has already been an uptick in doctrinalism), or invoking and acting as latter-day followers of Bickel, Wechsler, or Ely. The uncertainties of the 1970s brought us Happy Days. The current situation may bring us a revival of the Greatest Hits of Past Liberal Legal Scholarship. If this happens, it would be especially interesting if scholars writing in this re-mined vein do so un-self-consciously and as if the critiques of the past few decades didn't exist. But even if they are more self-aware than that, as times change we will inevitably end up recapitulating whole earlier histories of argument, thrust, and counter-thrust, although faster and perhaps more farcically.
* I deal mostly with general constitutional law and theory here. I don't address my own sub-field of law and religion. I have some ideas of what might happen here, but not much. Per my post yesterday, my answer on that question is "I don't know yet."
Thursday, November 17, 2016
What Next?—Part I: Action—Some Options for (Former?) Law Professors
Orly’s post below asks, “How are you changing your scholarship, teaching, and service in light of the election?” It is a potentially interesting question and something many of us have been musing about for some time. Here are some thoughts about options for law professors in response to and in light of the election. In a separate post I’ll talk about what I would be interested in seeing in legal scholarship itself post-election.
As usual, this post is long. (It’s a big question! It demands either a long answer or a really good short one—and I doubt I’m capable of the latter.) I move back and forth to some degree below between taking as a given the assumption that Trump represents a serious threat to “X,” where X represents the rule of law, the welfare of particular vulnerable constituencies, the survival of the United States, and so on, and remaining agnostic on those questions. It seems obvious that answers to the “what next” question depend in part on one’s view on those questions, and on one’s view of both the degree of harm potentially involved and the probability that these harms will occur. One may remain agnostic about some of those questions but still decide to change one’s approach radically, if one believes that the risk of harm may be low but that the harms that might eventuate are immense and difficult to repair. For the most part, I ask about scholarship and teaching in the long run, and less about immediate pedagogical reactions in class to students in the immediate wake of the election, although that aspect of “what next” figures in some of my analysis.*
Two potential responses on the scholarly front to the question “what will you change” may not be voiced by as many people, even if many people share these answers, although they do come up in the comments to Orly’s post. The first is: “Not much, if anything at all.” Like other academics, legal academics work in particular silos and on particular subject matters. I would not expect astronomers’ scholarship to change in light of the election. Law—all law—is a more political enterprise than astronomy under present conditions, or so I assume. But one might write in a legal field or on a topic within that field that one anticipates will not change. A contract law scholar might well have this answer. I leave open the possibility that one may find, or look for, ways in which this subject might provide tools for resistance, reveal underlying structures that support or reify a class or economic structure that makes the current situation possible, and so on. Even if that is possible, one assumes both that some people have particular scholarly interests in such a field that are distant from such concerns, and that others might agree that these questions are valuable but doubt their own ability to contribute much to such work.
A second response is “I don’t know yet.” Again, surely many people would agree with such an answer, even in fields that are very much likely to be affected by the election, but they are likely to be less vocal than those who believe they already know what needs to be done in their field. But even if one has a timeline shorter than Zhou Enlai’s, one may believe it’s simply too soon to tell.
There is a third, important or consequential answer that is possible. It is relevant both to those whose subject areas are likely to be affected by the election and to those whose subjects are unlikely to be affected by it. The answer, in short, is “I’m going to quit, or take a leave from, law teaching.” And one possible thing to do upon quitting is to join the Trump administration, while another is to not do law at all. I explore the reasons why one might quit, and the kind of work one might take on, after the jump.
So: Let’s say that you believe strongly in Trump’s threat to “X,” and either disagree with or for other reasons want to resist any urge to “normalize” his election. Let’s further assume that you believe that in such circumstances, you have a moral and/or professional duty to act accordingly. Set aside, for purposes of discussion, the possibility of leaving the country, although if you believe in the “X risk” that surely is a possible and perhaps a wise response. But you intend to stay and act. For such people, leaving the legal academy, temporarily or permanently, seems like a perfectly logical response and should at least be considered. And in considering it, one should be wary of a perfectly natural and human tendency to rationalize away the reasons to disrupt one’s own life to that degree.
Why leave law teaching? If you believe strongly that there is a high risk of X and that you are obliged to act in response to it, you still have to ask how to act. And there is no reason to assume that the best way to act, the most valuable response you can offer, is in your current job. It might be. But that’s hardly pre-determined. In particular, you are (or, these days, may be) a lawyer as well as a law professor. If you believe action is necessary and that this action includes legal work, you might examine your options and conclude that you can do more important “resistance” work as a lawyer than you can as a legal academic. Maybe you will write some piece that really changes things, or effectively teach resistance strategies to a large number of students, a sufficient number of whom will use those strategies. But maybe you won’t. You almost certainly won’t accomplish the first, and the second is at least uncertain.
On the other side, you might be able to perform concrete legal work for potential victims of the new regime that will make a concrete difference in their lives. It could take a variety of forms: immigration work, criminal defense, estate or small-business planning, real estate, employment law, health law, benefits appeals, or even constitutional litigation. In any of these areas, you might be better able to effect necessary (perhaps urgently necessary) change than you can in your current job as a law professor. Resistance movements or revolutions may require house intellectuals (although they needn’t serve in the academy). But they don’t require a lot of them, and you might do more concrete good as a foot-soldier practitioner than by trying to be one of those house intellectuals. So: Just do it. Quit—or take a leave of absence, if you feel more comfortable with that—and be a foot-soldier practitioner. (A very small number of law professors are elites and unusually qualified and skilled in both practice and the academy. Maybe they would not end up as “foot soldiers,” but as generals. They, too, will have to weigh doing elite work in the academy against doing full-time elite work as a “general” in practice, and may reasonably conclude that they will do more good as the latter.)
One counter-consideration is that an increasing number of law professors have limited practice experience and that many of them have a highly academic set of skills and experience, including doctoral work in some non-legal field. This is a common complaint of critics of the legal academy, both internal and external, of course. Wherever one comes out on the normative question, there is much descriptive accuracy to it. Maybe the comparative advantage calculus will be different for these people. But the benefits to others may still favor quitting even for these individuals, at least assuming they have a JD and either belong to a bar or are eligible to join it. Others might benefit more from a competent but inexperienced lawyer, doing small things, than an expert legal historian or lawyer-sociologist dreaming of big things.
If you decide you can do more good in response to the election outside the legal academy than inside it, where would you do most good? Let me mention three possibilities, leaving aside the rare answer of being a “general.” One is, as I mentioned, as a foot-soldier: an individual lawyer handling “basic” concerns, like helping immigrants on immigration or benefits matters. You might not teach in that area or have significant practice experience in it, but you could learn, and do some concrete good for specific individuals and communities along the way. There’s no glamor or celebrity in it, but neither was there in being a member of the infantry in World War II, and we needed more infantrymen than generals, or logisticians back in Washington.
Two other options seem more intriguing and less likely to have been considered by as many people. The first is: Go to work for the Trump administration. Or, more accurately, go to work as a civil servant, whether as a lawyer or not. Again, I’m thinking of the basic bureaucrat-civil servant level rather than some fancy position. (If you don’t want to “normalize” the election, you might prefer to work at a “low” level rather than a high level.)
You might have two reasons for doing so. First, the government needs lawyers and other symbolic analysts who will loyally uphold the rule of law, follow norms of care and reason rather than arbitrary or punitive action, act consistently with and not against the Constitution and laws, etc. If you worry about this regime being lawless, you can do some good for others by being a loyal and lawful civil servant. A dinosaur has a small head and smaller brain and a big body, and messages from the head to the body take a while to get there. Even if the chief executive is dangerous, or dangerously small-brained, a lot of routine but, to its subjects, important work will continue to be done and need to be done, and a lot of it can take place before or despite whatever messages are being conveyed to the “body” of government from its head.
Second, you might go into government specifically to resist or subvert the new president. You could do all sorts of things in this capacity: insist on the letter of the law being followed where its spirit is dangerous, and vice versa; “work to rule” where some new governmental policy ought to be slowed or resisted; leak to the press; insist on obedience to the Constitution where you think your orders compel you to violate it; and generally be a spanner in the works or a body slowing the machine. You might, in short, turn the executive branch into a vehicle for resistance to the chief executive. You might do both: work loyally and well insofar as your job allows you to serve and protect others, and act subversively insofar as orders from the top are pushing you to do otherwise.
A third job/response possibility is that the most important work you might do—more important than whatever you might accomplish as either a law professor or a lawyer—might be civic or activist work of an entirely different kind. I’ve argued here and elsewhere that there are systemic dangers to law professors and other academics tending to prefer to speak and act as “experts” rather than as plain citizens. It reinforces the sense of a status-seeking elite or of rule by technocrats, resistance to which was one factor in the election outcome; and it de-emphasizes the importance of general, mass civic action in one’s capacity as a citizen. Maybe you would do the most good, in response to the election and the risk of “X,” in your civic capacity than as either a legal academic or a lawyer. The civil rights movement needed lawyers, leaders, and planners, but it also needed bodies on the line. To call them “foot soldiers” deprives them of the dignity and importance of their efforts. But it’s still the case that any such movement needs a lot of people to follow orders, to march and/or be jailed, to storm the barricades, and so on. It needs citizens acting for civil rights by putting their bodies on the line, perhaps more than it needs “Historians for Civil Rights” or even a twenty-first or twenty-second civil rights lawyer.
You needn’t quit your job to do such work. But to the extent that you believe “X” demands action, you might believe the risk of “X” is so great that it demands full-time action, or that it needs more bodies in Montana, or south Texas, rather than Manhattan or Austin. There are at least reasons to consider the possibility that the best response is for you to become a full-time activist, or to take a job of whatever sort so you can pursue activism somewhere other than where you currently live and teach. It might also be the case that you would be too busy as a law professor, despite the luxuries of time the job generally permits, to pursue activism to the extent you believe is necessary given the urgency and importance of the threat of “X.”
You could decide, instead, to keep your job but devote more time to your activism and much less time to your official work as a professor and scholar: you could stop doing scholarship for a few years and phone it in as a teacher in order to devote more time to civic activism. Perhaps the circumstances justify it, although I’m not sure why keeping your academic job is necessarily a relevant “circumstance.” On the other hand, plenty of people want jobs as legal academics, and some of them might be better qualified than you—either in general, or better qualified to do good for the cause as law professors than you are. And tenure is not, or isn’t supposed to be, a sinecure. It’s an academic protection, not a form of job security for its own sake or a highly paid place to be a journalist, or op-ed writer, or mountain biker, while barely doing your actual work. If you are going to spend most of your time as an activist, whether in a legal capacity or not, maybe you have a moral and professional duty to give up your berth in the academy to do so. Michelle Alexander, to her everlasting credit, gave up her tenure as a law professor because she believed she could do more good elsewhere, and/or that it was more appropriate for her to give up her position for someone else if she was essentially going to pursue work as something other than a “law professor.” And that was before the election. If the election and the regime it brings to power is indeed “non-normal” and the times demand urgent and unusual action, you might decide that your work is most needed elsewhere than in the legal academy, and that under those circumstances it is also right for you to surrender your coveted spot there to someone else.
I am not urging people to do any of this. I am suggesting that to the extent that the election was non-normal and the risk of “X” is great, not every response to it needs to be undertaken as a law professor. What you personally would like to do is, from this perspective, less important than your carefully, logically considering what needs to be done. If you run that analysis, you might conclude that you would do the most good for the most (or most vulnerable) people not as a law professor, but as a lawyer, a civil servant, or in a purely civic capacity as an activist. Maybe not! Maybe you can do the most good in response to the election by continuing in your present job, with or without changing (or chancing much) what you do on a day-to-day basis. But if you accept the operating premises I have used here, you cannot simply assume this to be the case. And in considering your options, you should avoid the tendency—again, a perfectly natural human tendency—to rationalize yourself into the conclusion that other than changing your syllabus, or picking up a new course, or doing more work on the side as a lawyer or citizen-activist, nothing really needs to change for you.
Although nothing here says any of this, I know how some people are likely to read, or read into, this post, and so I suppose it’s worth adding some denials or clarifications. I understand that few people are likely to actually take up any of these suggestions. In some cases it will be because they conclude that they can be of the most good in their current jobs—although, again, I think there is reason to second-guess such a conclusion and be wary of rationalization. People might therefore conclude that law professors who don’t do anything different, or who really only change little things rather than taking big and bold steps, are hypocrites. I’m not suggesting that. For one thing, I think accusations of hypocrisy are generally made too lightly and quickly and are a conversational dead end. For another, because most people live with and in all kinds of inconsistencies, I don’t consider such charges either especially devastating or especially interesting. In any event, my goal here is neither to set up such an accusation nor even to challenge people to take the possible steps I’ve outlined above. I simply want to offer an analysis of the options available to law teachers who sincerely believe that something needs to change in their work in response to the election, and who believe it for civic reasons and not just because they think the election poses some new questions of largely intellectual interest.
Another conclusion people might draw from law professors doing only a little in response to the election—changing their syllabus and so on—rather than acting more boldly is that these individuals really are normalizing the election, or believe the risk of “X” is smaller than their more urgent rhetoric suggests, or something like that. That may well be true for some law professors. It is surely true for at least some of them. But I would not make that a general assumption. Law professors, like everyone else, are capable of inconsistency, imperfection, devotion to considerations—family and job considerations, financial considerations, and so on—other than the needs of others, etc. Maybe academics are more prone to these tendencies, given the comfortable and enviable nature of their jobs and the relative contentment and inertia of the managerial-professional class; I don’t know. But nothing about such tendencies is unique to them. They may sincerely believe in the importance and urgency of the situation, even if they do relatively little about it. Again, my goal here is only to explore calmly some of the broader options and implications of the basic question of what law professors ought to do in light of the election.
* Well, it was supposed to, anyway, but I didn't get around to it, so I'm adding it here. One option, or response to the options presented here, would be to envision one's primary response as offering support, sympathy, and guidance for students who are upset about the election result as such (perhaps a more academically questionable function, although I don't think sympathy, about a variety of issues, is out of place as a general function for teachers), have been made the subject of hateful and threatening remarks (easily within any teacher's purview, I think), and feel that they or their loved ones or communities are vulnerable. One can certainly understand this as a response, without any foreknowledge about whether this reaction will be indefinite or short-term and ease or increase with time. But it is not clear that it is sufficient as a reason to stay in the legal academy as opposed to choosing one of the other options discussed here. Going out of the academy and into other communities might give one an opportunity to offer the same comfort and sympathy to people who feel even more vulnerable, have been subjected to even worse threats and abusive language or conduct, and possess even less of an institutional or community support system. Obviously both possibilities are factors to be weighed.
Tuesday, November 08, 2016
Where to Riot: A Modest Proposal
As a non-citizen, I will, alas, not vote today. (I am in the process of applying for American citizenship, and the election is one but only one of the reasons why I am finally getting off my duff and applying. Another reason is that I teach con law, and am tired of introducing the Constitution by talking about "You the People.") In this election in particular, I have felt a mix of seriousness about and frustration with both the election and the state of discussion (or "discourse," to maintain my academic credentials) around and about it. I also take the view, which is a personal view and one that I do not insist applies to everyone, that following the moment-to-moment headlines, commentary, and pseudo-news on days like this does not necessarily demonstrate or indicate a commitment to politics as a serious and weighty activity. To the contrary, it may have as much to do with treating politics as a fairly weightless leisure activity or, in Stephen Carter's words, "[politics] as a hobby." (Others, in fairness, will spend the day engaged in more meaningful and direct political activity, such as going door-to-door or driving poorer voters to the polls, although they will be vastly outweighed by the hobbyists.) I will therefore spend much of the day avoiding television and social media. Instead, I will sit quietly and read Virgil--I have been spending the election season, which was coincident with recovering from surgery, reading classical literature--and Duncan Kennedy.
I do want to make one modest proposal, however, before the returns are in and before we know what will happen on the streets in response to the election. There has been much discussion and speculation--some serious and sincere, some frivolous, and probably some that is both--about whether one outcome or the other, or the absence of a definite outcome tonight, will lead to rioting. A while back, for instance, Sandy Levinson mused about possible "(justified) rioting in the streets" if Trump wins by a close vote. And there has been general discussion about the possibility of riots by the "alt-right" or populist supporters of Trump if Clinton wins. I don't welcome the prospect of rioting in either case. (Others are, perhaps, more ambivalent about it.) But I won't discuss the "will they (we)/won't they (we)" or "should they (we)/shouldn't they (we)" questions here. I address a more practical question: Where should one riot?
My modest suggestion is that any group deciding to riot, or encourage and organize rioting, should reject the usual rioting sites: general central gathering places, the downtown or business districts, or--worst of all--the most underprivileged and vulnerable neighborhoods, which are often where rioting occurs. Instead, if people riot--which, again, I hope they don't--they should riot in the residential neighborhoods of what we might broadly call the elites or the upper middle class.
I am perhaps less concerned with rioting in downtown or business districts as such, insofar as they are more likely to lead to property damage to insured businesses than to more "personal" damage. (I am not here making the argument, popular in some circles, that violence directed against property is not "real" violence.) On the other hand, the idea of targeting these areas tends to rely on a stereotyped vision of some idealized place that consists of nothing but the headquarters of banks, brokerage houses, and multinational corporations. Perhaps that's realistic in a few places, thus suggesting among other things the tendency of the popular imagination to view all places as cities, and all cities as large cities--and, at that, all large cities as basically four or five of the largest cities, those most likely to draw a narrow class of individuals. My downtown/business district has some local branches of banks and a couple of Starbucks. But it also contains a lot of small businesses, run by individuals whose lives and resources (and those of their employees) are closely tied to making a living through those businesses. Damage to those businesses is real damage to the well-being of workers and other individuals on the ground. Even the "name-brand" consumer businesses in my downtown are more likely to be franchises owned by fairly "regular" individuals, some of them recent immigrant families. As for the more idealized version of rioting as a kind of Fight Club scenario aimed at gargantuan consumer businesses and safely empty corporate buildings, I see little evidence that it has been effective in the past, and I question whether it is especially well-aimed. In its standard-cultural-tropeness, it also may come closer to the "hobby" model of radical political action than to a serious commitment to politics, radical or otherwise.
As for rioting in the neighborhoods of the poor and disadvantaged, a tendency that may be exacerbated by residential segregation by class and race and a lack of transportation resources, it seems really poorly aimed. And its potential harm is great, striking as it does at the homes and businesses of those who are least likely to be fully protected by insurance, who live and work in these neighborhoods and can least afford damage to them, and who depend on local businesses for food and other staples. Some of these neighborhoods are still recovering from, or will never fully recover from, riots that occurred in those areas decades ago.
In various ways, both on the left and the right and--at least in an abstract and perhaps not deeply felt (or, in a bad-faith way, actively denied) way, in the liberal and maybe the conservative center--many people believe that the causes of the current election and its discontents, and the causes of the discontents that led to the current election, can be laid at the feet of those people who have the most actual control over and power in the current political, economic, and cultural system. That doesn't just mean the 1 or 2 percent, the Kochs and Soroses. (In any event, they are most likely to be fully insulated in their homes and neighborhoods by public or private security forces and by geographical isolation.) It means something like the top ten or twenty percent of income-earners in the country. It comprises those individuals most likely to have effective political representation; to be contributors to, workers in, or complicit in big-money politics and the party establishments; to work as professionals in those institutions that reinforce or reify the current system, among which I would include the academy; and to be most effectively insulated from the costs and harms of that system and its unequal allocation of power and representation. Insofar as one might want to "bring the war home" to those who are most responsible for the current state of affairs, to force the relevant individuals and institutions to internalize the full consequences of a system whose benefits they richly enjoy and whose costs they effectively externalize, and to make more urgent the need to restructure a system that draws dissatisfaction and anger on the part of the dispossessed, those on the left and right and at least some in the center ought to consider the value, if there are riots, of literally bringing those costs "home" to the class that bears the most responsibility for an ineffective, gridlocked, more or less oligarchical and/or elite-favoring system.
If that's right, then people planning to riot or organize riots might start their planning work by looking at the many websites that provide a look at individual zip codes by household income and other socio-economic factors. The median household income in the United States in 2014 was $51,939. National averages are problematic because of variance by state and locality, but according to this measure the top 20 percent in the United States has a household income beginning at $111,000; higher up the steep curve at the top end of the distribution, the average household income of the top 10 percent begins at $155,000. I would go with the top 20 percent, but I acknowledge that there is room for debate. Whatever your starting point, if you're going to riot, or organizing a riot, or more or less gently excuse or welcome such rioting, why not start with those neighborhoods? Isn't it better and more politically relevant and responsible to riot in Park Slope, or Hancock Park or the west side of LA, or Mountain Brook in Birmingham, or Walnut Creek in the Berkeley area, or Hyde Park in Austin, or in my downtown historical district or the "north of the river" area in Tuscaloosa, than in some neighborhood whose residents are least likely to either be responsible for the current power structure or able to handle the costs of the rioting?
Social media provide a positive benefit here. They make this kind of organization more possible, and also facilitate a kind of shared civic involvement in this radical direct action. Let's say you consider such rioting "justified." One could use social media generally, or institutions like the hashtag, or sites like change.org and other popular petition-gathering and organizing sites, to start a movement in which you acknowledge your privilege, and your complicity in and the advantages that you receive from an unjust political structure, and invite rioters to start with your high-income zip code. Just imagine the wonderful hashtags that you could use on Twitter in inviting the rioters to visit your neighborhood! "#PleaseRiotInMyNeighborhood," "#I'mWithThem," "#IGaveAtHome," "#ThePurgeStartsHere"; these are just a few suggestions. Users of social media are nothing if not inventive and clever about these sorts of things.
Of course there will be some regrettable inconveniences. But if you are one of the people in an affected neighborhood--and I take it that many readers of this blog, including legal academics generally, will be in that class, both by virtue of the individual income of the legal academic and the likelihood that he or she is in a dual-professional-income household--you should be better able to deal with those inconveniences than others. It is easy enough to keep one's children in a safe place; they probably already enjoy disproportionate educational and other institutional advantages over others, and you probably already read to them and engage in other forms of close parental involvement in education, so they can most easily afford some time off from school; and you are probably well-protected by insurance. (In some cases, you could also retreat to a vacation home or second home.) And surely you can bear any harms more easily than genuine small-business owners whose resources are all tied up in their business--and much more easily than those who live in poor and disadvantaged areas.
It's just a modest proposal, to be sure. And, of course, there may be few or no riots. Certainly I hope that is the case, whether the riots are "justified" or not. Still, it makes a lot of logical, political, and moral sense to me.
And with that, I return to Virgil and Duncan Kennedy and wish everyone well on this election day.
Friday, November 04, 2016
A Word in Defense of "Ballot Selfie" Laws
I appreciate Andrea's post below about so-called "ballot selfies" and laws restricting them, or more specifically restricting the sharing of photographs of completed ballots. She argues that ballot selfie bans are likely to be both ineffective and unconstitutional. Her arguments on the first point seem reasonable, and as a civil libertarian I am sympathetic to her second point. (Although I think that, despite significant domestication efforts by the courts, it still makes some sense to think of at least some elements of election law as being their own subject, with their own history and vagaries, and not as wholly a creature or subset of First Amendment law. For discussion and citations on the general topic, see, for example, this article by Heather Gerken.) So I am not disagreeing with her conclusion. But I would like to say a word, if not in defense of the bans or of a particular outcome, then in favor of the proposition that there are genuine concerns about photographing and sharing completed ballots: that they are not merely a matter of ancient history, but are of continuing relevance.
This requires some background about the University of Alabama and local Tuscaloosa politics. A problem of long standing here is the existence of "the Machine," an underground or secret society that in effect serves as a coalition and coordinator of some of the older (and, yes, extremely whiter) fraternities and sororities on campus. The Greek life is a big deal on campus here, although last time I checked the numbers it involves only about a third of the students here, and only some of those students belong to Machine houses. Simply because they are coordinated, however, the Machine and its member houses exert an outsized influence on on-campus life and politics. It is all too rare that "independent" candidates for student government leadership, including African-American candidates, can win against the Machine's chosen candidate, although it sometimes happens, including recently. Aside from general tendencies toward bloc voting, various forms of social coercion, and general dirty tricks, one of the ways the Machine enforces its choice of nominee among its members has been the insistence that members of Machine houses show how they voted. Various methods have been employed by the university to cut down on this. But the demand that member students demonstrate that they voted for the Machine candidate has been a major part of its dominance over campus politics. Reforms are ongoing, and they include making clear that no student or student group can demand to see how any individual student voted.
Unsurprisingly, especially given the general low vote turnout in local elections, enterprising local politicians have realized they can leverage this vote, by attempting to convince the Machine to support some local municipal candidate and order its member students to do likewise. Turning to interest groups or affinity groups for political support is nothing new or unusual, or even wrong in itself--although one may condemn particular means of doing so, such as the use of "walking around money," the role of "politiqueras" in South Texas Democratic politics, and other methods, and one may feel still worse about any local politician attempting to win the support of a student group, like the Machine and the houses that belong to it, that has been complicit in decades of racial segregation. And the means of winning that support can be fairly innocent, like relying on common acquaintances and backgrounds or handing out campaign T-shirts; or they can be more insidious and corrupt, such as funneling money to the Machine and/or hiring Machine officials as "campaign workers," with the fairly clear if implicit bargain that the Machine rep will earn his or her money by pressuring all the members to vote for that candidate.
I know a little something about this because my wife served (and served very well, by all accounts) on the Tuscaloosa City Board of Education, and was defeated for re-election in 2013. She lost because an ambitious local candidate for the chair of the board secured the Machine vote, and did so in part by running a former Machine member as her opposition in our voting district, which features a large student population, including many of the Machine houses. I won't relitigate the issue here--it was litigated, and she ultimately lost at trial, although that second link (to the word "litigated") suggests some of the reasons the loss was problematic, such as the widespread ignoring of subpoenas to testify, misconduct that the judge let go without penalty or pursuing the matter further, and local opinion was unhappy about the result. I will simply say that one of the allegations in the case was that the Machine had pushed its students--many of whom, it turned out, were not even properly resident in the voting district, but voted there because they were pushed into doing so--to vote for its selected or bargained-for candidates, and promised such things as wristbands for admission to election-night parties and concert tickets to its members who returned to their house and showed a designated representative their "I Voted" sticker. Under the circumstances, that's all it could really do, given the secrecy of the ballot. (Why the students didn't simply stand up to the Machine and refuse to vote if they were not properly resident in the district or did not feel comfortable or informed voting on local issues, or vote for whoever they pleased in defiance of their orders, is a mystery to me.) But if the Machine's coordinators could have demanded, or had thought to demand, that the students provide a photograph of their ballot, to demonstrate that they actually voted for the candidates they were ordered to vote for, I don't doubt they would have. (Update: I am told that some students in Machine houses were in fact urged or required to do just that, although I can't verify it definitively.)
The conduct, or misconduct, that was involved in that election involved a classic suite of behaviors that are of long standing in American political history, such as the offering of things of value in exchange for votes and the funneling of money toward groups whose assigned role is to guarantee votes for a particular candidate. Some of that conduct is legal and some of it is illegal. But the general system of providing and safeguarding the integrity of elections by providing for voting by secret ballot was a response to the widespread nature of this conduct. It is very much a longstanding structural mechanism to ensure the integrity and legitimacy of the vote. Some of this history is noted in Rick Hasen's editorial arguing that ballot selfies are bad for democracy.
One may disagree with Hasen's conclusion, and I have already indicated my ambivalence given the arguable First Amendment issues at stake--although, again, I note that one should not simply and mechanically apply general First Amendment law here without noting a long set of historical practices, structural mechanisms and concerns, and somewhat sui generis, functional or institutional analysis within election law. Nor am I making any arguments about the frequency or prevalence elsewhere of the kinds of schemes that were involved in the Machine's involvement in Tuscaloosa politics, that are likely to continue until the Machine is brought above-ground or dismantled, and that certainly will continue to figure in on-campus politics here. I will simply say that our experience here suggests that the conduct that gave rise to the system of ballot secrecy in American politics has certainly not disappeared entirely. Concerns about the potential value of photos showing one's actual completed ballot in effectuating and enforcing vote-buying schemes and other efforts to interfere with genuinely independent voting are far from "purported" and should carry ongoing weight.
A few words about my university and community, since I live and work here and would like to see it do well, yet still saw fit to publicize its problems in this post. As the New York Times article linked to in the second paragraph suggests, the makeup and nature of the university has changed a lot in the last decade or two. A major part of that change has been the influx of out-of-state students, who--I hope--are finding ways to enjoy some of the university's customs and traditions (obviously, that's not a uniquely Southern or Alabama thing; most universities have them, although in the South they do love them some customs and traditions) while changing and improving them and discarding the ones that ought to be discarded, in part because they have no inherited stake in or from-the-cradle love of those traditions. Another important element of the change has come from Southern students themselves, many of whom are disgusted by some of the conduct and traditions they have seen and would like to see the student associations they belong to become genuinely racially diverse. When it is the students themselves who are so eagerly pushing for change, I do not want to perpetuate benighted assumptions about the South that are so widely popular among people who do not live here and would reject out of hand living here, instead righteously and conveniently choosing to live in a few select parts of the country where the structural mechanisms that ensure segregation and cocooning, by class if not by race (although the two are often closely linked), are so quiet, familiar, and taken for granted that they can convince themselves they are living justly and have no moral complicity in the problems with their own community. The story here, and the place itself, is more complicated than the still-conventional stereotype suggests. I would rather have people come to live here, whether as students, professionals, or academics, take advantage of all the good things it has to offer, and work to change and improve things, in part simply by being here and thus changing the culture, than living comfortably if semi-blindly in ostensibly problem-free enclaves elsewhere. And although the university as a whole has been too slow to push for change, and sometimes adults have reinforced the very systems the students have fought against, there are also many individuals and groups, on and off campus and including key members of the university faculty and administration, that have worked and continue to work to make the place what it often is and always ought to be. The Machine is an embarrassment to the university, and will be as long as it exists in its current form; and at least some of the local politicians who rely on the Machine for their votes are an embarrassment to the city. It has an outsized influence. But it is not the whole population of Tuscaloosa, which I love and where I have found a very supportive and decent community, nor is it the whole of the university itself. Still, as long as there are sorely needed changes, I'm quite willing to acknowledge and publicize them. I just wouldn't want it to be the one and only takeaway about my university and my community. All this is beside the main point, which is that there are reasons, not just "purported" reasons or rationales, to be concerned about ballot selfies. But I felt it needed saying.
Wednesday, November 02, 2016
Our Friend and Colleague, Norman Singer
Here at the University of Alabama, we are mourning the loss of our friend Norman Singer, who taught in the Law School and the anthropology department. Norman died on Monday at the age of 78. His obituary in the local paper provides some biographical details:
He was Professor Emeritus of Law and Anthropology at the University of Alabama, and for 40 years held full tenured professorships in both departments, though he was proud that he never took salary or benefits from Arts and Sciences.
Professor Singer had a wide-ranging international career as well. After graduating from the Wharton School at the University of Pennsylvania, he worked for a year in Stockholm. A trip through Russia and into Iran introduced him to the Middle East. He returned to the States, graduated summa cum laude from Boston University Law School and in 1964 and joined the Peace Corps with his wife, the former Bethany Wasserman. They spent four years in Addis Ababa, Ethiopia where Professor Singer was a member of the first law faculty in Ethiopia and where two sons were born.
Prof. Singer joined the University of Alabama Law School in 1971 and in 1975 received the SJD from Harvard, with an anthropological/legal dissertation on traditional legal systems in Ethiopia.
While teaching full time at the University of Alabama, Professor Singer also fitted in numerous projects in countries as diverse as Albania, Cambodia, Croatia, Egypt, Fiji, Iraq, Trinidad, and Zanzibar. He became known as a major expert in restructuring land tenure in countries with poorly-organized or non-existent private land systems. He also took leave from the University to spend 1980-82 as the Ford Foundation Res. Rep. in the Sudan.
Professor Singer may be best known in the legal world as the author of a treatise, Sutherland, Statutory Construction. In recent years, he has shared authorship with his eldest son, Shambie J.D. Singer.
He was born in Boston, Mass. to the late Morris and Anna C. Singer. His first marriage ended in divorce.
He is survived by his wife, Anna Jacobs Singer; sons, Shambie, Jeremy (Nicole) and Micah (Ali); stepdaughters, Joanna Jacobs and Stephanie Jacobs; special children, Ejvis Lamani, and Anil and Aron Mujumdar; grandchildren, Sofia, Avery and Zeke Singer; and sister, Helen Silverstein.
"Some" details, I said. I would add a few more. Norman was a blast. He was boisterous and humorous. He had decades-long friendships with many of his students. His office door was always open and he was usually shouting out of it from inside to someone or other. (In a lively, not an angry, way.) And just as he was a big part of the life of the Law School, his wife, Anna, was and is a major part of the Tuscaloosa community and especially of our local synagogue; his stepdaughters, Stephanie and Joanna, were and are a big part of the local community as well.
When talking to hiring candidates about the strengths and distinctive qualities of UA and Tuscaloosa--and particularly given the difficulties of convincing hiring candidates, some of whom have lived in only a few and fairly standard places, that it is possible to move somewhere quite different (in some respects; all college towns have many shared traits) and have a good and fulfilling life--I generally focus on the strong, supportive sense of community I have found here, both at the Law School and across and beyond the university. Especially as a parent, and given all the medical issues I've faced in the past decade, it's been an extraordinarily important and rewarding aspect of life here. When I think of that, I am often reminded of one of the first visits my wife and I made here with our daughter, then about a year old, while we were still figuring out where to live and so on. Norman and Anna had us over to their house, a few blocks from where we live now, to welcome us and offer their advice. Their children had long since reached adulthood, but they found some old wooden toys for our daughter to play with while we talked. It's a little thing, I know, but a sense of community is built up from many such little things. It was a warm and welcoming visit and, between life in the Law School building itself, life in Tuscaloosa more generally, and our involvement with the temple, one of countless numbers of occasions when we were grateful for the warmth and friendship of both Norm and Anna. We will miss him, and extend our love and condolences to his family.
Friday, October 21, 2016
Tradition Project Conference: Tradition in Law and Politics
I'm in New York today for a conference called Tradition in Law and Politics. It's the kick-off conference for the Tradition Project, an intellectual enterprise under the auspices of the Center for Law and Religion at St. John's Law School, which is directed by my friends Mark Movsesian and Marc DeGirolami. Although there are obvious strong links to the study of law and religion, both the conference and the project are broader in their concerns and topics. The sessions over the next couple of days will cover the definition of tradition, the American religious tradition, the American political tradition, the common law tradition, and the constitutional law tradition.
This is a great and timely project and topic. One assumption on hearing about this conference might be that it's timely in a rear-guard sense, in that the regnant culture and moment are antipathetic toward tradition, and the rejection of tradition as a basis or reason for doing (or not doing) something is achieving important victories in, say, decisions on substantive due process and equality and arguments about religion. (My equipment here doesn't allow me to hyperlink very easily, but one might want to take a look at Neil Siegel's Balkinization post and piece on Justice Alito's role on the Supreme Court. Although I assume Siegel is unlikely to agree very often with Alito, there are commendably scholarly and sympathetic strains, in Siegel's linked piece, of interest in and acknowledgment of the kinds of people for whom Alito may be said to be writing.)
In a different register, however, at least some of the current bewailing of the state of our political culture also involves a form of traditionalism. This time it comes from a broader leadership class, caste, or establishment that includes both establishment conservatives and establishment liberals--including the same regnant liberals who may well reject tradition in many areas. Here, although they might not talk in terms of tradition, there is a strong ongoing lament for the radical loss or disruption of a settlement, or set of customs and practices, that enabled some degree of civil and productive political discourse, compromise, fellowship within the political class and beyond, and so on. Abstracting away from the rather egregious current figurehead for challenges to that tradition, recent populist movements here and elsewhere, on both left and right, and their sometimes destructive power, have both emphasized the value of our traditions and served as a reminder of the way that those traditions can be hollowed out, or left isolated by changes in the broader culture, or be rendered vulnerable by the failure to include and involve larger communities of people: people of color, members of the working class, denizens of regions suffering from economic and/or cultural dislocation, etc. In that sense, although there's no doubt that many readers of this post, or for that matter people here at the conference table, might associate a "Tradition Project" with mourners or rear-guard fighters on the traditionalist conservative side, and have little sympathy for such a project, there are broader reasons why such a project is timely, and those reasons ought to make more people, including many who would tend to label themselves as anti-traditionalist, more sympathetic to this project than they might be inclined to be at first blush.
Unsurprisingly, there are plenty of representatives in the room of, as a speaker put it, people who are "disposed to respect tradition," many of them religious, politically and culturally conservative, or both. As I've written above, there are at least two reasons the appeal of the project and the subject should not be limited to those people: 1) if the "traditionalists" are a minority voice today, that fact can itself be interesting and worthy of study; and 2) people who see themselves as non- or anti-traditionalist may discover, upon reflection or in response to emergencies and other exigencies, that they are more traditionalist than they think. I certainly hope the makeup of the room widens, and that one of the reasons for this is that a more catholic group of scholars knock on the door and express their interest in participating. The prerequisite, such as it is, is not that one be a traditionalist, but that one be someone who takes tradition seriously.
As per usual, I find myself in the middle. I'm convinced that there is value in tradition itself and in tradition as a subject, and concerned about any approach to law, politics, or culture that sees it as irrelevant or negative or illegitimate as a source of practice or authority. To my mind, one of the potential long-term goals or values of this project should be to explore the ways in which soi-disant rationalist liberals or progressives, or indeed anyone of whatever political stripe who sees himself or herself as operating purely rationally or empirically, end up believing in and relying on tradition, and react hostilely to challenges to those traditions they hold dear--and the ways in which they suppress or deny their own traditionalism and their own reliance on tradition as an authority. But I am also in some sense a tradition skeptic, and think it's possible both to take tradition seriously and be somewhat sympathetic to it, and to be interested in finding ways of defying it, subverting it, or introducing viruses into it. All of thes activities, of course, have a tradition of their own and are part of tradition itself.
In any event, great topic and great conference and I'm delighted to be here. I may have more to say, but there are other bloggers here and no doubt they'll have some reactions and posts of their own.
Tuesday, October 04, 2016
On "The Troublesome Use of Photographs . . . and Other Images" in Federal Court Opinions
Bear with me.
In 1997, Hampton Dellinger wrote an interesting commentary in the Harvard Law Review titled "Words Are Enough: On the Troublesome Use of Photographs, Maps, and Other Images in Supreme Court Opinions." Dellinger wrote that "visual attachments" to written opinions have potential value, including "offering the possibility of offering an impact more powerful than words." But he warned that "the unique attributes of these attachments pose special dangers." Even in cases where the accuracy of a visual attachment--a map or photograph, for instance--is not in dispute, it could still be problematic, because its "probative value [could] be outweighed by its prejudicial impact." Dellinger recommended that the Court stop using visual attachments altogether, or at least use them with great care. His article was fairly clearly directed at ostensibly useful, relevant, and probative visual attachments; judging by his discussion of Chief Justice Warren's use of photographs in Estes v. Texas that were more in the way of persuasion than directly relevant evidence, I think it's fair to say he would be even more critical of the judicial use of visual attachments that serve a purely or essentially persuasive purpose, relying on emotion rather than evidence.
Dellinger's article has been cited a number of times. In Nancy Marder's article "The Court and the Visual: Images and Artifacts in U.S. Supreme Court Opinions," Marder is supportive of the use by Justice Kennedy, in Brown v. Plata, of a stark photograph of a metal cage in which prisoners were kept. The photograph, she writes, is "very powerful, and adds a different kind of support--beyond the statistics and the words of experts--to Justice Kennedy's opinion." Marder disagrees with Dellinger's proposal that such aids not be used at all. But she adds emphatically that "they need to be used with care," that "the image with the greatest potential harm is the photograph, which can be very powerful and can elicit a strong emotional response from viewers," and that "the justices need to exercise restraint in deciding whether to include a photo in a highly contested area of the law. The most serious potential harm with photos is that they could arouse a strong, visceral response in viewers in an area that is controversial or emotionally charged. In such cases, the photos, rather than adding to reason and argument, will undermine them."
Finally, in "Taking Images Seriously," Elizabeth Porter addressed directly the use of visual images for essentially argumentative purposes: "visual icons," or images used "for purposes that are tied more closely to rhetoric than substance." She wrote--I think descriptively not normatively, based on what follows in the article--that "the naturalness" of such images makes [them] less subject to criticism than judicial use of extraneous or rhetorical textual examples." Porter proceeded to argue that "there are significant risks to allowing images to seep into the legal vernacular," including "the risk that image-driven legal argument will vitiate the intellectual rigor and civility of legal discourse." This risk, she wrote, "is more subtle [than the other risks she sets out], but perhaps more pernicious and less susceptible to regulation." It could result in "a language that appeals to emotion over intellect." Like Marder, Porter urged judges to use great care in deciding whether to incorporate images into their opinions, especially images that are "outside the record" and "only tangentially related to the subject matter of the case."
All this suggests a few points that seem to fall within the center of opinion about the use of images in judicial opinions. I think it also represents the general consensus among lawyers. These images should be as relevant and accurate as possible. Because they may have a great visceral and emotional impact, they should be used with great care, if at all. Judges should be especially reluctant to use them when they function essentially as an appeal to emotion, and when that appeal to emotion may overshadow the specific subject of the case. These problems are likely to be especially present and grave when the issue under review is a highly emotionally salient or hot-button one. Where a judge does so anyway, judges and scholars should be ready and willing to engage in public criticism of that judge.
When someone (other than me, since I do it all the time) writes this much in so dry a fashion, it's a fair guess that the tl;dr approach is deliberate, and is perhaps intended to secure gradual agreement through a series of discussions and examples that are not the subject of any recent conduct that is still subject to the passions and distorted judgments of the day, before holding up precisely such an example and asking people to judge it against that standard, regardless of the politics or strong feelings involved. And that is exactly what I'm up to here.
Here is an interview--a softball interview, unfortunately, of Jimmy Fallon-like toughness, although Fallon of course is not a journalist--between Mark Joseph Stern of Slate and Senior Judge Damon Keith of the Sixth Circuit. The interview concerns Judge Keith's dissent in a recent voting rights case, Northeast Ohio Coalition v. Husted. As Stern puts it, "Keith included in his dissent a [photographic] gallery [of] 'martyrs of the struggle of equality,' slain civil rights heroes 'whose murdered lives opened the doors of our democracy and secured our right to vote.'" In the interview, Judge Keith justifies his decision as follows:
I wanted to dramatize the racist attitude of the majority. Look at those pictures. These are men and women who died for the right to vote. I was really so hurt by the decision of the majority of the court. My grandparents lived in Georgia, and they were not allowed to vote because of racism. I thought about them. . . . I said in my dissent precisely what I thought the Ohio law was about, and I wrote about the struggle that we still have in this country for the right to vote. And I said, look at these pictures. All those men and women, white and black, Jew and gentile, gay and not-so-gay—this is what they lived for! This is what they fought for! This is what they died for!"
I cannot comment on the election law issues. I can say that the gallery of photos and captions--ten pages worth, or more than one-quarter of the dissent--is moving and powerful. I can say that built as it is on a history none of us should forget, it has a powerful visual and rhetorical impact. I can, in short, say all the things one is expected to say, not least because I feel them sincerely. That said, I find it very difficult to conclude that the inclusion of these images, from well beyond the record or the specific issues in the case, comes anywhere near the standards proposed by those scholars who have written on the issue of the use of visual images in judicial opinions. Again, I think that standard is no outlier, but fairly represents the center of lawyerly opinion on this question.
If those writers were right that the issue deserves attention, then Judge Keith's decision to include the gallery deserves attention from those who are concerned about or interested in the use of visual images in judicial opinions. It requires either public justification--principled justification consistent with past views on the subject--or public criticism. It is obvious that Stern could and should have pushed back more in the interview than he did. (The interview, the piece notes, was edited and condensed. If he did push on the point, he should have included that in the edited version.) For background purposes, Stern might have started by reading this article by his own Slate colleague, Dahlia Lithwick, in which she argues, citing Dellinger's piece, that the photographic display in Brown v. Plata was questionable given the power of the opinion itself, and questions whether "the court [should] be using visual aids to prompt emotional responses . . . in the first place."
One long last note. I hesitated some time before posting this, for two reasons. (Well, three, but an ambitious person's fear of being viewed negatively for posting something on this topic is not a good reason.) First, Judge Keith is an extraordinary man who has had a remarkable career and contributed significantly to the law on many issues, not least those involving the American original sin of race. Even those who disagree with some or many of his rulings can and should show respect for his exceptional life and long record of public service. The second reason is his age. Judge Keith is 94 years old. Perhaps his age itself, combined with that record of a long and distinguished life, counsels respectful silence even if he erred in including the gallery, at least according to the standard offered above. Age sometimes demands its own tribute, and sometimes the tribute is to let pass what, at least on the view above, would be a lapse in exercising the best judicial judgment and temperament. Perhaps that is compounded where, from the judge's perspective and perhaps that of many others, the arguable lapse is motivated by passion over an enduring injustice, and over what it means for a long history of struggle and sacrifice. It seems to me, however, that this last point may affect the ultimate argument about whether the display was improper or whether, instead, it was justified by extraordinary circumstances; but this should form part of the discussion about the propriety of the "gallery" itself and should not affect the decision whether to publicly raise that issue or not. Really, respect for or concern over his age is the key factor here.
Perhaps, then, a respectful silence would have been the best thing. But my decision to post anyway is itself based on respect. Whatever his age, Judge Keith still sits on the bench. Respect for him, as a judge and as a person, entails taking him seriously, and taking him seriously includes being willing to criticize him or, at a minimum, raise questions about the propriety of the gallery. Silence in these circumstances can be respectful, but it can also be patronizing, condescending, or dismissive. If he is fit to serve, and I certainly do not suggest otherwise, then he is fit to be criticized. Moreover, while I cannot help but feel his advanced age is a good human reason to be sensitive, I also note that most of the time, while we acknowledge that judges are human, we also treat their work product as that of professionals, and subject to professional commentary, questions, and criticism.
Finally, raising these questions here would have been less necessary if Stern had done his job properly. That the gallery was unusual as a matter of judicial practice and arguably involved the use of visual aids not for reasoned argument but "to prompt emotional responses" was obvious on its face. Indeed, it is likely that the unusual nature of the gallery prompted the Slate interview in the first place. Slate and other media sites these days are keen on the idea that it's not enough to just give someone an uncritical platform; the journalist has the duty to push back and ask tough questions. Stern's interview obviously fell short of that standard; it was more of a mash note. If he had done his job, readers would have had some additional and necessary context by which to judge the use of visual aids in Judge Keith's dissent. Whether they then criticized it or approved of it, they would at least have been relevantly informed. Since Stern didn't do his job, someone must.
For all that, I hesitated, both because of the powerful and sensitive issues and history that formed the subject of the gallery and because of the judge's advanced age--and, no doubt, out of a desire for professional self-preservation. But the issue deserves to be aired, so that people can consider what the proper general standard should be for the use of emotionally stirring, extra-record visual displays by judges, and either criticize the display in this case or come up with a sound reasoned justification for it.
Thursday, September 29, 2016
Will the Civil Service Revolt, or Work to Rule, in a Trump Presidency?
For various reasons--medical, spiritual, and intellectual--I have not followed the election closely and have increasingly tried to stay away from much election commentary. Having made up my mind long, long ago who I think ought not be president in this election, much of the coverage has been fairly irrelevant to me, and therefore fallen into the unnecessary-tsuris category, or into the category of things one reads not because they constitute a form of civic education or engagement, but as a kind of luxury good or type of entertainment. I worry about that seemingly widespread taste on a normative level--and I have not found the content especially entertaining anyway. The average commentary has not interested or pleased me much for similar reasons, especially social media commentary. Friends elsewhere have suggested to me, somewhat persuasively, that for some, engaging in this commentary can serve some kind of therapeutic or emotional or self-expressive need, although the need for those people to speak has little to do with anyone else's obligation to listen. Some of it, being aimed fairly clearly at people who already hold the same view, can fall under the category of solidaristic expression, which is just something that has never interested me; oddly, although I'm a big supporter of pluralism and of institutions, I'm not much of a joiner.
And a lot of the commentary, perhaps especially on legal blogs (or maybe I just have a biased sample, since I am more likely to read legal blogs than other sources), bothers me because it strikes me as simultaneously being inexpert and attempting to trade on the ostensible authority of the writer. I feel fine about "experts" engaging in speech and action as citizens, and without the use of their "name tag"; I would like to see a lot more of it, in fact. But I'm less comfortable with "experts" who opine publicly on things outside their sphere of expertise, or ostensibly within it but drawing more (or entirely) on their personal civic and political views than on anything having to do with their expertise as such. It's not just that this strikes me as an illegitimate use of one's ostensible authority that has bad long-term consequences for democratic politics. It's that I think it serves as a kind of costless luxury good or form of entertainment for the person doing the opining him- or herself, and thus as a distraction from the kinds of things he or she should or could be doing qua citizen. Your mileage may vary, of course, or you just might not mind getting your entertainment in this particular form.
There is one question I would like to raise, though. I think it would be unfair to say I raise it as an expert. I teach constitutional law and legislation/regulation (although I'm just starting in on the latter subject), but that hardly constitutes expertise across the whole range of questions and sub-topics that this entails. It's more accurate to say I know enough to find the question interesting and to raise it, but would rely on others, hopefully more expert, for interesting answers to the question. The question is, if Donald Trump is elected president, how will the body of government employees I will generally lump as the "civil service" react? Will they faithfully implement the government's policies? Will they resist doing so, but only insofar as those policies violate professional, legal, and/or constitutional norms? Will they resign in larger numbers? Will they engage in somewhat passive resistance or "uncivil obedience," by dragging their feet on implementation in a way they would not do for another administration? Or will they rebel more directly and forcefully--if perhaps not always openly? Administration changes often see a big shift of appointed government officers into regular civil service positions, a practice called "burrowing." If Trump is elected, will this happen on a larger scale than usual, precisely to facilitate this kind of resistance?
I have not seen much on this, although I haven't searched too thoroughly. There are more stories asking what Trump will do to the civil service than asking the reverse question. There is a New York Times piece by Eric Posner--the most interesting, because most dispassionate, legal academic who has written on the election, in my opinion--on "What President Trump Could or Couldn't Do," the last three paragraphs of which address this question. It comes up in this Vox piece (although I should note in all candor, if perhaps in slightly off-topic fashion, that I loathe Vox), which notes early on that "a massive civil service bureaucracy has a will of its own--and the kind of job security that The Apprentice never had to deal with." I would be remiss if I didn't note this Glenn Harlan Reynolds piece, even if I am highly dubious of its bottom line.
If there is more, I haven't seen it, although one assumes there is more out there. In particular, I wonder whether the subject has come up on blogs, listservs, Facebook pages, and other sites for, by, and drawing (likely anonymous) commentary from career civil servants. It strikes me as an interesting and obvious question, and the kind of question for which there are at least a few experts out there who might have something to contribute that actually is expert. It also strikes me as something that has immediate positive aspects, but also obvious potential for serious negative long-term consequences. People who have seen other, useful discussions are welcome to email me with links, of course.
[Two updates: A friend points me to this post on Lawfare. And another friend reminds me that another form of resistance would likely be via complaining and/or leaking to Congress and the press.]
Friday, September 09, 2016
A Take on Domnarski's Posner Bio
The really quick take is that I largely agree with Peter Conti-Brown's review. But perhaps a little more content than that is okay.
Like many ardent fans and sometime critics of Richard Posner, I was very excited by and had huge hopes for Richard Domnarski's Posner biography, which is now available. And I was equally dismayed when the physical book arrived on my doorstep. Quantity is not quality, God knows. But the book on first appearance struck me as very thin for a life that is packed with such intellectual ferment and set in such interesting times. A doorstop is not a classic by virtue of being big, but some subjects require more than a pamphlet. The structure of the book, on which more below, struck me as exacerbating the problems caused by the book's brevity. And the index is incredibly, and surprisingly, inadequate, both too small and too arbitrary. One may be somewhat charitable toward the author about this, at least if one has ever prepared one's own index. But the fact remains that someone--the author or the press, or both--released an academic biography into the world more or less lacking what I consider an obvious and necessary appurtenance.
I warmed up to the book considerably on reading it, in many respects. And, more or less like Conti-Brown, I think the best part of the book is its first two chapters--not incidentally its most traditionally biographical chapters. Posner's writing is unusually available and accessible. Of course a description and assessment of it must form much of the meat of the book. But learning about Posner the man, or about the interaction between the man and his work or the man and his times, would be something relatively new, Larissa MacFarquhar's New Yorker profile aside. And Posner gave Domnarski access to his archive and especially his correspondence, which provides many of the most interesting, human, and seemingly revealing moments in the book. More--much more--of that would have been great, but Domnarski makes very good use of it.
Especially good, perhaps, is the introduction and its weaving of themes that pop up (but could have been even better developed) throughout the book. His observation (on page 8) about Posner forcing lawyers out of their advocacy role in oral argument and thus leaving the client "suddenly without a lawyer" and giving Posner "an open field" is interesting. So is his general comment on the same page: "Looming over our look at Posner's unfolding careers as an academic, judge, and public intellectual is the fact that Posner has never thought of himself as a good fit for the law. He has described himself in an interview as not being fully socialized into the law." Of course I view these qualities as virtues, for Posner at least, and they are not news, but Domnarski uses them well in examining Posner's life and work. Generally, the interviews Domnarski conducted and the correspondence he uses provide some of the most interesting (and gossipy), if briefly used, connective tissue. And, because he is unconstrained by the structure that makes up the last two-thirds of the books, he can range more freely and insightfully in the first third into Posner's early life and professional career up to his appointment to the bench.
After that, for the most part, an "If it's Tuesday, this must be Belgium" spirit of list-making takes over. Domnarski opens the book by writing, "If anything, [Posner] seemed destined for a literary life. The core of his life as it has unfolded has been such a literary life, even within a career in the law, so that he has always been a writer first and a lawyer second." A literary biography that proceeded purely by list-making and precis ("In late 1940, Auden wrote 'September 1, 1939.' It was about the war. In early 1941, Auden wrote...."), without either digging deeper into the most important works or analyzing them through the writer or his times in a serious way, would be the wrong approach to a writer's life. The structure Domnarski adopts for the biography, with its repeated categories and bite-sized treatments, is too close to that kind of approach, and imposes a harmful stricture on the book. Reading a two or three page summary in every chapter that lists Posner opinions taken up by the Supreme Court, with short summaries and a count of Posner's "success" or failure on review, is not a major contribution, and the repetitive nature of such such sections grows tedious. Given Posner's own skepticism toward judicial biography and at least occasional fondness for data-mining and influence assessments as substitutes for biography, one can see why Domnarski might feel caught betwixt and between in his structural choices. But Posner is first and foremost a writer, not a judge, and Domnarski should have ignored any such preferences on Posner's part. Perhaps he did, and chose the structure independently; if so, he chose wrong. I would add, Posner-style, that many of the things that Domnarski does of this sort in the book could have been relegated more efficiently to appendices, where the approach could have been more unapologetically data-driven and the narrative of the book left to develop more fully.
This is not to say there are not many good moments in last two thirds of the book. There are; if my patience flagged after the first two chapters, it didn't run out. But these promising shoots are mostly strangled by the surrounding structure instead of flourishing. And, as Conti-Brown notes quite aptly, just as the book does too little with the life of Posner, it also does too little with his times. One might argue about whether Posner's life really demands a "literary" biography, but one can't argue that, if he is to be treated as a judge and academic who engaged highly with his culture and the politics of his times, then a judicial biography of Posner must treat those issues more deeply. Not because the intramural academic fights and their relations to the times are fun and gossipy--although, hell yes, that too--but because they are relevant and revealing and place Posner and his influence in a more meaningful context.
A last point: The key for Domnarski's book, at least in his thinking about the biography itself, shouldn't have been Posner's Cardozo study, but his 1995 book Aging and Old Age. It is not Posner's most famous book or the key to unlocking his life's work. For me, that would be the 90s trilogy of jurisprudential books, although a combination of his Economic Analysis of Law and Sex and Reason would do nicely too. But a biography of Posner appearing at this date (Posner is 77) must be, in some measure, an assessment of Posner in the winter of his years. That's especially true because, despite Domnarski's efforts to paint Posner as unchanging (albeit unchanging in his combativeness and contrarian sensibilities), Posner has been especially disputatious of late, the disputes have been especially public, and some of his quotes about the disputatious issues have been especially casual. Depending on one's perspective, it is at least reasonable to speculate about some changes in his positions, manner, approach, or concern for systemic constraints and consequences, for himself or others.
Of course Domnarski mentions this, but briefly and rather dismissively. Posner is "getting older," he notes, but "there's little direct evidence of his age having an effect" on him. And he quotes Posner saying, in a 2014 interview, "As long as my physical health holds up and senility holds off, I will continue to work as I have. I am one of those people who dread retirement. I hope I won't overstay my welcome."
That's not enough. Old age, Posner writes in his book, and the words are still true, is a subject that "carries a heavy emotional charge. . . . It is not so taboo a subject as sex [is that still true? I'm not so sure], but considerable reticence, embarrassment, and denial surrounds the public discussion of many aspects of it." The taboo should be broken, in this book of all places. To be clear, not every suggestion that a famous person of advanced years has changed, or declined, or gotten more careless in certain respects, is tantamount to a loose accusation of "senility," which in any event should not have been Posner's benchmark. Indeed, as Posner argues in the book, "A refusal to acknowledge normal, and in particular normal cognitive, aging can create exaggerated doubt about the competence of old people," by pretending there is nothing, no change or slowing in function, between total vitality and utter senility. Posner argues that federal judges show fewer signs of decline with age, for various reasons, including the nature of the job and the staff structure that has grown around them. But he also argues that the aged are on average "worse listeners and less considerate speakers than young people," "invest less in the creation of human capital and therefore have less to gain from receiving inputs of information from other people," and "have less incentive to conceal egocentrism and to engage in cooperative rather than self-aggrandizing conversation." Are Posner's recent public statements, and even some of his recent written work, so very far from those words? Are the constraints on aging effects he mentions as relevant to a judge's extrajudicial statements--or even to his judicial writing, insofar as it is not hemmed in by a clerk-driven model of judicial work?
But these kinds of questions are still largely verboten. One might expect people to be more willing to ask these questions of Posner, given the number of antagonists he has encountered over the years. But two factors, at least, inhibit them. One is that his recent animadversions have involved statements and views, on things like same-sex marriage and the failings of the late Justice Scalia or the Roberts Court, that are catnip to liberal legal academics. These individuals form the vast majority of the legal academy, which is not especially distinguished by candor or disinterestedness. And another is that most of us are well aware that Posner still has us licked in terms of smarts and productivity. (A 75-year-old with a history of "extraordinary capabilities" may still be far "capable than a mediocre 30-years-old," he writes. That observation hits home well enough.)
And there is a third factor restraining people from asking these obvious questions, which is that Posner is a famous and much-admired judge. Law professors have long said they are all Legal Realists now, but most are, at best, a sludgy mix of Realists, courtiers, high priests, and client-less appellate lawyers. It is striking that Justice Ruth Bader Ginsburg's extrajudicial statements about the election this summer were examined from many angles--but rarely if ever from the obvious one of asking whether they signaled a decline in reasoning function or, more plausibly and charitably, an age-related decline in prudence and judgment or an indifference to institutional considerations from someone who will not be around long enough to care much about systemic consequences. Asking the obvious questions--whether about Ginsburg or Posner, and whatever the ultimate answers--would not have hurt anything other than their feelings. Those are not serious academic concerns anyway--especially for academics, who love to boast of "speaking truth to power." Does anyone doubt that judges--even the ones we like--have power?
My point is not accusatory. It's true that I have been disappointed by some of Posner's recent output, relative to my all-time favorites among his writings. But if this is decline, then, to paraphrase the lady at the diner, "I'll have what he's having." Still, a pre-posthumous biography of Posner is necessarily going to be heavily concerned with his declining years, especially given that they have been so crowded with public incident. Asking more about whether and how he has aged should be a natural part of the book. It would have contributed to a sense of Domnarski having produced a life of Posner, not just an inventory. And it would have been a proper tribute to Posner, as well as a sound biographical move, to ask those questions more forcefully and forthrightly.
Friday, September 02, 2016
Another Upside of Being an Academic: Chronic Illness
I haven't been blogging much lately. That's not unusual: it's been true for the past two or so years. Some of it has to do with exhaustion factors associated with blogging itself. (That gives me an opening to promote this upcoming collection edited by Michael Desch of Notre Dame, Public Intellectuals in the Global Arena: Professors or Pundits?, in which I have a slightly dyspeptic chapter on bloggers as public intellectuals.) The other reason is that I have been generally sick the past two years and had ankle replacement surgery this summer--a pleasant bookend to my last summer, which featured fusion surgery on my other ankle. I will say as a quick side-note that although it's relatively early, both surgeries appear to have gone very well and I'm looking forward to brighter days.
Chronically-ill-academic pieces are kind of a genre at this point, and I've written here before on living with chronic pain and illness. Given that one of the reasons I'm blogging less is my dislike of repetition, I won't rehash (entirely--in looking back over this post I see I did limp over some well-trodden ground), although the subject, having consumed a big part of my life and energy for the past two years, is of understandable if selfish interest to me. I did want to apologize for being absent here, though, especially given how much of the burden has been shouldered by Howard and our guest bloggers, and felt somewhat compelled to say something about why I was absent. And given that my skill set as a blogger, such as it is, involves saying professionally imprudent things, but at such length that no one notices, I thought I'd add two points--one mildly contrarian, the other mildly "rude"--that I haven't seen made much of in the law professor posts I've seen on the subject of academics and chronic pain or illness.
The first is that, all things considered, one has to be counted as damned lucky to be an academic if one has to be chronically ill. The usual narrative and counter-narrative about law professors, certainly post-2008 but before then too, involves claims on the one side that law professors, like many other academics, wallow in free time and light duties, and extravagant claims on the other about 80-hour weeks and how much harder one works as a legal academic than one did in private practice. Both are exaggerated and both obscure the single greatest academic privilege concerning the use of one's time: flexibility. With few exceptions, law professors and other academics (although we are probably even better situated) have incredibly few fixed time commitments. Sure, we sometimes work long hours (though not as much or as often as the defenders assert). But for the most part we choose whether and when to do so. And, apart from classes and some service obligations, long pauses between major professional activities are easily--no doubt too easily--available.
And then there is all that is included in the word "summer." No, it is not a vacation--at least not necessarily, although surely some or many law professors use it in that manner and there are a couple of academic summer activities that are not easily distinguishable from vacations. Certainly it shouldn't be one. The fact remains that there are few jobs in which, if you need to plan a major absence from work for medical or other reasons, you can do so as easily as academia. Since I joined the University of Alabama in 2007, I have had two joint replacements, two joint replacement resurfacings, spinal fusion, and ankle fusion. There are other things I (not to mention my long-suffering family) would rather have done with my Christmases, Thanksgivings (and the stretch between the last class in November or December and the beginning of classes in January, if not "summer," is pretty big), and summers. Some of them even involve work! Of course my colleagues and institutional officials have been supportive and my students forgiving, and that helped greatly. But much of it had to do with the seasonal academic schedule itself, and its time flexibility. (And one might note cautiously and sotto voce that the relatively low expectations of the academy itself can help too. I assume everyone is familiar with Dr. Stantz's famous quote on the subject. )
One could and perhaps must add all the usual caveats. It helps to have the "right" kind of chronic illness, I'm sure--physical, painful but not utterly debilitating, and so on. It helps if you can time your chronic illness for after tenure (although I was chronically ill before tenure, if perhaps to a lesser degree, and did not find the tenure hurdle insuperable or even terribly burdensome). It helps if you have a good support system, and if your institution is not blind to your needs or stupid or intolerant. Large universities, like other institutions and workplaces, are not always as good as their word on various things, and sometimes lag far behind decent large private workplaces in developing and implementing best practices for employee care. No doubt many will find things like this report of interest. Complaints there are aplenty and always will be.
Still, apart from "member of the idle rich," which I'm not sure is a job description, being an academic seems to me to be a pretty great job for someone with a chronic illness. Given a choice, I would not be chronically ill. But since that wasn't an option, being an academic was a stroke of luck. And not a blind stroke, either. I'm sure many people's academic vocations are encouraged, not only by whatever forced reading time and isolation accompanied their childhood if they were chronically ill then, but also by the features of the academy that make the lifestyle relatively amenable to and possible for people with chronic illnesses. In this as in much else, I am convinced of the too-often ignored point that biology, or physicality, is destiny. For every FDR, a thousand others seek careers that will not tax them physically, perhaps literally, to death. And many a dynamic and prolific scholar is also, and by no means incidentally, a physically healthy one.
In any event, others with more expertise can add all the reasons we shouldn't be satisfied with the academy, the legal profession, or the workplace generally on questions of chronic illness. I simply want to add the mildly contrarian counter-note that all things considered, the academic is a pretty great place to be chronically ill. And this, I must say, gives me a certain amount of sympathy--not absolute, but still--with critics of law schools and/or law professors. Anyone who finds the time for six surgeries over nine years without major structural work interruptions has to have at least some sense of being privileged to have this job. Occasionally, someone who knows my situation will compliment me on managing to be so productive despite this or that. (Doubtless others with other situations, not necessarily involving their own illness but things like family commitments or care for aging parents, receive similar compliments from time to time. If not, they should.) I'm always touched by their fondness and kindness, even when I disagree with the assessment. But I surely cannot be the only similarly situated person who thinks that the wonder is not what I manage to get done, but how little some otherwise unfettered (whether by physical illness or other matters) individuals seem to do. I don't mean this churlishly, and of course many people labor under burdens others know nothing about. It is just a general observation about the enormous privilege of having this job, and perhaps about the moral and professional obligation to use all that time flexibility and luxury well and to the best of one's energy and ability. "I would like a good, happy, well-balanced life with time to smell the flowers" is not a sufficient justification for collecting, or continuing to collect, an academic salary.
I call the second subject "rude" in the sense of something accurate and obvious said at the wrong time or place. That subject is drugs--God bless 'em. I suspect this portion of the monograph is more autobiographical than broadly helpful, except perhaps to those who will experience a shock of recognition about the subject.
I doubt my illness had much to do with it, so much as the simple passage of time, but I have grown much more attached to my students, and to teaching, over the years. I was emphatically never disdainful of teaching or anything going along with it, but a lot of the biggest personal rewards of my job have come from teaching and from being able, over time, to track the development of my students after graduation, in practice and in life. This is a part of the job that, however seriously you take it, can be less visible at first, partly because you know a smaller base of students and especially if, like me, you do enjoy the scholarship and writing side of things. It also takes some time, first to master the "script" you build around your teaching materials, and later to toss out the script and change your teaching every year in response to changing circumstances and interests. The less consuming those start-up aspects of the job are, the more unmediated and rewarding your interactions with students become. And there is one final important aspect of teaching that is perhaps under-emphasized: the sheer fear of failure. It's one thing to disappoint yourself, as far as writing goes. That activity only involves one person alone in a room. It's quite another to face a room full of students, who have paid in time and money and effort to be in that seat and have every right to expect your best. One cannot fail them.
I think I can say that, with some but relatively few exceptions, I have not, even though the past two-plus years have unfortunately been unusually filled with pain. That's not to say I haven't had bad days, as we all do, when my energy level was lower than I wanted and so on. (I have found that if you are up-front and candid about this, students respond with great generosity. When I have told my students I'm feeling low, apologized, and asked them to supply the extra energy, they always have, to my profound gratitude. Often their energy lifted up my own. And that experience, and debt, certainly has encouraged me to look and listen more carefully for students suffering from burdens of their own, often unrevealed, and doing my best to reach out to them.) Other areas, no doubt, have suffered or required some adaptation. My office hours were more iffy, so I have relied more on setting up scheduled meetings with individual students at times when I know I will be in better shape. My inbox looks like my office: messy. I ask a thousand pardons of those afflicted by delayed or unanswered emails. But the classroom is our one major time-fixed obligation and the one thing we really can't stint on at all.
At least for those reachable by useful drug treatments, this is an area where one gives a heartfelt prayer of thanks to Big Pharma. If I may be still ruder, I have been helped immensely in the last few years by opioids and other heavy pain meds. One can go elsewhere for more wholesale condemnation of those drugs, whose increasingly strict and not always sensible regulation has made (law-abiding) doctors afraid to prescribe them and driven (law-abiding) patients through endless hoops to obtain them. But for those for whom they are needed, they are essential and return one to a semblance of life. They certainly saved my ability to function in the classroom in the way students can reasonably expect: with energy, mobility where that is possible, a joy in performance, and an ability to ignore the pain for the 50-90 minutes it takes to teach the class.
They have other problems and side-effects, of course. One of the reasons I've found the last two years so difficult is the almost impossible effort to achieve a workable balance between dealing with pain, on the one hand, and dealing with the effects of pain meds on the other. Both affect one profoundly and invisibly, and their effects have to be observed indirectly and in retrospect rather than being immediately obvious. Too little pain medication and you can't function at all. Too much, or even the right amount, and everything you do is a little more befogged. And your amount of energy and presence is affected either way.
Suffice it to say, the kind of cost in mental acuity that either pain, or pain meds, or the mix of both, imposes wreaks havoc on one's ability to write. And it has other, sometimes less visible, costs. I had a wonderful visiting semester elsewhere last spring, in which I enjoyed meeting many faculty and others, got to know many incredible students, gave a bunch of talks and participated in various activities on and off campus, and otherwise learned and enjoyed a great deal. But it was shadowed the whole time by a mix of pain and pain meds that drastically shortened my productive day by several hours on either end. I enjoyed the experience and think I did "well," in the way we talk about these things. But I wonder how much more I would have enjoyed it had I been in perfect health. Nevertheless, and without exceeding my dosage or anything of the sort, I was comforted to know that even if some of my interactions with faculty were cut short by my inability to be in the building and at my best 14 hours a day, I could time my pain pills just right so that I could give my students everything I had. I might need to collapse after that, but at least it would be on my own time.
In discussions of chronic pain by academics, I see less discussion of drugs, pain pills, and the like--let alone the presence of a dread word like "opioid"--and more general discussions of "living with" chronic pain or illness, although drugs are a key component in living with them. Hence my suspicion that there is something a bit "rude" in talking about them. I don't think it's just that their use is assumed or implicit. One may worry--I do, a little and maybe more than a little--about being typed as too sick, or as bad lateral material, or just about being vaguely associated with whatever stigma accompanies the use of serious pain meds, even when it's necessary and legitimate and helps rather than hurts one's work. I'm as ambitious as the next person, and then some, and would hate to be typed in that fashion. And I will say that one reason I'm so delighted by the latest surgeries is that they have already had an immensely beneficial effect on my general level of well-being. They have ended most of my day-to-day pain and made it possible to cut my pain meds almost to nothing. (I have one more joint on the chopping block, but not soon, I think. I'll cross that bridge when I come to it.) I am very confident that I will return to some of my best natural energy levels and use them in the classroom, on the blog, in shrinking my inbox, and God willing in more academic writing. Still, drugs helped me an immense amount and doubtless have helped many academics and others in similar situations. Yet they are rarely mentioned, possibly for the reasons I've suggested. In my view, however, anything worth carefully-not-mentioning is absolutely worth talking about.
I will close by adding that I consider myself absolutely blessed: by the drugs that helped, by the doctors and surgeons who helped too, by the institutions and students who did so much as well, and by the extreme flexibility of the academic life, which all things considered can be one of the best possible fits for the chronically ill. But not just by those things. I could have been sicker. The illness could have been something worse than chronic. It could have been chronic but of a different sort, and/or impossible to do anything about. Or, like many, I could live in a time and place where no treatment was or is available, or no access to treatment was or is available. There are many such people. No one enjoys being sick, or suffering pain, or having a heap of surgeries. But I nevertheless view the whole thing, not perhaps over but certainly in an excellent state of equilibrium right now, with a sense of having enjoyed remarkable good luck and--and I do think it's the mot juste and am unashamed to use it--blessings.
Tuesday, August 23, 2016
University of Alabama School of Law: Hiring Notices
We have several potential openings at the University of Alabama School of Law this year, in both the "doctrinal" and "clinical" areas, and my colleagues have asked me to post notices for them. Here goes:
1) THE UNIVERSITY OF ALABAMA SCHOOL OF LAW seeks to fill entry-level/junior-lateral tenure-track positions for the 2017-2018 academic year. Candidates must have outstanding academic credentials, including a J.D. from an accredited law school or an equivalent degree (such as a Ph.D. in a related field). Entry-level candidates should demonstrate potential for strong teaching and scholarship; junior-lateral candidates should have an established record of excellent teaching and distinguished scholarship. Although positions are not necessarily limited by subject, applications from those who study and teach commercial law (including contracts and sales) or torts (including products liability) are especially welcome; business law, family law, and insurance law are also areas of interest. We welcome applications from candidates who approach scholarship from a variety of perspectives and methods (including quantitative or qualitative empiricism, formal mode ling, or historical or philosophical analysis). The University of Alabama embraces diversity in its faculty, students, and staff, and we welcome applications from those who would add to the diversity of our academic community. Salary, benefits, and research support will be nationally competitive. All applications are confidential to the extent permitted by state and federal law, and interested applicants should apply at facultyjobs.ua.edu; the positions remain open until filled. Questions should be directed to Professor Heather Elliott, Chair of the Faculty Appointments Committee (firstname.lastname@example.org). The University of Alabama is an Equal Employment/Equal Educational Opportunity Institution. All qualified applicants will receive consideration for employment without regard to race, color, religion, national origin, sex, sexual orientation, gender identity, gender expression, age, genetic information, disability, or protected veteran status, and will not be discriminated against because of their protected status. Applicants to and employees of this institution are protected under federal law from discrimination on several bases. Follow this link to find out more: “EEO is the Law” www1.eeoc.gov/employers/upload/eeoc_self_print_poster.pdf.
2) Assistant/Associate Professor--Director Elder Law Clinic:
Wednesday, July 13, 2016
Ginsburg's Double-Down: Not Defensible--And Also Interestingly and Problematically Elitist
Since the round of interviews I wrote about yesterday, Justice Ginsburg has doubled down, in an interview with Joan Biskupic. (Biskupic's interview, incidentally, raises the same question I noted yesterday: Who is more damaging to Justice Ginsburg--her enemies, or her friends?) I thought her last set of remarks was inappropriate, and that the new remarks are even less appropriate and less defensible. So, naturally, there have been some defenses. Those defenses are mostly wrong.
I'll address those points in my next post. (I may be slow getting around to it, for medical reasons. For the same reason, and with apologies, I'm going to close comments.) First, I wanted to deal with some related issues--more far-flung in certain respects, perhaps, but also less likely to be remarked upon by the legal academic commentariat, which is basically conventional, non-radical, and establishment-oriented. Although these observations are less immediately related to the question whether the defenses offered on Ginsburg's behalf are sound or credible, I think they provide some useful background to that question. They also add some necessary points unlikely to be raised elsewhere, since most law professors enjoy essentially and often unconsciously privileged positions and are not likely to go in for self-wounding class warfare.
So, a couple of preliminary and certainly opinionated observations. The first has to do with the substance of Ginsburg's remarks. One understands why politeness might dictate not saying much about that. Still, one can and should ask: Do her remarks offer something new, insightful, wise, expert, or authoritative? Does she say anything that one would consider useful and novel regardless of the speaker's identity, or that draws usefully on any particular expertise? Or are her remarks essentially conventional, unexceptional, and banal? My view is that they fall easily into the latter category. This view does not depend on whether her opinions are right or wrong. I think some are right, and some buy into a conventional narrative that is so un-nuanced as to be more wrong than right. But even if they are all correct, they are still all conventional, unoriginal, and uninteresting. One remembers a fuss a while back when Justice Scalia said that he had stopped bothering to read anything other than the Wall Street Journal and the Washington Times. The opinions Ginsburg offers here are fully consistent with the views of a well-educated if impressionable person who reads, and only reads, The New York Times and The Washington Post every day, takes what is written there as conventional wisdom, and then passes it along. Apart from the identity of the speaker, there is no value-added in the substance of anything Ginsburg says in her latest interview. That's not a terribly kind thing to say, perhaps. But it is ultimately relevant to the underlying question whether her remarks are appropriate or defensible. Extraordinary extrajudicial statements may be justified because the circumstances are so novel, or (in my view, and only on rare occasions) because the remarks are so interesting and valuable that we would lose something if the judge remained silent. I'll deal with the first case later. But these remarks certainly don't fall into the second category.
Even if banal, are her comments expert? One can, of course, hold a conventional opinion that is still buttressed by expertise. Hearing it from one more expert doesn't really add all that much, but it is still an expert opinion, at least. None of Ginsburg's remarks fall into the category of expert statement. Of course she has more experience dealing with the press, with powerful people, and with fellow members of the elite than most of us could ever hope for (or, perhaps, want). But her remarks do not really seem to call seriously on any of that experiential knowledge, and certainly not on any of her legal expertise.
So we are left with the fact that Ginsburg indulged herself in a series of statements, vastly amplified by the megaphone provided by her fame and her office, that if offered anonymously on the comments section of, say, Slate or Salon, would read like every other comment to be found there. Not that there's anything wrong with that! No one should expect people to be wise because they are smart, or original because they are wise, or brilliant because they are heroic, or to have fascinating and unconventional opinions on matters that are essentially outside their expertise. Ginsburg spoke as the average well-educated citizen-member of a certain cohort of the population offering a fundamentally conventional set of opinions. That's fine, or would be if she were simply the average citizen of this kind and was not also making use of an ethically constrained public office as a megaphone. But it certainly doesn't make her remarks vital or necessary.
And this is the preliminary point I wanted to reach before showing why Ginsburg's defenders are wrong. Ginsburg's statements essentially present a representative, non-expert elite view--not wrong, necessarily, and perhaps quite right, but also not new or interesting. It is not an authoritative view in itself. But, because of who she is and because the statements are broadcast as coming from a Supreme Court Justice, they do trade on her authority, and get vastly more attention than they would have if coming from the average, anonymous, highly (perhaps unduly) self-confident and assertive Ivy graduate.
It's worth thinking a little about the ways in which her remarks speak to, and about, problems with class, social status, and elites. Our democracy would, in my view, be healthier if citizens paid no more attention and gave no greater weight to extrajudicial statements on non-legal matters from Justice Ginsburg than they did from the next randomly chosen person. And it might be healthier still if members of elites did not--as they so often tend to do--think of their own non-expert opinions as especially sage, interesting, courageous, or well-qualified. Failing that, if and when elites, by virtue of some office or position they occupy, are given special attention, authority, and weight by listeners when speaking in an unofficial capacity on matters outside their authority and expertise, but in circumstances which they know take advantage of their office and status, it does not seem like a heavy burden to ask them to use that status lightly--if at all. The failure to display that kind of modest silence, aside from the particular concerns that arise where a Supreme Court Justice is involved, speaks in broad terms (I am not accusing Ginsburg herself of these qualities) to the risks of arrogance and hubris that may afflict the successful members of what people sometimes think of, consciously or not, as a kind of natural aristocracy of high SAT-scorers.
One last aspect of the overlooked elite-centric nature of Ginsburg's remarks is that they were essentially costless. Supreme Court Justices have lifetime tenure and, as many others have complained on many other occasions, are substantially insulated from the same kinds of ethical rules and requirements that would confine many another professional. They make enough money and can draw on enough resources to insulate themselves quite effectively from many other pressures of everyday life or notoriety as well, if they choose to. Ginsburg can and, famously, will retire whenever she feels like it and not before. She will not face any serious repercussions for trading on her official status and celebrity in this very public fashion, other than being condemned on blogs or subjected to angry tweets. An Army staff sergeant with a couple of mortgages who decided to throw on her uniform, head downtown to the local newspaper, and make the same remarks would....Well, most likely she would not be paid any attention at all; she's not a Supreme Court Justice, after all, just a common soldier. But if she were, she would face the risk of the kinds of serious and even devastating disciplinary and professional consequences--military discipline, perhaps dishonorable discharge--from which Ginsburg at this point is essentially completely insulated. And, unlike that staff sergeant, for every critical remark she gets, Ginsburg will also receive any number of garlands from like-minded friends, fans, and courtiers. It's always worth remembering that one reason elites sometimes, if rather rarely, "speak truth to power," whatever that phrase means exactly, is because doing so is fairly cheap for them. It seems to me that if we're going to consider fully and seriously how we feel about Ginsburg's recent escapades and whether they are defensible, we should not overlook the heavy elements of class, elite social status, and privilege that feed into the whole affair.
More on the question whether Ginsburg's remarks were defensible, which essentially turn on two arguments--"emergencies justify extraordinary conduct," and "all citizens are entitled to speak"--in the next post.
Monday, July 11, 2016
Judges--and, Perhaps, Journalists--Behaving Badly
I was glad to see I was not the only person who thought Justice Ginsburg spoke obviously inappropriately in a couple of recent press interviews, in which she pronounced on presidential politics--although there is no particular reason to think she has any special expertise, insight, or wisdom about presidential politics--and on current cases. There is no point in loading another dollop of high moral dudgeon on about this, but there are a couple of other interesting things to be said about it.
The most interesting thing, to me, is what Jonathan Adler points out today on the Volokh Conspiracy blog. I'll just quote the relevant material from Jonathan's post:
[Ginsburg] said Heller was a “very bad decision.” As originally posted, the story reported that Justice Ginsburg added “that a chance to reconsider it could arise whenever the court considers a challenge to a gun control law.” For whatever reason, that line was removed and no longer appears in the online version of the article. [UPDATE: The missing language on Heller has not been restored to the article.]
UPDATE: It appears that this is the second time within the past week that comments from an interview with Justice Ginsburg as originally published were later removed. The other example, caught by Rick Hasen, is here.
I was going to write about the changes to the Liptak story before seeing this second example. I hate to attribute motives or actions to others on the basis of what "obviously" must have happened, because I know life is regularly more boring and contingent than that. From my brief experience in journalism, I know that although editors often help prevent reporters from screwing up, reporters nevertheless routinely have to fight editors to make sure that their edits don't introduce new inaccuracies into a story. And that was in the pre-Internet days, when one fought only one or two editors for only one or two editions of a story, rather than having to put up different versions of stories all day and struggle against a larger and less experienced cadre of editors. Still, one obvious possibility was that Justice Ginsburg, or someone from the Court, had asked Liptak or his editors to change the story between one version and the next, so that Ginsburg would not be seen as publicly trumpeting her desires and intentions for future cases. Against that, however, one has to factor in the possibility that the original version was the inaccurate one, and that the requested correction had to do with accuracy and not with saving the Justice from embarrassment.
I still refuse to impute or ascribe motives or anything else absent much stronger evidence. But it becomes much harder to accept the charitable readings so easily in the face of the second example, noted by Rick Hasen and reported by Jonathan Adler. In both cases, it appears that the story was changed to soften some of the details provided by Justice Ginsburg, on the record in a press interview, and thus reduce the damage done by the interview. That damage includes reputational damage in both instances, at least for those fuddy-duddy traditionalists who still think judges ought to abide by standards of dignity and discretion in extrajudicial statements. And it would include perhaps greater and broader damage in the case of the Liptak interview, since the original comments about Heller would provide a fair basis for recusal arguments in future gun-control cases. Given that both examples involve changing the story in the Justice's favor t0 make it less rather than more revealing, it is harder to simply assume that the change in both cases had to do with eliminating inaccuracies.
From my point of view, if it is in fact the case that Justice Ginsburg, or someone in her office or acting on her behalf, or some officer of the Supreme Court, contacted both reporters to get them to try to soften their stories in subsequent editions, that itself is not blameworthy conduct--for the Justice or her proxies, that is. After all, they don't work for the paper. But if the original versions of the stories are accurate, it would be entirely blameworthy for the reporters, or their editors, to change the story because someone associated with the Justice complained about it. It is certainly not a reporter or newspaper's job to save a judge or Justice from indulging, embarrassing, or even hanging him- or herself in print. To the contrary, and I doubt any journalist would disagree with me, if Justice Ginsburg or some other judge or justice wants to say something either slightly or incredibly inappropriate in an interview, the journalist's job is to provide him or her with enough rope to effect the hanging. And there is only one reasonable journalist's response to a request or demand from a source to change a story for any reason other than that it is inaccurate. The answer is a colloquial one, and the colloquialism is "get bent," or "go to hell." Via FB I have asked Adam, a regular and generous reader of the blog, to shed some insight into how or why the change was made in his story.
There are two words I think highly relevant but too rarely spoken or offered, due to the law's culture of flattery, in thinking about Ginsburg's recent rash of foolish public statements. The first is "senescence." Never having met Justice Ginsburg, I have an insufficient basis to think, or at least to say publicly, that she has become partly or completely senile. I also have no desire at all to speak lightly or casually about such things. But I think foolish interviews of this sort, which she has given increasingly over the last few years, do not just demonstrate a changing cultural standard that is being applied by an increasing number of judges. They also suggest, on an individual level, a possible increasing loss of the kind of judgment and restraint that Justice Ginsburg once would have displayed. I raise this not to suggest that she is not still capable of doing her job as a Justice--although this is not saying much, since I think even a pretty senescent individual can continue to fulfill the function of judge or Justice in a staff-heavy environment. But Justices are effectively managed by their staff in their official work, not their extrajudicial statements. And the increasing lack of prudence she is displaying with regard to the press, in circumstances where her staff does not or cannot run interference for her up-front, does suggest that she is no longer functioning at her best. (This, incidentally, is the kind of point we once would have expected Judge Posner to raise especially keenly, given his interest in aging and old age and his realism about judges as human beings. But I dare say that Posner's own recent extrajudicial statements suggest that he is suffering from the same condition.)
The second word is "enabling." One wants one's friends, not one's enemies or adversaries, to look out for one and to speak up if one is behaving badly or showing signs of decline. I wonder whether all the Ginsburg fans, friends, and admirers who have enjoyed and passed along these interview remarks, or who have indulged in the fun of meme-sharing and buying trivial T-shirts and coffee-table books, recognize just how much of a disservice they are doing to the person they purport to admire. If they really admired her, they would be better advised to urge her, publicly and privately, to keep quiet off the bench.
Monday, June 27, 2016
Posner is Much More Right Than Wrong
Three passages from the new Slate Breakfast Table are getting a lot of play today among law professors. I no longer read Slate if I can help it, but this was a fun conversation. The first is from Richard Posner, complaining about a widening gap between the legal academy and the judiciary. This is the subject of his most recent book, which I reviewed here, and one is better off reading the book than the post.
The second is a reply from Dawn Johnsen. She writes, in part:
I do not perceive law professors as pandering to the justices or as generally reluctant to speak truth to power. It may be that few employ Judge Posner’s sweeping style or reach conclusions as extreme. But the law journals are filled with substantive and harsh critiques. That’s what we do.
A better question is how much of that writing is worth reading. Is Judge Posner right that law professors are, well, too academic? At one level, I would say clearly yes—as have many others, over many years. . . . On the other hand, numerous of my academic colleagues have done serious full-time stints in government and nonprofits, typically by taking leaves. Many more engage deeply with real-world practical experience, even while teaching, be it through litigating and filing amicus briefs; serving on nonprofit boards; working with legislators and other elected and appointed officials; blogging for Slate or SCOTUSblog, Lawfare, Just Security, Volokh, or themselves. The American Constitution Society just announced a new Board of Academic Advisors filled with wonderful law professors who are deeply engaged with the world outside of the academy.
And the third is Posner's response. Again in part:
I don’t doubt that law professors are frequently active outside the classroom and that their academic work sometimes addresses practical issues, but what I’d like to see is evidence of impact. Amicus briefs? Working for nonprofits? Blogging? “Speaking truth to power?” Absurd: speak all you want, professors, power doesn’t listen to the likes of you.
I think Posner's book is deeply flawed, as I write at length in the review, and that his initial post is overstated. That said, I think his reply is right on the money. Johnsen raises some very peculiar, perhaps tellingly peculiar, arguments in response to him. Whatever the phrase "speaking truth to power" means, it is ill-chosen here. Law professors do indeed sometimes speak truth to power. But most of the time, at best, they speak truth about power, which is not at all the same thing. Speaking truth to power requires one to speak directly to an audience of the powerful and for the powerful to be listening. Burying a criticism of the powerful in the middle of an over-long law review article in a journal likely to be read by few--few law professors, let alone lawyers, law clerks, and judges--does not require much by way of fortitude. It amounts to whispering, with footnotes, into the void.
Whatever the phrase "engage deeply with real-world practical experience" means--how does one engage with experience?--her examples are weaker than she apparently supposes. Without doubt, some law professors--even a large number, although small compared to the total number of law professors and smaller still in the top tiers of the legal academy--have practical experience and continue to make use of it. I applaud them for it. (Provided, of course, that they maintain a distinction between their legal work and their academic intellectual work, which, for better and worse, is supposed to operate by different standards.) And some law professors write amicus briefs--rather than merely signing them, which requires no practical experience and gives one no new practical wisdom. Those are exceptional cases. Some of the other examples are relevant but rare. The activities she cites that are actually most commonly engaged in by law professors have nothing to do with "engaging with practical experience." Writing an op-ed or blog post does not require practical experience and does not conduce to it. The best-placed op-eds I have written drew on my academic expertise and a soupçon of, God willing, wisdom and common sense, but not on any practical experience. I regularly receive emails with recent op-eds by Bruce Ackerman. They're very good and so is he, but they are hardly underwritten by practical experience.
The notion that serving on the ACS "Board of Academic Advisors" has much if anything to do with "engaging with practical experience" is quite absurd. Even as a list of examples of practically engaged lawyers it is questionable, since some of them have little practical experience and, for others, their primary practical experience is in public advocacy and propaganda, not lawyering. As should by now be expected, Johnsen raises as a counter-example to Posner the go-to case of Randy Barnett. He has indeed had a good deal of real-world influence. But I know no law professors who do not believe, openly or quietly (and law professors are even more polite and flattering to each other than they are to judges--far too much so), that Barnett's influence has grown proportionally as he has focused more on public advocacy and meme-propagation and less on genuine academic work.
You can read my review to see how much I think Posner has strayed recently from his best work, and how overstated I think some of his current claims are. But I think he is generally right in his current complaint, although one can read it descriptively without sharing completely his normative views about what law professors ought to be doing. (That turns out to be, essentially, echoing Posner's own views and serving as adjuncts to the federal judiciary.) And he is right in spades in his response to these rear-guard defenses of the "relevance" and "engagement" of the legal academy. If our defense rests on "speaking truth to power," we are in serious trouble.
Interesting in both cases--with respect to Posner's posts and those of his Breakfast Table critics alike--is the focus on influence at the level of national politics or the federal judiciary. Those law professors most likely to have serious practical experience reside in the "lower" ranks of the legal academy, and they--and all of us--would be better off focusing on gaining experience and seeking for influence at the local and state level. But law professors are status-seekers, and that kind of engagement brings no rise in status. And aside from that, there is a difference, swiftly elided by all the Breakfast Table talkers, between having practical experience and seeking or wielding influence. There are plenty of reasons to favor the former, but also plenty of reasons to question the latter as a goal. I think it is right that more legal academics should have practical experience, and do not except myself from the criticism. But it is hardly clear that they should have or seek influence, especially national legal or political influence. In a moment in which large numbers of people are questioning the arrogance or blindered perspective of elites, and in which academics have lost a good deal of their academic authority by departing from serious academic standards in the interest of political engagement, surely there is room to pause before concluding that it's a good idea to stir hundreds more politically engaged, epistemically-closed elites into the mix.
Friday, June 24, 2016
Annual Law and Religion Roundtable
With Nelson Tebbe and co-blogger Rick Garnett, I have been an organizer of something called the Annual Law and Religion Roundtable ("ALRR" for short) for the past seven or so years. (Accuracy rather than modesty compels me to say that Nelson and Rick are the real heroes here and do the lion's share of the organizing work.) This kind of informal but organized subject-matter conference has become pretty common in recent years and has a been a wonderful development. I share the view of a number of participants that the ALRR is the conference I most look forward to every year; I even scheduled my annual summer surgery around the conference this year. This year the conference was held in Montreal at McGill University, with the generous support of McGill and various centers there, as well as Notre Dame Law School's Program on Church, State, and Society; the co-hosts at McGill were Jacob Levy of McGill's political science department and Victor Muniz-Fraticelli of McGill's Faculty of Law. (Check out the terrific recent books from Levy and Muniz-Fraticelli.)
A word or two on these kinds of conferences generally and on this year's roundtable in particular. For obvious reasons, these conferences are much better than general conferences like the AALS. They are generally pay-your-own-way affairs, although McGill and Notre Dame were generous in their support of conference resources and a fabulous dinner. Our approach with the ALRR has been to hold it at a different host school every year, to spread the organizing costs, stay a step ahead of the creditors, and make sure that it's easier for folks in different regions to attend the roundtable. (I am reminded every year of Guys and Dolls and the "oldest established permanent floating crap game in New York.") The guest list is large but not too large and never entirely fixed, and we try to ensure some rotation in and out of the roster. An important aspect of the roundtable is our desire to ensure a mix of senior scholars and junior and/or up-and-coming scholars in the field. Not only do we benefit a good deal from the ideas and energy of the junior scholars, but all three of us have benefited from the kindness of senior scholars in law and religion and would like to keep the virtuous cycle going. Participants are expected to read everything before they show up and presenters (not everyone presents every year) are expected to keep their remarks short so we can focus on questions and discussion. For the past few years, we have included a "hot topics" panel or two, to focus on new developments and give an opportunity to people who want to present but don't have a developed paper in hand. We generally try to make some invites outside the legal academy, to scholars of religion, political theory, history, or what have you, although we've been less successful in that. Dropbox makes it even easier to facilitate the whole thing.
I used to joke that the one problem with the roundtable was that there was too much damned pleasantness and agreement. Changes in the field and high-profile cases in the last three or four years have changed that to a degree, as has the fact that the composition of the room and of the broader church-state discussion has changed as more scholars who focus primarily on equality have taken up religion-related issues. That has been a valuable development on the whole, albeit one that can raise the temperature of the discussion. Over time, I have come to appreciate that one benefit of the subject-area annual roundtable is that one gets something of a real-time picture of what "problems" are coming to the fore or fading to the background and of changes in the center of gravity or consensus on law-and-religion issues.
Two notable features of the roundtable this year were the presence, obviously, of a substantial number of Canadians, and a larger number of political theorists and other non-law-school faculty. (A personal note: I graduated, around the dawn of time, from McGill, and it was a real treat to be back on campus and have ready access to the vastly superior Montreal bagel. As a partially Canadian-trained lawyer, it was also an honor to meet Canadian scholars whose work on law and religion whose work I have followed and respected for years.) The cross-border element was incredibly useful in ways both expected and unexpected. American and Canadian scholars learned a great deal from each other on the details of cases and the similarities and differences between the two countries on church-state law. More unexpectedly, the cross-border element of the conference and the presence of more non-law scholars changed the tone and nature of the discussion, altering the map of the room and disrupting the tendency to line up on opposite sides of particular hot-button cases. It was an interesting lesson in the unanticipated benefits of comparative constitutional law.
Thanks again to McGill, Notre Dame, Rick and Nelson, and the participants for a really fruitful and interesting discussion. If your field does not have an annual roundtable of this sort, I encourage you to start one up, and any of us would be happy to offer advice.
Wednesday, June 15, 2016
Notre Dame Law Review Symposium on Dignitatis Humanae
The symposium issue of the Notre Dame Law Review is out and available online. The symposium is titled "Religious Liberty and the Free Society: Celebrating the 50th Anniversary of Dignitatis Humanae." It includes interesting articles by John Garvey, Anna Su, Chris Lund, Tom Berg, Marc DeGirolami, and others. Enjoy.
Friday, June 10, 2016
Trump, the Goldwater Rule, and Trading on Authority
It has become a truism that a significant change in the ecology of public intellectuals in the past decades has been that where once many public intellectuals were free-standing writers with no "official" position, a lot of them have since moved into the academy. (To be clear, many public intellectuals are academics, but most academics are not public intellectuals.) It has been a related but separate concern--of mine, at least, and I'm sure I'm not alone in this--that many academics and other professionals are eager to trade on their authority and/or credentials when making public statements about matters of public concern, whether their expertise has anything to do with the particular statement or not. In this they are often abetted by the press, for its own reasons. In the legal academy this comes up in discussion of whether and when law professors should join amicus briefs or sign letters and statements, but it certainly has wider application. The two points are nicely connected in a couple of recent stories.
Section 7.3 of the American Psychiatric Association's Principles of Medical Ethics, the so-called "Goldwater Rule," states:
On occasion psychiatrists are asked for an opinion about an individual who is in the light of public attention or who has disclosed information about himself/herself through public media. In such circumstances, a psychiatrist may share with the public his or her expertise about psychiatric issues in general. However, it is unethical for a psychiatrist to offer a professional opinion unless he or she has conducted an examination and has been granted proper authorization for such a statement.
Kroll and his co-author, independent clinical psychiatrist Claire Pouncey, object to the way the rule stifles a psychiatrist’s ability to speak his or her mind. Certainly, Pouncey told me, psychiatrists shouldn’t run around shooting their mouths off about things they haven’t deeply studied. But it’s impossible, she said, to distinguish between the psychiatrist as a professional and the psychiatrist as a person — and that person might feel a very real ethical obligation to talk about their perspective on the mental health of a public figure angling for a position of power over the whole country. “We don’t dispute the spirit of the law,” she said. “But it’s not a real distinction and it shouldn’t be upheld by a professional body.”
Both articles make some interesting points, especially about the non-enforcement of the rule, which with the rise of Trump's candidacy is going to be violated with increasing alacrity. But--without wanting to exceed my own expertise--it seems like a pretty sound rule to me. I suspect that one should always be suspicious whenever a professional talks about "the deeper dictates of ethics and professionalism." I also think Dr. Richard Friedman, in the Times piece I link to above defending the rule, is right to say that engaging in this kind of long-distance, drive-by diagnosis risks intellectual dishonesty.
The commentaries note that a psychiatrist or psychologist is still free to say certain things publicly, short of offering an individual diagnosis. Perhaps that's a mistake and the rule should be stricter. But at the least it means the rule's bite is not that great. And it does not appear to prevent a mental health professional from "speak[ing] his or her mind." They can do so as citizens; they simply can't do so as professionals, in a way that specifically invokes their supposed expertise to buttress their opinions and phrases it as a genuine diagnosis of an individual. The argument ad Hitlerum, which often is so unhelpful, seems useful here in judging how necessary it is to get rid of the rule. Psychiatrists, psychologists, and everyone else should have spoken out or taken action against Hitler and National Socialism, and taken other actions that have nothing to do with being mental health professionals, such as running for office, protesting, taking up arms, or assassinating him. But a statement like, "If only I had been able to offer a public mental health diagnosis of Hitler, despite never having examined him, all this could have been avoided," is clearly nonsense, and one that betrays a sort of excessive professional amour-propre at that.
It seems to me, then, that what those professionals who have spoken out, either in violation of the rule or arguing for repeal of the rule, want is not to be able to speak their conscience, but to be able to speak their conscience more successfully, by trading on their supposed expertise and authority, even when that expertise is of dubious relevance. They might be able to persuade (or manipulate, or browbeat) people more effectively if they were speaking down to them as "experts," rather than speaking to them on an equal level as fellow citizens. Our society increasingly distrusts professionals, experts, and other authoritative individuals and institutions, but it is still a credentialist society in which expertise and authority carry some additional weight. At the same time, it is one in which many professionals and professional bodies increasingly argue that they should take institutional positions that are essentially political and have little to do with their expertise as such. That's a mistake, in my view, and if professional individuals or bodies are going to make it, they should at least say that they are advocating a specifically political position that has nothing to do with their profession as such or its "deeper dictates."
In any event, the urge to trade improperly and without serious foundation on authority seems endemic, in a way that speaks to the problems with a credentialist society and its abuses. It says a lot about the rather phony use of experts in the news media as a vehicle for reporters to advance some argument rather than making it themselves. It also speaks to the erroneous conviction of many professionals, and many academics, that subject-matter expertise is the same as general intelligence or wisdom, and that because they have a political conviction about some issue that can be phrased conveniently in terms of their expertise, that opinion ought to have some special weight. That is hubris. It also suggests that even professionals themselves think of their professional status as a tool to be used and misused, not as a set of strictures and responsibilities that go along with professionalism and rightly limit the actions of those who take their professional role seriously. This kind of trading on authority is likely to exacerbate rather than reduce the general public distrust of experts, authorities, and institutions, and it should. There are arguments for and against the proposition that Trump's relative success so far indicates a kind of populist or working-class pushback of elites, and I won't weigh them here; but this kind of trading on authority does seem to encapsulate the kind of elite behavior that is likely to produce just such a pushback.
Problems with trading on authority are in some ways greater, and in some ways lesser or more complex, with lawyers and legal academics. On the one hand, what they have "expertise" in is often closer in substance to politics and civic involvement, and so it's harder to frame a rule of conduct that would limit them too sharply in what they say. On the other hand, and for more or less the same reasons, they engage with great frequency in the public issuance of opinions that are dressed up in authority, yet do not draw in a serious way on any actual expertise. And, again precisely because so many political issues in the United States can be translated into legal terms, and because they are favorite go-tos for the press, they are asked to weigh in as "experts" on various issues far more often than, say, psychiatrists or engineers. Nothing stops them from asking the interviewer to omit their professional status from the description of them in the story, or to insist that the story make clear that they are speaking as citizens and not as experts, and that their opinion is not especially strongly related to their actual expertise. I suppose then they just wouldn't be quoted at all, but that's hardly a bad thing. One might say that readers already understand this and can disregard their opinions, but that just invites the question why the "experts" aren't explicit about it to avoid any misunderstanding--and the answer to that, I think, is that they want to trade on their authority, or perhaps have an overinflated sense of their actual authority and expertise. Legal academics ought to be wary and punctilious about this sort of thing. And the press ought to curb its unhealthy and lazy addiction to quoting law professors, except on questions that genuinely require expert opinion and on which the person interviewed is actually an expert.
I have in mind as a partial and imperfect example in the legal field the Adam Liptak column last week in the Times on Trump and the rule of law. Mark Tushnet wrote about it last week, twice and in his usual enjoyable way. The story got a lot of Facebook prominence in my feed, unsurprisingly given who my friends are, and more surprisingly (in some ways and not others) got page one play. Headlined "Donald Trump Could Threaten U.S. Rule of Law, Scholars Say," it featured quotes backing up that assertion by what it called "legal experts across the political spectrum." In reality, this meant several politically conservative (by academic standards, anyway) and/or libertarian legal scholars and advocates. With one very important exception, I don't disagree with the general conclusion. And I believe the phrase "rule of law" and "First Amendment" has somewhat more content than Mark thinks it does. He appears to think "rule of law" is an essentially vacuous phrase with "no there there," whereas I think it's a mostly windy phrase with little there there.
Even if there's more there than that there, however, the article didn't really ask difficult questions about the rule of law and, at least on the rule of law questions, didn't actually ask questions that called for any particular expertise about the rule of law beyond that possessed by an average somewhat-informed citizen. There are relevant questions that might call for more careful expert examination and benefit from more expert speculation--specifically, whether and to what extent the larger constitutional, political, and bureaucratic structure will constrain Trump's ability to act effectively in a rule-of-law-threatening manner, in the way summarized by President Truman. A Trump presidency is bound to raise like never before the question whether those who staff the administrative state are creatures of the president or their own institution. I suspect something like uncivil obedience will be a highly relevant concept to executive-branch workers if Trump wins. This question is raised in the column, sort of, but given short shrift and not much expert consideration. Leaving aside the motives and good faith of the people quoted, I think it's hard to read the column in any other way than as one that trades on authority for persuasive purposes in service of the author's goals. That reading is even harder to avoid given the pronouncement that the article is based on discussions with experts from "across the political spectrum," and the contrasting reality that it uses conservative and libertarian law professors and advocates, clearly in order to persuade conservative and libertarian readers of Liptak's column, if any such exist. The piece is essentially a persuasive exercise, and trading on authority is clearly a key part of its persuasive arsenal.
Saturday, May 14, 2016
Class, Politics, and the Academy
I thought Nicholas Kristof's column about the value of ideological diversity in the academy the other day was not worth mention, because it was so unremarkable in its assertions. I do, however, find the letters in response to it quite interesting. One in particular struck me: a response from a law professor at an Ivy League law school (one of my alma maters, as it turns out) who writes:
It is not the job of the university to represent all the views held in the surrounding society. The commitment to critical inquiry requires it to disfavor some views based on religious dogma, social convention or superstition. The goal of a community of mutual respect requires it to disfavor others, including those that are explicitly racist, misogynist or homophobic. Such views can be expressed in the university, but it is not a cause for concern that academics do not espouse them in their teaching and research. Much of the disparity between views in the academy and in the Republican Party is attributable to their varying social bases. Academics tend to be educated and middle class. The current Republican Party is constituted disproportionately of the undereducated and the wealthy.
That education leads people to different views is neither surprising nor, on its face, disturbing. And if it is a problem that the views of rich people are underrepresented in the academy, they have had little trouble making up for this disadvantage in the media and the political system.
There are a number of interesting things about this response. Although my main interest is in the last few sentences, the opening raises some questions too. Does the professor, who believes (rightly, in my view) that the university is not obliged to represent all views held in the surrounding society, think the university is obliged to represent all groups or individuals in the surrounding society? Or does he think that the commitment to critical inquiry is the university's primary goal and the only proper basis for hiring (or admissions?) decisions? In what circumstances does the professor think that the university should disfavor views based on religious dogma, social convention, or superstition? Very few, surely; in my experience, dogma and social convention are entirely common bases for views held and statements made by academics, critical inquiry is often championed but less often required or exercised, and in any event these things are rarely directly relevant to an academic's discipline and focus. It is possible to teach economics while believing that God was incarnated as a human being, or to teach contracts while believing that genetically modified foods are unsafe or that there is a link between vaccination and autism. One question about ideological diversity in hiring is whether hiring committees, while asserting an interest in critical inquiry, nevertheless pay attention to and disfavor one set of cues about a candidate's disciplinarily irrelevant obedience to certain dogmas and conventions while ignoring or welcoming others--whether, for instance, they are likely to look askance on an English literature candidate who notes in passing her membership in a charismatic church, while ignoring a passing reference by another candidate to Reiki or therapeutic touch. And if or when conservative candidates are disfavored, how often is it because of explicitly racist, misogynist, or homophobic statements, and how often is it because of other cues or views that are not explicitly any of those things, or because of what ought to be irrelevant factors (getting one's litigation experience at a conservative public-interest firm, rather than a liberal public-interest firm or large corporate law firm, for instance)?
I am, however, more interested in the closing arguments in the letter. It is interesting the way the letter pivots sharply and silently from the original column's concern, with liberal versus conservative ideology, to a focus on rich vs. poor. It is equally striking that the writer then describes academics as composed of the "educated and middle class," and Republicans as constituting the "undereducated and the wealthy," and pivots again to the largely irrelevant peroration about "the views of rich people [being] underrepresented in the academy." It's not clear to me whether the writer has a problem with the certainty that the poor, as opposed to the rich, are underrepresented in the academy--a point that takes on added resonance given the many barriers to successful entry into the credentials arms race posed for the poor, and perhaps takes on added weight if, as the writer would have it, giving more entree to the poor and currently undereducated might also give more entree to those holding conservative views. In any event, it should be clear to any academic that the views of, if not the rich, then certainly the more-than-"middle class," are the predominant views of the academy. The average salary for full professors in the United States was around $100,000 in 2007. I cannot begin to estimate the average salary of an Ivy League law professor, although I would take one if offered. At a minimum, I'm guessing that they are in the top ten percent, if this chart is any indication.
Although I'm sure it is unintentional, I think the letter trades heavily on an elision of the difference between being rich and being conservative, and of the difference between views held about the poor in the academy (no shortage, albeit largely of a de-haut-en-bas nature) and views, of whatever political stripe, held by the poor in the academy (heavily under-represented). Of greatest concern to me, however, is that his focus on the "rich" being under-represented in the academy elides the plain fact that the affluent are extraordinarily well-represented in the academy. If having more poor, working-class, and conservative views in the academy meant I would have to put up with more rich people in the academy as a side-effect, or if it meant thinning the faculty ranks of the wildly over-represented affluent members and products of the professional-managerial class, I would consider that a fair trade. And those people will, in any event, have little trouble making up for this disadvantage in the media and the political system, in which their views are also heavily over-represented.
Monday, May 09, 2016
Aristotle on Trolling
Lovers of virtue ethics, Internet norms, smart-assery, or all three will very much enjoy this piece in the Journal of the American Philosophical Association: Aristotle, On Trolling. Here is the opening:
That trolling is a shameful thing, and that no one of sense would accept to be
called ‘troll’, all are agreed; but what trolling is, and how many its species are,
and whether there is an excellence of the troll, is unclear. And indeed trolling is
said in many ways; for some call ‘troll’ anyone who is abusive on the internet,
but this is only the disagreeable person, or in newspaper comments the angry old
man. And the one who disagrees loudly on the blog on each occasion is a lover of
controversy, or an attention-seeker. And none of these is the troll, or perhaps some
are of a mixed type; for there is no art in what they do. (Whether it is possible to
troll one’s own blog is unclear; for the one who poses divisive questions seems only
to seek controversy, and to do so openly; and this is not trolling but rather a kind
Well then, the troll in the proper sense is one who speaks to a community
and as being part of the community; only he is not part of it, but opposed. And
the community has some good in common, and this the troll must know, and
what things promote and destroy it: for he seeks to destroy. Hence no one would
troll the remotest Mysian, or even know how, but rather a Republican trolls a
Democratic blog and a Democrat Republicans. And he destroys the thread by
disputing what is known to be true, or abusing what is recognised as admirable;
or he creates fear about a small problem, as if it were large, or treats a necessary
matter as small; or he speaks abuse while claiming to be a friend. And in general
the troll says what is false but sounds like the truth—or rather he does not quite
say it, but rather something very close to it which is true, or partly true, or best
of all merely asks a simple question about the evidence for climate change. Hence
the modes of trolling are many: the concern-troll, the one who ‘sees the other
side’, the polite inquirer into the obvious. For the perfected troll has no need of
rudeness or abuse, or even of fallacy (this belongs rather to sophistic or eristic,
and requires making an argument): he only makes a suggestion or indication
Saturday, May 07, 2016
Two Cheers for Candor
Although I found it horrifying, I also immensely enjoyed Mark Tushnet's post yesterday recommending that "liberals" abandon "defensive crouch liberal constitutionalism." It begins:
Several generations of law students and their teachers grew up with federal courts dominated by conservatives. Not surprisingly, they found themselves wandering in the wilderness, looking for any sign of hope. The result: Defensive-crouch constitutionalism, with every liberal position asserted nervously, its proponents looking over their shoulders for retaliation by conservatives (in its elevated forms, fear of a backlash against aggressively liberal positions).
It’s time to stop. Right now more than half of the judges sitting on the courts of appeals were appointed by Democratic presidents, and – though I wasn’t able to locate up-to-date numbers – the same appears to be true of the district courts. And, those judges no longer have to be worried about reversal by the Supreme Court if they take aggressively liberal positions.
My sense as a fond and frequent reader of Mark's work, in both its earlier and later periods, is that, rather than having to choose between reading his work as being in earnest and reading it as puckish, one should read it simultaneously as both. Like all of his work, including his more puckish posts and articles, his post should be applauded for its candor. Unlike some, Mark is willing to put his cards on the table, knowing that openness about these matters from legal academics won't do much to derail such a program and not caring much, I think, even if it does. All legal academics should be so candid and careless about consequences, but, alas, they often aren't.
I do have some critical comments about the post. The first is to urge readers to pay attention to the implicit assumption, or perhaps Freudian slip, in that first paragraph, which effectively treats all those "generations of law students and their teachers" as if they were and are all liberals. Of course they weren't and aren't. I don't worry much about such an apparent assumption appearing in Mark's work, because he is much smarter than the average bear and knows better. If I were a conservative student, I wouldn't hesitate to take one of Mark's classes. I do worry about such an assumption in the hands of a dimmer, less self-aware, or more unconsciously programmatic law professor, however. Mark's post is, among other things, an advertisement for the continuing importance of ideological diversity in the hiring of law professors and the admission of law students.
Second, I question Mark's labeling of the post as addressing the past and future behavior of "liberals." For one thing, some liberal legalists place more emphasis on the "liberal" part of the formula, and others on the "legalist" element. For another, "liberal" obscures too many intramural differences. Although it's a close call and I don't mean to white-wash anything, I think his post is more profitably read as referring to what legal progressives or leftists ought to do than it is as giving marching orders to liberals. Making assumptions about motives is generally a fruitless enterprise. Still, there is a case to be made that the best way to understand this post is as one issued specifically from the (less powerful) left, with the hope that enough impressionable (and more powerful) liberals will be cozened into taking it seriously and doing the left's work for it. Given that the left lost the Democratic primaries, I'm not sure why the liberals should do anything of the sort, and they might consider the possibility that some of Mark's cynicism is aimed at them as well as at the right. But some of them are impressionable, after all.
Third, I think Mark's candor obscures, or even blinds him to, the complex dynamics involved in forming legal-political views. In the area of religious fraud and the law, I have written that it is a mistake to treat the shepherd and the flock as holding identical views. A minister may mouth doctrinal views insincerely and cynically, while her flock holds those views sincerely and tries to apply them in a principled fashion. The same is true in law--for which, on the whole, thank God. Ideas, once loosed on the world, have a life of their own and cannot be controlled by those who offer them up. Someone who offers a view of judicial restraint because it will advance her current political program will generally try to offer up seemingly politically neutral and compelling justifications for those views. And whatever her own motives in advancing that argument and her insincerity in offering the justifications for her position, some people will find the justifications compelling in their own right and hold fast to them. Some will even maintain those views after circumstances have changed and the center of gravity has shifted, although certainly many will eventually come around to the new center of gravity. Even if, say, liberal originalists or believers in judicial minimalism offered their views for purely political and instrumental reasons, employing their brilliance in justifying those views only as political tools, many liberals will believe those brilliant arguments even if their progenitors do not. Indeed, some of the progenitors will end up buying their own arguments; the most powerful form of deception is self-deception. Maybe the people who end up sincerely believing in those arguments are naive; if so, two cheers for naiveté. The best safeguard against sudden volte-faces of the kind Mark argues for here is the work that is put into justifying those instrumentalist arguments in the first place, including framing them as sincere and politically neutral, and the inevitability of many people taking them seriously in their own terms. Conservatives eager to take Mark's post as evidence that liberal legalism is a sham and that every liberal legalist is in on the sham should take these dynamics into account, and vice versa.
As for Mark's recommendations themselves, they are fairly unremarkable. The only thing interesting about them to me is, again, the interesting dynamic of sincerity and cynicism they suggest. Surely many liberals will eventually take some of these recommendations on board. But not all of them will understand themselves to be following Mark's orders, and some would no doubt angrily and sincerely deny it if it were suggested that they were doing just that. A few out there may applaud his suggestions. But if he were, a few years from now, to give a keynote address at the American Constitution Society convention that said the same thing, I'm sure many would regard it as being in terribly bad taste and even insulting. This is, of course, one reason why I like Mark's work so much. A legal academic with political inclinations should always treat upsetting her allies as one of her primary goals, and one way to distinguish interesting legal academics from hack writers of shadow-amicus briefs is to identify those who never do so.
I am also not quite on board with Mark's paragraph about the culture wars. I agree with its "they lost" point in general terms, but not with its specifics; and I think he gives too little awareness to the financial and other motives for the combatants in these wars to continue believing that they are losing or under threat, whatever the truth may be. No one gets donations or galvanizes their base by talking about how well they are doing. Nor is it quite accurate to say, anent the recommendation that liberals take a hard line on culture war issues (aside from any actual substantive and/or normative objections one might have to this recommendation; after all, we continue to have a First Amendment), that doing so "seemed to work reasonably well in Germany and Japan after 1945." Analogies are dangerous in any case, but the premise here seems almost entirely faulty. For one thing, Mark omits to mention that taking a hard line after 1918 did not go so well. For another, the Allies did not take a particularly hard line after 1945--sometimes problematically so, but often for good reason and to good effect. Depending on what Mark thinks constitutes a "hard line," he might remember that the Allies quite rightly concluded that the Morgenthau Plan was punitive and stupid, and that even mention of the idea helped galvanize German resistance to surrender. If one is going to make such an analogy, one should keep in mind the entrenchment risks of a hard line strategy. American soldiers complained that the Morgenthau Plan was worth thirty divisions to the Germans.
Of course, I agree with Mark's last point, and think his advice about Justice Kennedy should apply to everyone, not just the left. Another good way to distinguish the academic brief-writers from the actual scholars is the amount of attention they pay to patching or redoing Justice Kennedy's writing and massaging his ego.
Wednesday, May 04, 2016
Trump and Constitutional Law
Like most members of my class, I abhor the possibility, now much stronger, that Donald Trump will become president of the United States. I tend to be an ambivalent technocrat, and so the notion of a blundering, populist, somewhat authoritarian president strikes me as frightening, if also as somewhat in the nature of just desserts for the mandarin class and its frequent distance from, if not borderline contempt for, substantial segments of the American population. I tend to think that he will be somewhat less frightening in reality than in prospect. Campaigning and governing are two separate activities, and even cult-of-personality campaigners must eventually leave many duties to an administration, some of whose senior officers will be more technocratic than Trump himself and much of which will be overseen by an entrenched civil service. Nevertheless, I do not relish the prospect of his presidency. A name like "New Haven" will take on a more literal and ironic meaning, I should think, if Trump is elected.
I am generally uninterested in law professors' politics, and quite uninterested in discussing my own, and so making such a forthright political statement is not my primary goal here. I declare my opposition to his candidacy simply as background for a more academic point, which is that a Trump presidency would be a goldmine for interest in and study of constitutional law. If he should win the presidency, I venture the following predictions:
1) There will be an immense rebirth of interest in the salutary aspects of federalism and separation of powers--on the ground, in popular conversation, and certainly in legal academic work. "Rights" talk, although never non-existent, will take a backseat to "powers" and "structure" talk. Those liberal federalists, like Heather Gerken, whose work has been admired but perhaps seen as somewhat eccentric from the main direction of constitutional study, will be joined by many new adherents, and there will be considerable conservative-liberal crossover in those fields.
2) Sentiment about congressional gridlock, and especially about congressional gridlock as a justification for creative and unilateral executive action, will shift overnight. Mann and Ornstein will receive many new fans, albeit those new readers will, in effect, mentally convert all the negative adjectives in that book to positive ones. Lawyers and legal scholars who minimized or celebrated President Obama's fairly aggressive use of presidential power will similarly reverse polarity almost immediately.
3) All this is fairly predictable. More interesting to me will be how self-conscious or un-self-conscious the reversal will be. Many legal scholars are both doctrinally grounded--not in the sense that they write a lot about doctrine, but in the sense that their work is grounded on law as a doctrinal tool for action, not on a deeper sense of or attachment to theory--and politically oriented in their work. For such scholars--and perhaps for most of us--things like federalism and separation of powers are purely instrumental tools, to be used as the occasion demands. Given that, I expect that a good deal of this new interest in the value of federalism, separation of powers, and gridlock will be un-self-conscious at first: it will neither acknowledge nor discuss the polarity shift involved. Since some of these scholars will not have written much about structural constitutional law before, they will not have a body of their own written work to fight against, so their shift will be less dramatic, although no less real. Others will barely cite what they have written on past occasions, or distinguish it on questionable grounds.
4) But this will change over time. Constitutional and legal theory change by a process of crude reflective equilibrium. Those of us working in law and religion have had a ringside seat to that phenomenon over the past few years: a slow shift away from an earlier equilibrium happens first more or less silently; then cases with a different set of facts or plaintiffs bring strong disagreement at the level of outcome, and inspire doctrinal criticism; and eventually those criticisms beget new theoretical structures of justification and a shift in the overall center of both theoretical and doctrinal thought. Just so, the newfound interest in federalism and separation of powers as positive qualities will eventually beget new theories to justify and consolidate the shift away from the current center of gravity. How much this happens, and how long it lasts, will depend in large measure on whether Trump (if he wins) secures a second term, and on how much Trump-as-president resembles Trump-as-candidate, and whether both his own inclinations and permanent institutional structures make him less of a populist or authoritarian than people currently fear.
5) As a partial aside, some polling evidence suggests that things like campus activism have contributed somewhat to success of Trump's candidacy. So one possible conclusion will be that the current round of campus and off-campus activism will, unlike most activist movements, have a significant and immediate effect on social change--albeit the effect, with delicious irony, will be the opposite of what most of the activists want. One imagines that the result, over time, will be varied: some activists will question or moderate their attachment to such movements, others will double down on their activism, some college presidents and other establishment figures will lose patience with those movements while others will give them freer rein, and there will be an overall upsurge in polarization around these movements. Students of social movements and social change will have plenty of new data to work with.
Friday, April 15, 2016
At Least Two More Cheers for Counter-Clerks
The up-side of Facebook is that it allows me to quick-post links and ideas I don't have the time or energy to work up for public discussion. The down-side is that lots of fun potential blog posts go missing, or that, while I'm having that conversation in the limited forum of FB, which I did in this case, someone beats me to the punch in the blogosphere. Eric Segall's post on Monday, talking about Justice Scalia, raised the interesting subject of "counter-clerks": those clerks that Justice Scalia hired to provide an in-chambers "liberal" view as a lens for examination and criticism of his views or opinion drafts. Counter-clerks weren't a huge part of his post, which was mostly about Scalia's position on affirmative action and his originalism. But it did evoke interesting questions about counter-clerks. Now his co-blogger, Mike Dorf, has this post talking directly about counter-clerks and raising "two cheers" for them, concluding this way: "The bottom line is that a willingness to hire counterclerks is a modest indication that a judge takes his professional responsibilities seriously and enjoys the company of people who disagree with him, which indicate positive character traits. But that's about all."
There are a couple of things I would say about counter-clerks, but the most important is simply that the idea of having counter-clerks, especially but probably not exclusively at the Supreme Court, is worthy of much more study than it has received. Although I disagree with various aspects of it, I think Richard Posner's book Divergent Paths is right to argue that we need more study of structural, managerial, and other aspects of the (federal) judiciary. It is a valuable subject in itself, the more so as the judiciary has long since become a large, complex institution rather than a disparate collection of, to use Philip Hamburger's term, individual judicial "offices." If one also believes, pejoratively or otherwise, that the Supreme Court is a "political court," it's also useful to think about potential structural responses to this.
None of this requires one to conclude that counter-clerks are a good idea, or an effective one. But it deserves study and attention. As with thinking about judicial term limits, how to sequence discussions or votes in conference, or other such questions, it's useful in asking about the Court as an institution and what institutional features might benefit from tinkering or change. Maybe more so: lifetime tenure is a formal structural rule and thus highly visible, but in most areas legal scholars would observe that all kinds of sub-constitutional rules and practices (like the use of clerks) are at least as important as the formal ones in reflecting and channeling the work of an institution, and need to be studied.
A look for discussions of counter-clerks doesn't turn up very much. There should be more. Maybe every justice should hire a counter-clerk. Maybe it is a failing of the current Court, and the current justices, or revealing of their understanding of their job or of the current moment on the Court, that they do not all have such a practice more or less formalized. Maybe the counter-clerk idea is a good one but there are better ways to do it. It doesn't have to be organized around political ideology, for instance, although the current justices are political and perhaps it's important to have that internal check; but it could be organized around methodology, or as a matter of having a formal "Devil's advocate" clerk, period. And although I think there are fairly good reasons to hire at least one clerk who definitely does not share the justice's politics or methods, it may be that the formal role of "counter-clerk" should rotate among the clerks. In other areas, legal scholars and social scientists (beginning with Irving Janis) have argued that decision-making groups, or advisors to a decision-maker, need a formal Devil's advocate, to guard against groupthink, polarization, epistemic closure, cascades, and so on, and that the role should be rotated to make sure the advocate is not powerless or routinely dismissed. We may want to think more about whether the Court and its use of clerks needs to take the same approach.
After the jump, some additional points informed by excellent comments about this from my FB discussion. As usual, it's tl;dr, so feel free to skip it, although the last paragraph is somewhat interesting.The responses received to my post were interesting and certainly made me think of this question differently, although it doesn't alter my view that the practice of having counter-clerks deserves more attention. Let me list them here. Although I draw on that conversation, no doubt I'm not doing full justice to the nameless commenters:
1) Ineffective. Specifically, the suggestion was made that the imbalance of power between justice and clerk is too great for the counter-clerk position to function well enough. I take no position on this, other to note that it's not unique to this court or to the job of law clerk, and may be even stronger in the case of political appointees in the executive branch who are asked to provide unvarnished advice. I'll also note that it's not specific to acting as a counter-clerk: "normal" clerks may also feel pressure to tailor their work to their sense of the justice's priors or preferences, not in the sense of being a faithful amanuensis, but in the sense of failing to raise (or to spot) questions and criticisms.
2) Justice-dependent. Whether a counter-clerk is effective, or (more on this below) whether such a position is necessary as such, may depend on the justice's receptivity to criticism. A justice might have a counter-clerk but be inflexible in his or her position, or have no counter-clerks but be open to argument from his or her clerks. That seems reasonable enough, but not reason enough not to study the idea of the counter-clerk structure. Also, and this is the point of writers who have talked about Devil's advocate structures in other group deliberation situations, the view that if a bunch of agreeable people work with, and argue with, their their receptive boss/justice in an open-ended non-specific way, they will end up airing all that needs to be aired is susceptible to doubt. Whatever their good intentions, they may still collectively fall prey to groupthink or epistemic closure--indeed, egg each other on into a resultantly polarized opinion.
3) Not necessary on ideological grounds. On this view, justice X is not an ideologue, the chambers never discusses ideology, and so this whole framework is not necessary. I pretty strongly doubt the first two parts of this view. In particular, the fact that chambers discussions are about "the law" and not ideology doesn't say much about how affected they are by ideological priors and other factual and value assumptions. (That's even more true if such a chambers ever discusses "policy" as well as "law," if it's not absurd to distinguish between the two.) And I doubt that Scalia's counter-clerks were asked to talk like liberals at a political convention, so much as they were hired with the knowledge that they thought differently from Scalia on some set of political and/or jurisprudential issues and were then asked to push back as lawyers. But I agree that we shouldn't treat ideology too narrowly here, and we're certainly welcome to think about other bases for Devil's advocacy. Indeed, I think it's the idea of a structural Devil's advocate, rather than a house liberal (or conservative), that is central to thinking about why we might want to have more use of counter-clerks. But given the political nature of the Court and its members on some central set of issues, and the political elements of clerk hiring and the use of feeder judges, it's understandable that ideology is a relevant factor to think about and will often be relevant in the context of the Court. Perhaps our discussion should be about whether justices should, as a norm, hire for political diversity. But I think the counter-clerk question can be separate from that; and many people who think justices have no obligation to hire for political diversity might still think that a counter-clerk is a good idea.
4) What this says about the justices. I got a sense that there was some pushback on the counter-clerk question specifically because commenters thought Justice Scalia's hiring of counter-clerks was taken as a sign of his special or superior virtue, and as suggesting that his colleagues were in some way less virtuous for not doing so. That reaction is heightened if the view is that, despite the presence of a counter-clerk, Scalia voted politically and was jurisprudentially inconsistent. I don't care about the justices as such, for what it's worth, and it is clear to me that the legal profession, academy included and not just former Supreme Court clerks, buys way too much into a "great man/woman" vision of law and history. To an extent, I don't take Scalia's counter-clerk hiring as indicating that he was a terribly virtuous judge or as reflecting poorly on the other justices. To me, that's not the point, any more than one decides the virtues of term limits for justices by pointing to individual stories. I think the counter-clerk idea or something like it is structurally interesting and might be structurally beneficial, and I don't care what it says about the justices as such.
But it's not clear to me that Scalia's practice wasn't a good and praiseworthy practice, or that there is no basis to think the other justices are subject to reasonable criticism for not following it. It does seem to me that many former clerks, and others, are likely to take the practices at the Court when they were working there as reasonable if not normative. I would think the Court's practices are at least as subject to study and criticism as congressional or executive branch practices--probably more. And many if not most former clerks, and others, are resistant to structural criticisms that reflect badly on some or all justices, a tendency about which I've made my views clear on other occasions.
Let me make a last point. The sense in what discussions I have seen is that having a counter-clerk is rendered necessary or useful because the justices hire politically and jurisprudentially congenial people and so need to ensure a certain kind of feedback. A contrary view is that the justices (or whichever justice one clerked for) are open-minded and reasonable and engage in a productive back-and-forth with their clerks. And separately from the counter-clerk question, most people conclude that the justices are heavily influenced by their political priors. So perhaps another structural feature to think about is to get rid of the "elbow clerk" model altogether, or to junk a good deal of it. We could instead have an annual hire (perhaps by someone other than any of the justices) of 36 staff law clerks who can rotate through the justices' offices. It raises administrative questions, of course, but its benefits might still outweigh its costs. Or, for the sake of consistency and ease, one could give each justice one or two elbow clerks and require them to work with the staff law clerks for everything else.
Monday, April 11, 2016
A Jot on Gedicks, Helfand, and the Value and Limits of "Free Exercise" Doctrinalism
Howard is much better about putting up links to "jots" from his corner of Jotwell. Here's a jot from the constitutional law section, by me. In keeping with my urge to mess with the basic format, it's on two articles: Frederick Mark Gedicks's forthcoming article 'Substantial' Burdens: How Courts May (and Why They Must) Judge Burdens on Religion Under RFRA, and Michael Helfand's Identifying Substantial Burdens. Both are excellent pieces and both contain what may, depending on your definition of the word, be substantial discussions of what was thought likely, before oral argument, to be (and may still turn out to be) the principal issue in Zubik v. Burwell. The jot treats both articles as evidence, and exemplars, of a recent and valuable increase in doctrinal scholarship around the Free Exercise Clause and RFRA interpretation, as opposed to Free Exercise theory. I argue that the articles also demonstrate the limits of doctrinalism in this area (and perhaps more broadly). Here's a snippet:
Inevitably, however, both articles also show the limits of doctrinalism—perhaps in general, and certainly in this field. Not all doctrinal scholarship, to be sure, will be subject to the same severe limitations. In particular, one can imagine, and there has been a recent increase in, scholarship about doctrinalism. Scholarship recommending reforms in current doctrine, though, inevitably requires some sense of the metric against which those reforms will be measured and the values they are meant to serve. In a stable field or one with a highly specific statute, there may be substantial consensus about the relevant norms and values. But law and religion is not a stable field. The constitutional text is old and general; RFRA itself contains broad terms like “substantial burden,” and incorporates the highly contested caselaw of the Free Exercise Clause. And disputes in the field today suggest division over basic values and over the allocation of power between church and state, questions that may have been answered by prior cases but cannot settle them. Doctrinalism can channel such questions but it can hardly escape them. Questions of theory, and of policy, which also involves theory, are unavoidable here. . . .
None of this, of course, is meant as a fatal criticism. Law must be implemented as well as theorized. Too abstract a focus on theory will not provide us with adequate tools to implement that theory; and too frequent a recourse to first principles will deprive the law of stability and predictability, and steer judges’ and scholars’ time and talents away from the kinds of technical questions at which they have a comparative advantage. It makes sense that law—scholars’ law and judges’ law—will sometimes engage with higher-order questions, but that its primary development will often be smaller and more doctrinal. Questions of implementation are important, and a body of good legal scholarship can add considerably to the improvement of doctrine. Both Gedicks and Helfand contribute mightily to this task in the area of substantial burden doctrine. Their articles are both models of good work in this field. In deciding Zubik, I would not be surprised if different factions on the Court appealed to one or both articles. In the end, though, you cannot build a better mousetrap unless you have a sense of what the goal of trapping mice is, and what balances must be struck in doing so. Zubik itself, and both articles, turn on larger questions of theory, policy, and power that are unanswerable by appeals to doctrine itself. Both articles are well worth reading, and neither can tell us how to choose between them.
As I say in the jot, both articles are well worth reading. (So is another article written on essentially the same topic and at about the same time, Chad Flanders's Insubstantial Burdens. As they say in Shakespeare in Love, good title!)
Wednesday, April 06, 2016
Yes (With Caveats), Publishing a Book Review is Still a Worthwhile Endeavor for Untenured Law Professors
Following up on Chris's follow-up post, and with due appreciation for some of the points made in the comments there, my answer is yes, it is still worthwhile for untenured tenure-track law professors (an unwieldy phrase, but I don't like the increasingly common "pretenured": it may be accurate, given tenure rates, but there's a whiff behind it of unnecessary language massage and an unwillingness to hurt anybody's feelings by suggesting that anyone might not deserve and get tenure) to publish book reviews. Sure, there are cautions to be registered and prudential concerns to consider. But, as a general matter, it is still worthwhile.
The primary reason I think it's worthwhile for untenured law professors to publish book reviews--and, given time limits, the only one I want to focus on--is that I think it's worthwhile for tenured law professors to publish book reviews. Good books in one's field are, well, good, and in my view better and more rewarding than good but long articles. Engaging seriously with a good book can be an intellectually rewarding experience, and part of the way we engage is to write. It is also rewarding, especially in a field in which the currently dominant conventional law review article form is so imperfect, to experiment with different genres and forms of writing. All of these things are as true for untenured law profs as they are for law profs. It makes sense, up to a point, for untenured professors to be given sound professional advice that includes practical and pragmatic advice. But it also makes sense not to put the cart before the horse, and to be wary of the prospect that prudential advice of this sort, offered initially in a regretful, don't-like-it-but-that's-how-it-is way, will become reified and perpetuated, and that people will slowly build normative justifications around it. There ought to be room for serious book reviews in any genre of scholarship in which books are relevant. That should be true for tenured professors. And, in principle, just about any scholarly activity that might be valuable or rewarding for tenured professors, and certainly this one, should be valuable or rewarding for untenured professors.
I agree that given limited time and attention, there are reasons for untenured professors--or some of them; others write and publish a ton--to focus on what needs to get done, not just what they want to do. I don't find that terribly compelling as a general piece of advice, and it's becoming ever less compelling. The tenure clock is relatively long and has, I think, gotten longer rather than shorter. More people are coming out of doctoral studies or fellowships and, depending on what they've negotiated, already have at least one piece towards tenure. Even those whose prior publications don't count toward tenure at least have gotten some practice writing in their field and won't have the same start-up needs that someone coming in cold would. And, frankly, the number of significant pieces demanded for tenure is not huge, and doing a book review shouldn't be a make-or-break factor.
I also agree that untenured professors might want to build up some experience, skill, wisdom, and so on before writing a book review. But here too I think the conditions of the industry have changed. Whatever sense this makes in general, we can at least say that many entry-level law professors have put in some time on their subject, and published in the area, even before entering the tenure track. There's thus less reason to think it's presumptuous of them to assay a book review. Of course they should write the review as modestly as is appropriate given their relevant skills and limits. But that's true of articles as well, despite the not-infrequent immodesty of articles by entry-level profs (immodesty that is indeed noted, if forgiven, by more elderly readers in the field). Finally, one can understand that an untenured professor might want to select projects for impact and to build a voice and reputation. I think good book reviews can do that too, but I agree that articles (and, um, books) are the best way to achieve that goal. On the other hand, building a reputation should be secondary to the scholar's primary interest, which is to do scholarship. An untenured writer who thinks a book review is the right project to pursue, that it is the lesson he or she must learn or the contribution he or she must make, should worry about that first, and let reputational concerns take care of themselves. I think it is at least possible that there are people who internalize lessons about how to build a famous reputation very well, and do everything right, but little that's truly worthwhile. Better, I think, professionally speaking, to ask what your scholarly mission demands of you; if the muse tells you that the answer is "write a book review," write it.
Perhaps all this is obvious and just goes without saying. I think it is and does. I also think the prudential advice on which people usually focus when asking these questions is mostly pretty obvious too, for that matter. I wouldn't have bothered writing about this. But, whatever the intention of the post or individual comments, I worry about the framing being such that untenured professors convince themselves that "scholar" is not a category with its own imperatives, but rather that there are two distinct categories of scholar: "untenured scholar" and "tenured scholar." I think it's important to reject that view, and that conditions are easy enough for most untenured law professors (if they get the job, which is really the hard part) that there's room enough to focus on the normative "oughts" of scholarship and not just the practical "ises." Indeed, I worry that in the legal academy many entering (and senior) academics hear, know, talk, and think more about the "ises" of scholarship than they do the "oughts."
Friday, April 01, 2016
New SSRN Paper: Five-Second Rules vs. Five-Second Standards
New today on SSRN is my draft article, Five-Second Rules vs. Five-Second Standards. It follows indirectly on my work on biases and heuristics in and epistemological questions concerning the First Amendment, as well as my interest in non-legal authority, although the proximate inspiration for the paper was more personal. Of special note is that it is the first paper to address this question in the legal literature. Here's the abstract:
The study of non-legal social norms has opened up new vistas for legal academic engagement with a variety of phenomena that, although not expressed through positive law, nevertheless have powerful implications for the facilitation and regulation of social conduct. Many of the epistemological, behavioral, and normative questions raised by positive law are placed in close relief when examined in the context of other forms of “law.” An enduring question in law is the “rules vs. standards” debate, and an enduring element of the “rules vs. standards” debate is the question whether the two stand in stark opposition to one another or exist on a continuum of ruleness and standardness. I examine this question, and raise others, through an interrogation of a classic, well-accepted, rule-like social norm: the “five-second rule,” which posits that it is acceptable to eat food that has dropped on the ground, provided that it has not remained there longer than five seconds. This is the first examination of the five-second rule in the legal academic literature, although it has been discussed in other fields.
The heart of the Article is an empirical study—the first such study in the legal literature. At a law school faculty lunch, a close count was kept of subjects’ responses upon dropping food on the ground. A variety of scenarios were involved, including inadvertent food-dropping by the experimental subjects themselves and a series of planned incidents in which the tester arranged for a sub-optimal number of cookies to be offered for dessert, and then conspicuously dropped a particularly attractive chocolate chip cookie on the ground and signaled that anyone wishing to pick it up was welcome to it. Preliminary results revealed three things: 1) most subjects observed the five-second rule, but not closely, with subjects indicating a willingness to pick up and eat food as long as seven or eight seconds after it had dropped on the ground; 2) despite prevailing norms of cooperation and civility, subjects were willing to fight, to the point of wanton brutality, over the last cookie; and 3) the primary variable affecting willingness to pick up food past the five-second point was the subject’s number of years in teaching post-tenure. Indeed, in situations where food remained on the ground past five seconds, a statistically significant cohort of senior professors waited until the room had cleared following the event, and then returned when they thought no one was looking to pick up the food and take it back to their offices. This experiment, relying as it does on a limited and non-representative sample of experimental subjects, in a situation far removed from standard real-world environments, and despite multiple failures to replicate the result, offers highly significant results that are easily generalized to suggest—for the first time in the legal literature—dramatic descriptive and normative implications.
Following a lengthy recitation of the experiment and its results, this Article spins out a number of novel conclusions appearing in this Article for the first time in the legal literature. First, and somewhat counter-intuitively, it turns out that even the five-second “rule” is, in fact, a standard. This suggests that even carefully reticulated rule specifications do not and cannot eliminate room for careful situational judgment and discretion. That conclusion has important implications for a variety of laws and social norms, including speed limits, Chevron deference, and the categoricalism vs. balancing debate in constitutional law. Second, interrogating the five-second rule has important implications for the question whether compliance with legal rules and social norms rests on an adequate epistemological or policy basis. The five-second rule remains a powerful constraint on conduct despite the fact that the rule has little basis in scientific fact and relies heavily on behavioral heuristics untethered from sound policy. Moreover, and despite its disconnection from sound or rational behavior, the rule itself reifies wider disparities and inequalities in access to relevant information. Studies in other disciplines show that while only 56 percent of men surveyed were even aware of the five-second rule, fully 70 percent of women knew of it. These gendered disparities demand additional study. Finally, and in keeping with important recent work on “sticky norms,” “sticky slopes,” “sticky defaults,” “sticky knowledge,” “sticky expectations,” “sticky metaphors,” and “sticky compliance,” the Article is the first in the legal literature to argue that the five-second rule is itself an example of a “sticky rule.” Literally.
Friday, March 04, 2016
Kende on Berger on The Rhetoric of Constitutional Absolutism
At Jotwell, Mark Kende has a "jot" about Eric Berger's recent article, The Rhetoric of Constitutional Absolutism. I very much enjoyed Berger's comprehensive article, which describes a tendency toward rhetorical confidence and certainty in Supreme Court opinions, even (or especially) in divided opinions, in which the opinion "conten[ds] that a particular constitutional statement is either absolutely true or false" and confidently "insist[s] that a case has only one possible correct constitutional answer" and "often depict[s] a case as easier than it is." Berger offers several pretty convincing accounts--"strategic, institutional, and psychological"--of why this rhetoric happens, although he might have said more about the role of law clerks and the "chambers style" of an institution that relies heavily on them for opinion-writing. It is not surprising that he concludes that it is a problematic style, but he commendably totes up the benefits as well as the costs of this rhetoric. Kende offers a clear, quick, and sensitive description of Berger's article and concludes by saying that "Berger has given us a superb article that suggests that there would be much value in the Supreme Court writing less absolutist and more nuanced candid opinions."
As Kende notes, there is an interesting existing literature relevant to Berger's article (which Berger certainly cites). I recommend especially Emily Calhoun's book Losing Twice: Harms of Indifference on the Supreme Court, and, before that, Robert Burt's The Constitution in Conflict. Calhoun's book also has a wonderful set of bibliographic essays on the topic.
Wednesday, February 17, 2016
Do Law Clerks Need Empathy?
Here is a very well-done remembrance of Antonin Scalia by Joan Larsen, one of his former clerks and now a Michigan Supreme Court justice. I've written frequently, and most recently here, that "[t]oo many former law clerks in the academy retain an adolescent love of their judges," that the kind of filial piety the clerkship relationship often induces becomes a lifelong and unhealthy habit in them. I still think that's true, but I'm not a total monster, and this is a lovely account. It raises a specific question for me I thought I'd air. Larsen writes:
Justice Scalia believed in one simple principle: That law came to the court as an is not an ought. Statutes, cases and the Constitution were to be read for what they said, not for what the judges wished they would say. Each of his opinions needed to conform to that principle and to be written clearly, forcefully and accurately. If you could help him with that, you were useful to him. If not, then not . . . . As impatient as he may have been with our missteps, he truly valued our input. He had no use for sycophants. He wanted to get things right; and, therefore, he valued clerks who would argue with him about why his initial thinking might be wrong. If you could prove your case, you could win him over. But it could not be done with appeals to emotion, or outcome, or legacy, or anything else. The only way to convince him was to show him that the law was on the other side (usually by peeking nervously over his shoulder as he read, and questioned, and then reread the cases). My proudest moment as his clerk was convincing him, with two sleepless nights of research into dusty old precedents, that a criminal defendant should win a case that none of the justices originally thought he should win. I’m pretty sure that was the moment he was most proud of me, too.
Conspicuously absent here as a desideratum for law clerks is empathy. There's plenty of talk and debate, and no doubt there will be more soon enough, about the value of empathy in judges. The law review database in Westlaw shows over 750 uses of "empathy" within the same sentence as "judge" or "judicial" since the turn of the century. But there is virtually no discussion of whether law clerks ought to have the quality of empathy. A search in the same period for the word "clerk" in the same sentence as "empathy" yields only 16 hits, most of which are irrelevant and the rest of which involve clerks remarking on their judge's empathy. There are, this crude search suggests, no discussions in this literature, at least not in those terms, about the relationship between empathy and law clerks.
That's pretty striking and suggests a nice, unanswered question for someone to follow up on. For one thing, the literature on judges and empathy is already at the saturation point. For another, most people write on the assumption that clerks are something more than mere amanuenses, if something much less than full partners in the enterprise, and that they at least sometimes bring something to the job other than mere mimicry of their judges' own views; and there's probably plenty of overlap between people holding those views and people who believe that empathy is an important quality in judging. Without overstating it, I think the question whether law clerks also need empathy is an interesting and overlooked one.
That doesn't mean the answer to the question is of an intricacy proportioned to its interest, but the answer might have interesting implications. As a first cut, there are two obvious answers here, with two different sets of implications. The first, obviously, is "no." Judges decide cases. Empathy may help them decide them better. But law clerks are not the decision-makers. Their job starts after the vote and consists of something between being an advanced amanuensis, writing as the judge would write, and being a cite-checking machine. If that's right, then the implication is that we should avoid the temptation to (over-) glorify the importance of law clerks, and also perhaps that we should take a more circumscribed view of what law clerks' duties are or should be. It also suggests something about judges' uses of law clerks. And perhaps it says something about their tenure too: If empathy is an important quality for judges, then when a judge has reached the point at which he or she leans heavily on clerks even at the voting stage and gives over the writing of opinions substantially to the clerks, then that judge is no longer capable of providing the added value that his or her empathy and experience brings to the process, and should leave the bench.
One problem with this answer is that it is hardly fully consistent with what many law clerks actually do. They do a lot of the reasoning that publicly explains a judge's vote. Especially in some cases, like "screeners," they may do practically all of it. And Supreme Court clerks also have a substantial pre-vote role through their participation in the cert pool, as well as in briefing cases before oral argument. Empathy is important, on some views, not only in deciding how to vote, but in explaining the outcome to the winners and losers--especially the losers--and to the public. In some cases, perhaps a law clerk's empathetic understanding of a case can even influence or change the judge's vote.
If that's the reality, and/or if that's your normative position, then perhaps the answer should be "yes." Empathy is an important quality in law clerks, and should be one of the selection criteria for judges in selecting them. Perhaps it should be especially important in an era in which federal appellate judges and Justices are cast from a narrow mold--elite school-to-elite practice-to-elite lower federal court judging--and thus may need law clerks to provide some of the empathy that might not flourish in such a circumscribed existence. The implications of this position are arguably problematic too, however, quite apart from the question whether it delegates too much of the judicial task (if empathy is a key part of the judicial task) to law clerks. Law clerks are generally chosen from within an even narrower and more elite-favoring pool than judges. Just as important, empathy is not a question of background alone: it's a quality that develops with exercise and experience, something that law clerks necessarily lack. Maybe those who believe empathy is an important quality for judges ought to advocate for hiring law clerks who are not only diverse in background but older and more varied in their lifetime experience. Or maybe, interestingly, those who believe empathy is important for judging should be arguing that law clerks ought to be much more limited in their duties--that they really should be glorified secretaries and cite-checkers, and that their role in both pre-vote work, like the cert pool, and post-vote opinion writing, must be more limited than it often is today.
Saturday, February 13, 2016
Good News for Long-Winded, Caveat-Spewing Canadian Legal Bloggers
A fun and interesting article about how to change people's minds, based on a study by Cornell researchers titled "Winning Arguments: Interaction Dynamics and Persuasion Strategies in Good-faith Online Discussions." A couple of findings: The researchers "find that longer replies tend to be more convincing, as do arguments that use calmer language," and "they find that hedging – using language like 'it could be the case' – is actually associated with more persuasive arguments. While hedging can signal a weaker point of view, the researchers say that it can also make an argument easier to accept by softening its tone."
Friday, February 12, 2016
A Comparative Critique of "The Ultimate Unifying Approach to Complying With All Laws and Regulations"
In the new Green Bag, Daniel Solove and Woodrow Hartzog have an article titled "The Ultimate Unifying Approach to Complying With All Laws and Regulations." It's described here. This is the SSRN abstract: "There are countless laws and regulations that must be complied with, and the task of figuring out what to do to satisfy all of them seems nearly impossible. In this article, Professors Daniel Solove and Woodrow Hartzog develop a unified approach to doing so. This approach (patent pending) was developed over the course of several decades of extensive analysis of every relevant law and regulation."
As with Orin Kerr's A Theory of Law, the fun lies largely in its brevity and in the slight surprise involved in clicking through to the article. (This also means that people who want to get the joke have to download it from SSRN, at least for now and until now. It already has over 1,500 downloads.) I honor that here by offering the standard "SPOILER" alert here and continuing after the jump, where I reveal the approach, take it seriously, and critique it at slightly greater length than the article itself.Not including the abstract, the article reads, in full:
So, how well does this approach work? Of course, like most people, I like it and try to live it, albeit more for moral and ethical reasons than out of a desire to avoid legal consequences. I find it intuitively attractive as a general Golden Rule for living under the law. Insofar as it cuts through the fog, and through reams of paper, to find a common-sense conclusion, I like it for that reason as well. Still, I'm pretty dubious.
One reason is empirical. As Solove's colleague Cynthia Lee notes in her book Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom, different individuals and communities may have different views about what constitutes reasonableness, and/or about what the reasonable member of a community would consider reasonableness. There is a large literature out there calling for more empirical study of the application of the reasonable person standard, although my quick tour through it suggests that there have been more calls than responses.
Another is, roughly speaking, political and sociological, although it's related to the empirical point. The United States is a highly pluralistic society across any number of dimensions, including political views relevant to questions about how a reasonable person should comply with the law--reasonably; with an eye toward a default assumption of minimal state power and individual liberty; with avoidance or avoision in mind; loyally; purposively; and so on. There are also varied views, exacerbated by the increasingly polarized and heated division over politics and culture, about the substance of individual laws, and that's likely to create inconsistency in and between individuals over whether a particular law or legal rule should "reasonably" be interpreted broadly and purposively or narrowly and literally.
One might have less reason to worry about all this if the official interpretive community were sufficiently homogeneous in its views of the "reasonable person" to allow such a standard to be interpreted consistently. Decisions by judges and other legally trained officials would then be consistent, and decision by juries would likely be subject to some judge-imposed constraints. Individual actors would "be reasonable" according to their predictions about what judges, lawyers, and government officials, or maybe the professional/managerial class more generally, consider reasonable. There are obvious problems with this, however. One is the simple question whether the class of people subject to the laws is able to make these sorts of predictions. Another, lying somewhere between descriptive and normative concerns, is whether such predictions will be more difficult if there is a widening gulf between the professional/managerial class and others. On the normative side of the line, asking such a question raises obvious concerns about political legitimacy.
All that aside, is it accurate to describe the relevant interpretive community in the United States as sufficiently homogeneous? Views differ, but I don't think so. Notwithstanding complaints that the legal profession is not sufficiently diverse, it is already (or also) the case that there is a great deal of variation and conflict in the political, social, and cultural views of lawyers, a conflict that plays itself out, among other things, in debates, divisions, and polarization within the legal community that parallel the debate and polarization within the broader political and civic community. Because law in the United States is so often political, and so many lawyers and legal thinkers are content or eager to treat it as such, or believe that they must do so rather than "unilaterally disarm," that condition is not going away any time soon. Any society, or legal interpretive community within that society, in which there is strong disagreement over something as fundamental, simple, and vital as how to interpret a statute is not well-suited to live by the injunction to "be reasonable."
This brings me to an interesting (to me, admittedly) comparative point. Other legal interpretive communities do operate by various "be reasonable" rules. In Canada, for instance, courts often quote Elmer Driedger's book (now carried on by Ruth Sullivan) on the Construction of Statutes and its description of the "Golden Rule" of statutory interpretation: "Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament." This is essentially an injunction to "be reasonable" in the interpretation of a statute, and Canadian courts have regularly said as much. Similarly, Canadian constitutional analysis, like judicial constitutional review in many countries, relies heavily on a proportionality test, and there too reasonableness is a linchpin of the analysis. It is sometimes lamented that American constitutional doctrine is not conducted more explicitly in terms of reasonableness, balancing, and proportionality, and Justice Breyer, among others, has argued that it should be.
My sense as a former member of the Canadian legal interpretive community, however, is that however well reasonableness functions as a guide, much of that success has to do not with the test, but with the homogeneity of the interpretive community. It's a big country, of course; moreover, one often associates it with the split between Quebec and the rest of Canada, or between English-speaking and French-speaking Canadians. My take, however, is that Canadian law, government, and administration have generally been overseen by a smaller mandarin class within which there is a fair amount of cultural similarity and political consensus. There are about 23 law schools in Canada, of which say 17 are of reasonable long standing and establishment and among which the "tiering" is nowhere near as strong as among American law schools. A larger number of faculty within those schools come from outside the country than was the case when I was a student in the early 90s; still, there is a substantial amount of cultural and especially political consensus, and unity and similarity of training, among them. And the same kind of relative educational, cultural, and political homogeneity also characterizes the political/administrative managerial class more broadly. It is still largely captured by people with similar educations and views, coming from or having lived in a relatively small number of major Canadian cities: Toronto, Vancouver, Montreal, Ottawa/Hull, maybe a couple of others. If you think "Washington" is an epithet for people captured by the Beltway culture, and are struck by the tiny number of law schools responsible for producing our Supreme Court justices, you're right. But even so, the legal and political culture here is relatively diverse and divided, even within DC, compared to the Canadian mandarinate, and notwithstanding other ways in which that group has become diverse along other dimensions such as race, ethnicity, and religion. And the American professional/managerial class lives, works, and disagrees in many other places than Washington.
Indeed, from my distant perspective, one of the most interesting and salutary things about the rise of the Conservative Party in Canada was that it revealed a gulf between the mandarin culture and at least some of the regular citizens in at least some of the regions of Canada--especially the West, which, Vancouver and Victoria aside, has different views and much less Ottawa-based political representation in the political class than the Toronto-Ottawa-Montreal nexus. That's not to say I shared that party's views. As a Torontonian and a member of the professional/managerial class, I lamented the death of the much more "reasonable" Progressive Conservative Party; and, if I didn't much care for the Liberal Party given its ideological vagueness and the inevitable corruption that afflicts a party long used to power, I was generally comfortable being governed by it, for similar reasons. But it was interesting and, I think, valuable to see the West take a greater share of the political power from which it had generally been frozen out, and to see the ways in which the views of the country were different from those of the average entrenched deputy minister. That idea ought to resonate some. We are, after all, seeing a political season in which revolt against the United States's own professional/managerial establishment and its shared values and assumptions is a major element in the successes of challengers in both parties.
In short (hah!), if a "be reasonable" rule works in Canada, and perhaps in other countries that also rely on things like proportionality, it may be not because there's much content to or value in the rule itself, but because the class interpreting it already shared a substantial consensus and worldview. I suspect that such an interpretive community would have reached similar results and consensus if it had instead adopted a fairly strict rule of textualism as the approach to interpreting statutes, and a more originalist and/or categorical approach to constitutional interpretation--that, indeed, textualism, originalism, and categoricalism in legal interpretation could all be undertaken more successfully in that legal culture than they could be or are in the United States. It may also have something to do with the degree to which law is or isn't consistently made a vehicle of "politics" there, compared to the United States.
I will make explicit what I've already implied: in such a country, if the professional/managerial class shares a strong political and cultural consensus but the consensus is not shared across the country and some regions, classes, and views are absent or shut out from that class, then there are good reasons to think that even a 'successful' "be reasonable" legal interpretive regime there has serious political legitimacy problems. But neither those problems nor the day-to-day stability and consistency of the interpretive regime have much to do with the approach to legal interpretation that this class adopts. And American champions of things like proportionality, balancing, and "reasonableness" as interpretive tools--for rules, statutes, constitutional questions, and other issues--who point abroad for examples of the value and workability of such a system should dig deeper into the homogeneity of the legal classes charged with administering those systems, and into how representative and politically legitimate they are. In any event, and despite the many ways in which we already live under something of the rule of a professional/managerial class here, as people often complain, the United States is too culturally and politically diverse for "be reasonable" to be a sufficient guide in general, however well it functions for individuals. However much people like me are attracted to "be reasonable" as a guide, and however much it looks like plain common sense, we should also recognize the degree to which the proposed rule is heavily freighted with politics--and the politics of a particular class, at that.
I grant that this is a slightly lengthier critique than the article itself. If I were doing it Green Bag-style, I suppose my response to the Solove/Hartzog article would be, "It's complicated--and political."
Wednesday, January 20, 2016
Divergent Paths, the "Posnerian Clone Wars," and Two Takes on Legal Education
In the New Rambler Review, which incidentally is a great resource, today's example notwithstanding, I have a review of Richard Posner's new book, Divergent Paths: The Academy and the Judiciary. Here's my summary of the book's thesis:
The federal judiciary suffers from many flaws, not least “a certain staleness in the current judicial culture.” Some flaws are structural; others involve poor management of the judiciary as a whole and of individual courts and judges; a third set concerns “deficiencies in how federal judges decide cases and justify their decisions in judicial opinions,” including a mechanical formalism and an unwillingness to confront openly the task of solving complex problems. Some of those flaws are fixable. The legal academy could do a lot to help. But it hasn’t, and won’t, unless it fixes some flaws of its own. Its central shortcomings are its increasingly academic nature and its lack of interest in understanding or communicating with judges. “There really is a gulf between these two branches of the legal profession, and the gulf has been growing.” A “focus on practical instruction” in legal education would “create a greater faculty interest in judges,” especially those beyond the Supreme Court, and narrow the gap.
And here is my basic assessment:
In Divergent Paths, [readers] will find much that repays their time, but I’m not sure they will find a rewarding book as such. They will find “too much”—a “gallimaufry,” as he says (wonderfully) of a quote by Laurence Tribe—and also not enough: several books not one, sometimes conflicting in diagnosis and prescription, and too often wandering into fun but unfocused irrelevancies. . . .
Duncan Kennedy famously wrote that legal education is a machine for the reproduction of hierarchy. Divergent Paths wants to turn law schools into a device for the large-scale industrial cloning of Richard Posner himself. . . . I agree with most of Posner’s diagnoses and many of his prescriptions; I admire his work as a judge and a scholar; I wish more judges, lawyers, and law professors were like Posner. But all of them? By the end of the book, one can’t help recall a scene in the movie Being John Malkovich, depicting a world with nothing but Malkoviches. Even a world filled with first-rate Posners would be an unsteady place; one filled with inevitably less capable people, taught nothing but how to emulate him, would be calamitous. Whatever legal academics’ job is, it can’t be that.
After the jump, I offer more substantial excerpts. One suggestion I make toward the end of the review is that instead of making recommendations for the future of law schools based, by his own admission, only on his knowledge of the elite law schools, Posner should have considered the possibility of "more tiering of law schools, not just as a matter of rankings but in terms of the role and strengths of different kinds of law schools. It’s also surprising that the book doesn’t consider the possibility of separating legal academic study from legal professional training, with fewer, less highly compensated, and more academic legal scholars teaching in departments of law, and more practical, doctrine- and instruction-oriented academic lawyers working in law schools." [For what it's worth, I have taught at five law schools, and in a week will begin a visit at a sixth, representing all "tiers."] I also write:
In focusing on the shortcomings of individual elite law professors while insisting that the whole legal academy serve as glorified valets to the federal courts, [Posner] ignores another possibility. Two features, above all else, distinguish elite law schools from lower-ranked schools: money and resources. What separates Harvard, Yale, or Stanford from most law schools is not the presence of airy theorizing or Supreme Court clerks, both of which can be found elsewhere. It’s that these schools have accreted a large number of generously funded centers and institutions, staffed with affiliates, fellows, and administrators, a number of whom have significant expertise in useful disciplines. Individual tenure-track faculty members at the elite law school faculties are now just the visible tip of a much larger corporate enterprise.
These varied centers now mostly serve as a research and advocacy arm of legal liberalism. They do some impressive work, no doubt. But it’s not unique work; and, varied and piecemeal as they are in their activities, they don’t achieve half as much as they might if they were properly coordinated. With their resources and ability to hire dedicated and qualified staff, and with more forethought and direction, the elite law schools could do a lot to study the kinds of questions Posner thinks are central to the improvement of the federal judiciary (or other branches of the profession). They would certainly be better qualified at this job than the general run of current law faculty. They would also be more qualified than the practically oriented faculty that he champions in his conclusion. Rather than retrofit the law schools into a rag-tag version of the Federal Judicial Center, why not build from existing and potential resources to fit the right tool to the job? In his compulsion to remake the judiciary and law schools in his own image, Posner’s usual Weberian instincts abandon him.
I thought, in light of my recommendations, that it would be nice to close this post with a "But see": Rebecca Roiphe's new article, Tilting at Stratification: Against a Divide in Legal Education. The abstract states, in part: "Critics suggest we divide law schools into an elite tier whose graduates serve global business clients and a lower tier, which would prepare lawyers for simple disputes. . . . The article draws on [ ] history to argue that there are no easy solutions. In order to fix the problems of legal education, we need to address the question of professionalism in general and distill what it is that is valuable about a separate legal profession. The profession should train all our lawyers in those skills. The intellectual and theoretical approach to the law is necessary to both rich and poor clients, therefore, all lawyers--not just those who graduate from elite schools--ought to be trained in the complex nature of the law and its relation to society, culture, and politics."
As with most of Posner’s books, reducing Divergent Paths to a dry précis gives no sense of the genuine intellectual treasures to be found in it. Its pleasures lie in its detours and divagations as much as in the main trail. “Having flailed at the American Law Institute for a few pages,” he writes at one point, “let me get back on track.” Throughout the book he flails away: at individual judges, articles, and ideas, at judicial piety and academic abstruseness, and at many of his other usual foils. He usually hits his target.
Sometimes—more often than usual for Posner—this becomes repetitive; for example, a 75-word passage appears, word for word, at pages 225-26 and 271. Frequently, he descends from acidity to crankiness. . . . [T]he book needed more ruthless editing and greater self-restraint. That extends to his epilogue, added at the last minute to throw in some harsh criticisms of recent Supreme Court opinions. Posner says he “thought it likely that some of those late-decided cases would cast light on issues discussed in this book.” The discussion is more distracting than enlightening—one more punch to throw before last call. It should have been cut.
Many other passages, however, retain the trademark Posnerian capacity to cut to the quick and separate sense from nonsense. . . .
The heart of the book is its pairing of flaws in the federal judiciary and ways the legal academy could address them. Plenty of law professors today are eager for reform recommendations. They should be. Even if the legal economy recovers fully, many reasons for reform will persist. Among other things, law schools make questionable choices in faculty hiring and curriculum, and there is a disjunction between what schools teach and how they teach it, and the practical needs of students, the legal profession, and others.
But even those eager to praise any suggested reform of legal education should take a careful look at Posner’s recommendations. The problem is not their cost. Requiring law professors (like me) to retool or move on is hardly a good reason to resist reform recommendations—if they’re good ones. But the consistency, coherence, and effectiveness of Posner’s proposals are questionable.
There is a strong tension between Posner’s complaints about law schools and his prescriptions for reform. . . . One might think, [given his diagnoses], that Posner’s prescription would be: “Fewer doctorates, more doctrine.” Hire talented young lawyers to teach, and encourage them to do the doctrinal work at which they excel and which judges can understand and use. They won’t need much encouragement, given their particular (and limited) skills and their identification with the profession.
But it isn’t, or not quite. Posner urges that “the judiciary as an institution (as distinguished from its legal-doctrinal output) should be receiving a good deal more attention from the academy than it is.” Judges themselves—their psychology, their priors and incentives, their management techniques—are the rats that must be made to run the legal academic maze. The tools for that sort of study are organizational and psychological: statistics, management, organizational and institutional scholarship, behavioral economics and psychology, and so on. . . . Thus the first item on Posner’s list of recommendations: “Redirect focus of academic scholarship from legal doctrines and particular decisions to systemic and institutional issues.” So the prescription is actually “More doctorates (but aiming their studies at the judiciary), and (even) less doctrine.”
What good will this do? Empirical study of the judicial process and the management of the federal courts would surely yield some benefits. But Posner argues throughout the book that judges can’t understand or won’t listen to this sort of thing. . . . They wouldn’t necessarily do anything about it even if they did listen. The usual problem of horses and water would apply.
The references to rats and horses are apt here. I will add a third animal metaphor. In his book How Judges Think, Posner urged legal and other scholars not to accept judges’ descriptions of how they decide cases uncritically, but to bring an external and interdisciplinary perspective to bear. He wrote pithily, “Biographies are more reliable than autobiographies, and cats are not consulted on the principles of feline psychology.” Going an absurd step further, Divergent Paths aims to turn the entire legal academy into a center for the study of feline psychology. Since he wants law professors not only to study their subjects but to help them, by such tasks as “guid[ing] judges to reliable websites and away from unreliable ones,” he would also turn us into feline therapists and feline concierges. While he’s at it, since he wants judges, unlike cats, to listen to the people studying them, he wants us all to talk to the animals as well, like Dr. Doolittle. There is no reason to think judges would take any more kindly to our observations than cats would, or that the skills necessary for external study of the judiciary would make us better judicial therapists and servants, and vice versa. . . .
There are two more important flaws with the book, both tied together by a certain self-centeredness and the usual human tendency, widely shared by legal academics, to look for one’s keys under the nearest lamppost. The book’s plea for future study of the judiciary is undercut by the certitude, specificity, and oddness of his prescriptions. Posner already seems certain not only of the flaws in the judiciary and legal academy but of their remedies, and this affects his recommendations in bizarre ways. Duncan Kennedy famously wrote that legal education is a machine for the reproduction of hierarchy. Divergent Paths wants to turn law schools into a device for the large-scale industrial cloning of Richard Posner himself. . . .
I agree with most of Posner’s diagnoses and many of his prescriptions; I admire his work as a judge and a scholar; I wish more judges, lawyers, and law professors were like Posner. But all of them? By the end of the book, one can’t help recall a scene in the movie Being John Malkovich, depicting a world with nothing but Malkoviches. Even a world filled with first-rate Posners would be an unsteady place; one filled with inevitably less capable people, taught nothing but how to emulate him, would be calamitous. Whatever legal academics’ job is, it can’t be that.
Finally, Posner’s exclusive focus on the federal appellate courts and the elite law schools is odd. It makes sense to write what you know, but this is a sweeping set of prescriptions for so narrow a scope of study. It leaves out other branches of the legal profession and of government, most of the law schools in the country, and all of the state courts. Narrowing in at the outset leaves him, and us, unable to evaluate whether other legal institutions are in more urgent need of help.
It also affects and distorts his prescriptions. Despite the perverse tendency of the competitive job market in law teaching to create a whole nation of law faculty who mimic their mentors at the elite schools, there has also been a recent increase in differentiation and specialization among law schools, as they are forced to pay more attention to local employment markets. There could, and probably should, be even more of this. Posner notes that faculty at non-elite schools are still likelier to produce doctrinal work, although the snobbery of federal judges (or their clerks) may lead them to neglect it.
Why not build on this? Instead of a prescription that all law schools become judicial study centers, based only on his knowledge of a few elite schools, why not allocate the work more efficiently? Perhaps he should encourage more tiering of law schools, not just as a matter of rankings but in terms of the role and strengths of different kinds of law schools. It’s also surprising that the book doesn’t consider the possibility of separating legal academic study from legal professional training, with fewer, less highly compensated, and more academic legal scholars teaching in departments of law, and more practical, doctrine- and instruction-oriented academic lawyers working in law schools.
In focusing on the shortcomings of individual elite law professors while insisting that the whole legal academy serve as glorified valets to the federal courts, he ignores another possibility. Two features, above all else, distinguish elite law schools from lower-ranked schools: money and resources. What separates Harvard, Yale, or Stanford from most law schools is not the presence of airy theorizing or Supreme Court clerks, both of which can be found elsewhere. It’s that these schools have accreted a large number of generously funded centers and institutions, staffed with affiliates, fellows, and administrators, a number of whom have significant expertise in useful disciplines. Individual tenure-track faculty members at the elite law school faculties are now just the visible tip of a much larger corporate enterprise.
These varied centers now mostly serve as a research and advocacy arm of legal liberalism. They do some impressive work, no doubt. But it’s not unique work; and, varied and piecemeal as they are in their activities, they don’t achieve half as much as they might if they were properly coordinated. With their resources and ability to hire dedicated and qualified staff, and with more forethought and direction, the elite law schools could do a lot to study the kinds of questions Posner thinks are central to the improvement of the federal judiciary (or other branches of the profession). They would certainly be better qualified at this job than the general run of current law faculty. They would also be more qualified than the practically oriented faculty that he champions in his conclusion. Rather than retrofit the law schools into a rag-tag version of the Federal Judicial Center, why not build from existing and potential resources to fit the right tool to the job? In his compulsion to remake the judiciary and law schools in his own image, Posner’s usual Weberian instincts abandon him.
Wednesday, December 23, 2015
"Religious Institutionalism--Why Now?"
Nelson Tebbe and I have a chapter with this title in a forthcoming (and terrific) book, The Rise of Corporate Religious Liberty, edited by Micah Schwartzman, Chad Flanders, and Zoë Robinson. Here's the abstract:
The recent rise of religious institutionalism in Supreme Court doctrine presents a puzzle. After all, the Court has been emphasizing groups at exactly the same moment when social scientists have been showing that Americans are disaffiliating from religious organizations at a rapid rate. What explains this apparent tension? We argue that multiple factors contribute in complex ways to the rise of group rights of religious freedom. But we also tentatively suggest an overarching theme. Once it is appreciated that religious disaffiliation is happening chiefly among those on the left of the political spectrum, it becomes possible to hypothesize that lawyers’ focus on groups and institutions reflects a countervailing impulse among religious traditionalists. If that is correct, then the rise of group rights of religion is happening alongside, not despite, religious disaffiliation. The two developments are aspects of a general phenomenon of polarization on questions of religious freedom.
I should say in the interests of fairness that Nelson was more than generous in keeping me on as co-author. We started the paper together but I was substantially sidelined by illness last year and my contribution to it dropped precipitously. I hope there's a little bit of me left in there, but I would feel bad about not acknowledging publicly that Nelson did the lion's share of the work, with his usual excellence. I was nevertheless pleased and grateful to come along for the ride with him.
Let me offer some thoughts about the paper beyond the abstract, although I think most of them are explicit and/or implicit in the chapter. First, I think the general approach is useful and perhaps too often absent from legal scholarship of this kind. Doctrines emerge, develop, find a receptive audience or wither, and evolve in various ways and for various reasons, some internal and some external: path-dependence within doctrine, changes in the cultural surround or in the legal culture, strategic first moves and reactions to other moves, interest-group politics and funding, and so on. In thinking about these questions, and about where and how doctrine might move, it is valuable, in my view, to think at least somewhat from an internal perspective, but not only from that perspective. That's especially true if one is going to make pronouncements about what doctrinal developments say about our legal or political culture. All of this is more or less obvious, although I think people rarely tease out all the nuances of these relationships, and are especially likely to label strategic moves by those they disagree with as strategic while describing similar moves by their friends as sincere and inevitable. A fuller picture doesn't always emerge in the scholarship, however, both because of reasonable concerns about parsimony--it's difficult to make a single "point" given all these cross-currents--and because, general complaints about this notwithstanding, many legal scholars are still doctrinalists at heart, and/or hold a largely "internal" view of the law. In any event, it's worth noting that such moves can be both strategic and sincere. Arguments in favor of affirmative action in higher education on the grounds of diversity rather than remediation, for instance, increased significantly after the Supreme Court in Bakke channeled legal claims in that direction. But diversity was in the air before that, and even if there was an initial strategic motivation for focusing more on this, individuals and groups in time came to internalize it as a treasured value. Religious groups may have been driven by various developments, such as the Court's decision in Employment Division v. Smith, to push institutionalist arguments, but the idea was hardly foreign to them and, once such claims are made, others will end up internalizing their importance.
Second, I think a key point in the paper is worth underscoring. Religious institutionalism can rise in importance at the same time as, and in part because of, a trend toward religious "disaffiliation and individuation" described in recent Pew polls about religious belief in the United States. One sometimes sees hints or suggestions in public and scholarly literature that the rise of the "nones" in American religious demography undercuts religious institutional claims. That's not quite right, although such a view may find a warm welcome in a legal and political culture that tends to "Protestantize" American religion and the structures that surround it. Reporting to her feckless colleagues on the latest purges in the Soviet Union, Greta Garbo in the movie Ninotchka says, "There are going to be fewer but better Russians." As, and in part because, many religious individuals become less strongly tied to particular church bodies or disciplinary orders, other individuals and groups will become more strongly tied to religious institutions and more convinced of their importance and the value of their maintaining some autonomy, particularly in the face of a legal and political culture that in their view disparages or denies the importance of such associations or sees them as wholly subordinate to the enacted will of the majority. Indeed, one view is that under such circumstances, it may be both more important and less dangerous (because those groups are smaller, and because the idea of exit will be highly visible in the surrounding culture and, as Charles Taylor suggests, more "available" to religious individuals) to allow those groups a space of their own, from which they can generate or preserve norms and ideas that critique the prevailing culture.
At the same time, it is possible that the smaller and stronger ties of these groups, and their reaction to the surrounding culture, may make their beliefs or norms stricter, and their legal claims stronger and likelier to interfere with the general legal regime, including its beneficial aspects. The creation of "fewer but better," or smaller but stricter, religious groups may also, both by making it easier to monitor members and by creating stronger and more isolated enclaves, make exit more difficult for individuals, including vulnerable ones. How to balance these conflicting points is the stuff of the law and its response to pluralism. I would like to suggest, however--and this is not in the paper--that it points to a potential, oft-neglected, benefit of accommodationism: a willingness to accommodate such groups may reduce these groups' polarization and alienation from the general culture and desire to build a strong enclave around itself, and make it less likely that the end point will be one of strong illiberalism and/or insistent isolation from the culture.
Third, it's worth noting that however much particular ideas or strategies may be associated with one side of the debate at particular times, they often have a more complicated genealogy than that, and may well cross political lines at different points. Advocacy on behalf of society's "little platoons" is right now associated strongly with religious conservatives, for example, but in the 1970s, a concern with the importance of these groups could be found across both the left and right. (See chapter 6 of Daniel Rodgers's terrific book Age of Fracture.)
Finally, a couple of reading recommendations, both of them published after the initial drafts of this chapter. For a critical take on religious polling, see Robert Wuthnow's Inventing American Religion: Polls, Surveys, and the Tenuous Quest for a Nation's Faith. And for a wonderful argument that, "both normatively and historically, liberal political thought rests on a deep tension between a rationalist suspicion of intermediate and local group power, and a pluralism favorable toward intermediate group life, and preserving the bulk of its suspicion for the centralizing state," see Jacob T. Levy's Rationalism, Pluralism, and Freedom.
Again, thanks to Nelson for letting me hang out with him on the page, and I hope y'all enjoy the chapter. I highly recommend the book as a whole; it has many great contributors who have turned out some very interesting chapters.
Monday, December 21, 2015
A Review of Andrew Hartman's A War for the Soul of America: A History of the Culture Wars
Andrew Hartman, a historian at Illinois State University, had both fantastic and poor timing in publishing this year his book A War for the Soul of America: A History of the Culture Wars. Fantastic in that the book turned out to be incredibly timely, due to the recrudescence of the culture wars on and off campus; poor in that the book is labeled as history and he doubles down on that label, writing, "This book gives the culture wars a history—because they are history. The logic of the culture wars has been exhausted. The metaphor has run its course." However much they enjoyed the book, reviewers looked around them and disagreed; indeed, they had enjoyed the book because it was so timely.
Here is my review of the book for Commonweal. Given my field and its close relationship to the subject of the book, I was pleased to read it, although I ended up underwhelmed--by the effect his sympathies have on the analysis, by its over-reliance on a particular definition of power and resistance as the primary subject of the culture wars, and by the recent appearance of a similar but, I think, better book, Age of Fracture, by Daniel T. Rodgers. (As a side note, I would add that this and other histories don't give enough attention to the Dionysian side of 60s culture, which was relevant well into the 70s and which has never figured as much in the legal history/theory literature as it ought to.)
In the end, I think Hartman's claim about the culture wars being "history" is actually subtler and more interesting than other reviewers thought, although his claim--that the previous culture wars ended up neglecting questions of class and capitalism that will have to feature more prominently in any subsequent conflicts--should have altered and enriched both his history and the predictions he offers in the book more than it does. I close on a cheery note:
It cannot be a surprise that either liberatory or reactionary movements of this sort sometimes ended up preoccupied more with who would get to be department chair than with deeper questions of social and economic justice. Yet, early on Hartman does not have much patience for those who argued that the left had forsaken its working-class constituency in what he calls “normative America” for a new brand of emancipatory cultural politics. A more patient engagement with this argument would have allowed him to limn the limits of the “New Left” from the start. It might also have given him a little more sympathy, if not for the leading think-tank neoconservatives, then at least for all those bewildered people drifting within “normative America” itself. As it is, although this is not an especially partial or unfair account, there is no doubt where the author’s sympathies lie. Sometimes he conveys these very subtly, but even then they distort the overall picture. The left is described in essentially objective terms, allowed to speak for itself, sometimes criticized, but almost always forgiven. The right, by contrast, is psychoanalyzed and subjected to frequent spot-checks for concealed motives.
Hartman is pleased with the victories won by the “New Left,” but now urges us to place our focus on economic and not just cultural issues. But the culture wars he describes in this book have long conditioned us to see the personal as political and to identify justice narrowly with personal liberation. He is right to think that this approach leaves important issues off the table. But then, it always did. Why, the reader may wonder, does Hartman seem to notice this problem only at the end of his story? And why, as we enter a new era of similar conflict, should we doubt that the same mistake will happen again?
Saturday, December 19, 2015
Donahoe v. Richards, the Shahada, and Education About Religion in Public Schools
In the nineteenth century, many common or public schools, believing that religious and moral education was important but facing doctrinal disagreements within the broad Protestant majority, adopted a practice that John Jeffries and James Ryan call a "least-common-denominator Protestantism" that avoided areas of controversy. In particular, Horace Mann, secretary of the Massachusetts board of education, instituted "a strategy described as 'a stroke of genius.' Mann insisted on Bible reading, without commentary, as the foundation of moral education." Students would simply read aloud the unadorned verses. As Jeffries and Ryan note, this was not at all satisfactory to the Catholic minority or Church officials:
Thursday, December 17, 2015
I see around the web that it's time for year-end book roundups and recommendations, especially for those seeking last-minute gifts and such. Here are a few, not specifically in law and not necessarily published this year.
1) Now available in paperback, Zia Haider Rahman's novel In the Light of What We Know is superb. Booklist calls it an "expansive novel [that] sprawls over the past half-century and has as its primary settings the U.S., the UK, and South Asia. Its nameless narrator is an upper-class Englishman of Pakistani parentage, and its main character and secondary voice is the Bangladeshi-born Zafar, the narrator’s brilliant former Oxford classmate. Our narrator gets ensnared in the banking scandals of the early 2000s, and Zafar in the coterminous conflict in Afghanistan. This is, in part, a novel of international geopolitics going back to American involvement (or inaction) in the South Asian wars of 1971; in part, a novel of global finance; in referential detail, a novel of ideas; and, in addition, a novel of personal relationships in which issues of caste and class figure prominently." It's true that the book is substantially about politics and ethnic identity, but for me its many musings about social class, along with its perceptive depictions of failures of self-knowledge, are what make it worth reading. I'm not much of a reader of recent novels, but I thought this one was terrific. The author studied law and banking in the US and UK and has been both an investment banker and a corporate and international human rights lawyer; the book contains many lessons--not necessarily welcome ones. and they won't be learned anyway--for people of this ilk. James Wood's review, which convinced me to read the book, contains the following passages, which are worth reading in themselves and aptly describe why I liked the book and think it would be good for our usual audience and peer group here:
[W]hile “In the Light of What We Know” is full of knowledge, it is never merely knowing. It wears its knowledge heavily, as a burden, a crisis, an injury. This is because Rahman is interested in the possession of knowledge, and in the politics of that possession. Who gets to be called “educated,” and why? And what does knowledge, in a place like Yale or Oxford (or a city like New York or London), really consist of? Why should three or four years studying classics or economics, in élite and antique corridors, be a qualification for, say, running an N.G.O. in Kabul, or talking authoritatively about radical Islamism or human rights in Pakistan? Rahman is deeply suspicious of our claim to know things, and his long novel attempts to tell us, again and again, that we know much less than we think we do, that intellectual modesty in the face of mystery and complexity may be the surest wisdom. . . .
Even knowledge itself, the novel’s narrator suggests in the book’s final, and distinctly religious, peroration, functioned as a kind of metaphor for Zafar: it was his attempt to find a home. He acquired knowledge—so much of it, and so greedily—not to “ ‘better himself,’ as the expression goes,” but
in order to lay ground for his feet to stand upon; in order, that is, to go home, somewhere, and take root. I believe that he had failed in this mission and had come to see, as he himself said in so many words, that understanding is not what this life has given us, that answers can only beget questions, that honesty commands a declaration not of faith but of ignorance, and that the only mission available to us, one laid to our charge, if any hand was in it, is to let unfold the questions, to take to the river knowing not if it runs to the sea, and accept our place as servants of life.
2) Between some surgery and a fair quantity of pain medicine, last year and this one were somewhat lost, or at least misplaced, years for me. It is fortunate, then, that it was the year I finally "discovered" World War II as an abiding fascination and reading subject. Lord knows the world is almost as full of enthusiastic readers of WWII histories as it is enthusiastic writers of WWII histories. I am embarrassed that I joined their ranks relatively late in life. The gateway drug for me was Rick Atkinson's Liberation Trilogy, which covers the Allied war in Africa, Sicily and Italy, and Western Europe from the time of the Americans' entry into combat through V-E Day. Atkinson was a foreign and military correspondent for the Washington Post before turning to military history, and he is--unlike many newspaper reporters who have turned to book-length journalism--a superb writer, with an exceptional eye for both anecdotes and set pieces. I started for some reason with the third book in the trilogy, whose extended account of D-Day is brilliant. It's largely a clip-job, but an expertly done one, and its detailed endnotes constitute a perfect reading list for those who want to dive into the ocean of WWII history. After this, I dare say you will also want to read everything Max Hastings has ever written on the subject too, and then about the war in Russia, whose savagery and losses dwarfed that of the war in the West, and then about the naval war, and then, and then...Not an entirely fashionable historical subject, but never an outdated one; and given that our legal culture continues to sanctify FDR, reading about the war, about Tehran and Yalta, and about such dreadful figures as Joseph Davies--may his monuments be renamed--provides a nice partial antidote to that.
3) Peter Olsthoorn, Honor in Political and Moral Philosophy. Almost a law book! Certainly relevant for a good deal of current constitutional law. The publisher's description says: "In this history of the development of ideas of honor in Western philosophy, Peter Olsthoorn examines what honor is, how its meaning has changed, and whether it can still be of use. . . . Today, outside of the military and some other pockets of resistance, the notion of honor has become seriously out of date, while the term itself has almost disappeared from its moral language. . . . Wide-ranging and accessible, the book explores the role of honor in not only philosophy but also literature and war to make the case that honor can still play an important role in contemporary life." Bookend this one with Jeremy Waldron's recent Dignity, Rank, and Rights and Joanne Freeman's classic history Affairs of Honor: National Politics in the New Republic.
4) Like everything he has written since Cryptonomicon and Anathem, Neal Stephenson's Seveneves is pretty damn imperfect. But the first two thirds, describing the end of the world and the loss of most of humanity, are tremendous fun.
5) I'm writing about class and the legal academy right now (if "writing" is defined loosely and with infinite mercy), and here are some good books, some recent and starting with several by law professors, that have added usefully to my small store of knowledge on the subject: Lani Guinier's The Tyranny of the Meritocracy: Democratizing Higher Education in America; Sheryll Cashin's Place, Not Race: A New Vision of Opportunity in America; Joan C. Williams, Reshaping the Work-Family Debate: Why Men and Class Matter; Daria Roithmayr, Reproducing Racism: How Everyday Choices Lock In White Advantage; Mike Savage, Social Class in the 21st Century; and a superb older book, Jerome Karabel's The Chosen: The Hidden History of Admission and Exclusion at Harvard, Yale, and Princeton.
6) I'm reading Richard Posner's new book Divergent Paths: The Academy and the Judiciary right now for review purposes, so I won't say too much about it, except the following: it's a natural gift choice for law students, professors, clerks, etc.; it contains the usual full store of enjoyable Posnerian observations and apothegms; and there is a good book, maybe several, contained within the book, although I'm not sure that judgment applies to the book itself.
7) If you have time to kill and already invested some of your weeks and months in the first three volumes, I can recommend the fourth and final volume of Isaiah Berlin's letters, Affirming: Letters 1975-1997. The best volumes, sheerly from a reader's perspective, are the second and third, I think. But for those who are interested in Berlin and value pluralism--and I think pluralism is a subject that is curiously missing from many current discussions of law and religion in the United States, stuck as they are right now on the liberty-equality debate, although it is coming back as a topic--this volume provides a lot of fairly detailed discussion of that subject, as Berlin, in the autumn of his life, answers questions from correspondents, defends and clarifies earlier statements, and, while rarely confessing error, notes the questions his position can't answer.
8) Thomas Vinciguerra's Cast of Characters: Wolcott Gibbs, E.B. White, James Thurber, and the Golden Age of The New Yorker is the newest and lightest of these books and my last recommendation. What can I say? The New Yorker was an endless stream of enjoyable figures, fights, stories, and legends, and they are very well told here. If you haven't already read a stream of books about The New Yorker in its heyday, this is a good place to start; if you have, there's more than enough here that's new to justify reading this one. I'm struck right now, in the middle of reading it, by the loss of two wonderful genres of American literature, of which this book provides many good examples: the letter and the telegram. (In a letter from Ralph Ingersoll to Harold Ross, Ingersoll writes, "The river looks very tempting this afternoon. I suggest--not entirely--facetiously--that you go over and jump in it.") People don't waste their best wit on emails, and anyway they are too afraid of being misunderstood in that affectless medium to risk it. Between the examples given in the book and the everyday example of online media, whether FB or Twitter or the Gawker family, and at the risk of committing the Golden Age fallacy, I am filled with the impression that somewhere along the way, America mislaid its rapiers and stilettos in the dark and picked up bludgeons instead.
Saturday, December 05, 2015
A Brief Update on the "Movie Night" Post
A few days ago I posted about the AALS's upcoming screening and discussion of the movie "Hunting Ground," which deals with campus sexual assault. I noted the seriousness of the issue and my expectation that discussion after the screening would be varied and useful. But I also noted that the movie has received a number of strong criticisms, some of them related to an incident involving a law school that receives prominent play in the movie. I linked to some of those, and to the filmmakers' detailed defenses of the film (while noting that some of their general statements in defense of the movie are "heated but weak"). I concluded:
Given that one of the filmmakers will be present for the screening and discussion, I assume those points will be fully aired. At the same time, given that [writer/director Kirby] Dick describes himself as "both an activist and a filmmaker" (a common feature of many current documentaries and one that raises important concerns, particularly for those of us with more conventional views on journalism), and that one of the film's producers wrote to . . . [a representative of] a potential interview subject, "We don’t operate the same way as journalists — this is a film project very much in the corner of advocacy for victims, so there would be no insensitive questions or the need to get the perpetrator’s side," I thought that people thinking of attending the screening might want to be aware of these criticisms, and better able to explore them during the discussion.
In light of the hope for full and useful discussion--why else screen a movie by activists, one that has been sharply criticized for bending its narrative toward its goals?--I should note this recent story in the Harvard Crimson, in which the filmmakers, inter alia, double down on their attack on critics. Here's the key paragraph from the story:
In an emailed statement, “The Hunting Ground” director Kirby Dick and producer Amy Ziering . . . criticized the Law School professors, many of whom have been vocal critics of Harvard’s recently overhauled approach to handling sexual harassment cases, for their letter critiquing the film.
“The Harvard Law professors’ letter is irresponsible and raises an important question about whether the very public bias these professors have shown in favor of an assailant contributes to a hostile climate at Harvard Law,” Dick and Ziering wrote.
This places the possibility of useful discussion after the screening, and hence, perhaps, the value of the AALS's choice to screen the film at all, in a somewhat new light. (Given how recent the statement is, I of course don't hold the AALS responsible for not anticipating it, although it is probably true that the filmmakers themselves turn out to have been less than ideal panelists.) There are surely more charitable ways to read that statement. A less charitable, but still reasonable, reading is that the filmmakers are, in effect, threatening any academics who publicly criticize the film, attempting to cow them into silence by warning that any statements will trigger efforts to encourage a Title IX investigation of their institution.
Although I doubt they have a leg to stand on, it's an unfortunate approach, to say the least. I hope that AALS members attending the screening will nevertheless feel free to ask any questions they like, positive or negative, and will press the filmmaker on this particular statement itself. I also hope the screening's moderator will make note of this statement before the discussion starts, both out of fair notice to any would-be questioners in the audience, and to make clear the AALS's view that attempting to pre-emptively chill discussion is no way to address an important and pressing issue.
Friday, December 04, 2015
The CIA Learned From the Master
I'm grateful to Rick for posting an excerpt from that CIA document on organizational sabotage. I was surprised, when vast numbers of people started posting it on my Facebook feed, to find that the Slate article talked in general terms about "toxic workplaces" and that my 'friends' who were posting it--most of them academics--did not immediately relate it to university governance. For, as a commenter on Rick's post notes, it is academic governance to the life. It used to be even more so; when academics actually governed universities, and university governance also involved coordination among and between colleges, it could not more closely have resembled the CIA's pamphlet. Now university governance has been centralized and leadership has been assumed by, essentially, professional managers who may happen to have doctorates in some subject. (On the whole, and for all its costs and losses, flaws and absurdities, I think that is both inevitable and a probable improvement.) But it still very much characterizes the governance of individual faculties and departments.
I offer all this by way of pointing out that the much-shared CIA document bears a great similarity to a classic satirical work on academic politics, the Cambridge classicist Francis Cornford's Microcosmographia Academica. Indeed, I wouldn't be surprised if the author of the CIA pamphlet was aware of and cribbed from Cornford's essay. Every denizen, friend, or frenemy of the academy ought to read that short, hilarious, instructive work. I would add that it's short enough to print out and bring along to faculty meetings--mostly to have something to read, but also as a field guide and useful source of advice. (There is also a nice published edition with a historical and explanatory essay--makes a fine Chanukah gift!) Of course it applies more broadly than its original context of academic politics at Cambridge in the late 19th and early 20th centuries--if Wikipedia is to be credited, pieces of it pop up as dialogue in Yes Minister--but the university was its inspiration and it still applies there, at least within individual schools and departments. The CIA pamphlet is fun, but clearly some donnish young analyst recognized that for instruction in such matters, one must learn from the best.
Incidentally, it reminds me of a wonderful quote from the newest volume of letters by Isaiah Berlin. In it, Berlin is describing his friend John Sparrow, the long-serving Warden of All Souls College:
In College, to which he was in a sense devoted, his principal achievement was blocking--with the greatest ingenuity, style and brilliance--the slightest change in its arrangements. He did not always succeed, of course, but his efforts in that direction were wonderful to behold . . . . [Despite occasional opposition on Berlin's part,] I cannot deny that I watched his manoeuvres to outwit and stymie his colleagues with the most fascinated, if somewhat disapproving, admiration. His virtuosity in that respect was, in my experience, unparalleled.
Wednesday, December 02, 2015
Background reading for "Movie Night"
Yesterday the AALS made the following announcement about an event at its upcoming annual meeting:
The AALS Law and Film Series presents feature and documentary films chosen for their cinematic and legal value, identifying film resources for possible classroom instructional purposes, as well as for raising general awareness of law and film. For each of the two nights of film showings, we will present films chosen by the AALS Annual Meeting Film Advisory Committee. There will be brief discussions and commentary in connection with the films. . . .
Friday, January 8, 7:30 pm
The Hunting Ground is a 2015 documentary film about the epidemic of rape on American college campuses. The film follows several survivors of sexual assault as they encounter retaliation and pushback at every level of campus life. It details the lack of effective institutional response as the students discuss the failure of college administrators to support them and the toll reporting these crimes took on their lives. The film reunites writer and director Kirby Dick and producer Amy Ziering, the team behind the Oscar-nominated documentary The Invisible War. Join moderator Professor Jessica Silbey for a discussion after the film with Director Kirby Dick.
Speaker: Mr. Kirby Dick, Chain Camera Pictures Inc.
Moderator: Jessica Silbey, Northeastern University School of Law
I have not seen The Hunting Ground and cannot comment on its merits. It seems worth noting, though, both that the movie is prominently features a case involving Harvard Law School, and that a number of professors at the law school issued a public letter criticizing both the film and its treatment of that incident. They charge in the letter that the documentary "provides a seriously false picture both of the general sexual assault phenomenon at universities" and of the student accused in that specific incident and the process in that case. The Times article also links to this critique of the film, and specifically its treatment of that case, by Emily Yoffe in Slate.
None of this, of course, is meant to question or even to comment on the very serious issue of campus sexual assault, which has been a concern of mine at my home institution. I assume that critiques of the film, and open-ended discussions about how to address the larger issue, will be very much a part of the moderated discussion and that this has always been the AALS's intention. The filmmakers have a response to the professors' letter here and a response to Yoffe's piece here. They are more detailed, certainly, than the responses provided by the filmmakers in the Times story and in Yoffe's piece itself, or here, all of which are heated but weak.
Given that one of the filmmakers will be present for the screening and discussion, I assume those points will be fully aired. At the same time, given that Dick describes himself as "both an activist and a filmmaker" (a common feature of many current documentaries and one that raises important concerns, particularly for those of us with more conventional views on journalism), and that one of the film's producers wrote to the attorney/relative of a potential interview subject, "We don’t operate the same way as journalists — this is a film project very much in the corner of advocacy for victims, so there would be no insensitive questions or the need to get the perpetrator’s side," I thought that people thinking of attending the screening might want to be aware of these criticisms, and better able to explore them during the discussion.
Wednesday, November 25, 2015
Bagenstos and "The Long Arc of the Accommodation Debate"
Howard always does a fine job of promoting his corner of Jotwell; I do not. But here is my con law jot on Samuel Bagenstos's excellent article "The Unrelenting Libertarian Challenge to Public Accommodations Law." Jotwell is devoted to writings that the editors and reviewers "like lots," but one can "like lots" an article that one doesn't entirely agree with, or that is not wholly in line with one's priors. When I can, I prefer to select articles of that sort for my own (rare) jots. So here is a jot on an article that I think superb and that "has troubled me for a year now." It is also, I suggest, one of the first and still one of the best of the current burgeoning line of what I call [anti-] "neo-Lochnerism" scholarship.
A contrary perspective can be found in the same journal issue in this article by Richard Epstein, but my discussion is along different lines. It spotlights the article's arguments and strengths, while emphasizing the implications of Bagenstos's observation that the balance between the "public" and "private," or "civil" and "social," spheres may prove permanently unstable and continually (but not constantly) contested. (In my view, legal academics are therefore unlikely to make unique or lasting contributions to the core conflict.) The strong critical insights Bagenstos brings to bear on previous attempts to fix the line between permissible and impermissible regulation apply well to the libertarian arguments he discusses, but they also apply to the other side of the debate.
One thing the article suggests, by comparison with later articles on "neo-Lochnerism," is that although many current liberal or progressive articles in the law reviews make use of Critical Legal Theory or Crit-type arguments to undermine their opponents and thus attempt to entrench a more egalitarian or progressive legal regime, there is a startling unwillingness in that literature to name CLS as the source of these undermining arguments, and still more reluctance to acknowledge that those arguments might undermine or destabilize their own positions. I should add that this point emerges from a reading of Bagenstos's article against some of the more recent literature; it's not a criticism of Bagenstos's article itself. Such, perhaps, is the inevitable fate of the Crits, who are applauded by normatively oriented legal scholars who are trying to resist some legal regime, but treated as unpersons when these scholars are trying to establish or entrench such a regime.
Some excerpts after the fold. If you haven't already, read Bagenstos's article!
Samuel Bagenstos’s excellent article, The Unrelenting Libertarian Challenge to Public Accommodations Law, has troubled me for a year now. Anyone seeking to elaborate, and in some cases defend and expand, the developments it describes and, I think, implicitly criticizes, must reckon with it. As this Jot argues, however, so must supporters of Title II, who may find that their arguments defending it, and their reassurances about its scope and limits, are equally subject to the undermining logic of Bagenstos’s own critical—or Critical, if you like—argument. As he concludes, the conflict over just “how deeply the antidiscrimination norm may properly penetrate into previously ‘social’ spheres” is a real one, and unlikely to go away, for reasons that apply to both sides in the debate....
No matter their priors, people interested in public accommodations laws can profit a great deal from this article. Libertarians will find much valuable history and analysis, and perhaps an invitation to display greater candor or self-awareness about the nature of their project. Those who champion religious accommodation, even in the realm of public accommodations, for non-libertarian reasons will also find cause for concern here. For reasons both strategic and sincere, few supporters of religious accommodation want to attack entirely the underlying logic of laws forbidding discrimination in public accommodation, at least where race is concerned. Much of their own project consists of efforts to draw reasonable lines between for-profit and non-profit enterprises, or between the public and private or civil and social spheres. In doing so, they will have to reckon with Bagenstos’s article, which reveals the potential instability or incoherence of those efforts.
And defenders of an expansive reading of public accommodations laws, in the face of religious or other challengers and seekers of exemptions? They, too, ought to have reason for concern after reading Bagenstos’s article. That is perhaps the best evidence of its success as legal scholarship, of its genuinely analytic and descriptive nature. This is not simply a liberal critique of the libertarian challenge, but a critical take, drawing on the literature of Critical Legal Studies. Like the public-private distinction, he argues, the distinction between civil and social rights turns out to be “unstable and continually”—we might even say essentially—“contested.” Here, he cites Duncan Kennedy. Similarly, efforts to draw a distinction between commercial and expressive associations are “unstable.” He acknowledges that multiple readings and legal options are available in response to what, quoting Jack Balkin, he calls a “pervasive welfare state.”
Little wonder, then, that “[w]e continue to struggle over the proper placement of the civil-rights/social-rights line, nearly fifty years after Congress and the Supreme Court supposedly laid that distinction to rest.”(P. 1220.) ....
If there is a surprise in the current neo-Lochnerism literature, it is that so much of it relies on Critical Legal Theory’s insights, yet virtually none of it cites the literature, or acknowledges the double-edged nature of those insights. A Westlaw search for articles containing the terms “Lochner” and “Hobby Lobby” since the beginning of 2012 yields 43 results; add “Duncan Kennedy” to the mix and the number plummets to two. One is mostly irrelevant, and the other is Bagenstos’s article. To reveal the instabilities in another’s argument is human; to fail to notice that you have also dug a hole under yourself is, well, all too human. It is telling, perhaps—whether of extreme certitude or great insecurity is not clear—that these efforts to entrench a new liberal settlement routinely deploy the Crits’ analytical moves, but otherwise consign the Crits’ names and works to the memory hole.
Therein lies the relative weakness of the new defenses of public accommodations laws against religious challengers, and the scholarly strength of Bagenstos’s piece. It does indeed suggest a more sweeping arc to the narrative of challenges to public accommodations laws, one connecting past, present, and perhaps future. It does so on a sound basis, mostly without appealing to essentially irrelevant arguments about the challengers’ motives or funding.....
Most important, it recognizes that the instabilities and uncertainties in this area are inevitable and universal. The question “how deeply the antidiscrimination norm may properly penetrate into previously ‘social’ spheres”—whether its limits are substantial, whether the government may override associational choices altogether, or whether the balance rests at some unstable point in between—is and must be a subject of continuing contestation and re-evaluation. Every new era, with its fresh controversies, demands its own renegotiation—if not of the unstable line between “public” and “private,” then of the reasonable reach and limits of state power in practice. Hence the haunting nature of Bagenstos’s fine article.
Monday, November 23, 2015
Platinum Cards of Social Change II
In a post a couple of months ago titled "Social Movements: The Platinum Card of Social Change," I offered some thoughts on a Balkinization post by Mark Graber. There, Graber wrote, "The Constitution of the United States remains an effective means of combatting governmental policies that inflict stigmatic harm on members of the upper-classes, but a far less effective means of combatting government policies that inflict material deprivation on the lower classes." I suggested in response that "Graber's statement would still be largely true if it were extended beyond the Constitution and the courts, to say that social movements are a relatively effective means of serving the social interests of the upper classes, and a relatively ineffective means of serving the material interests of the lower classes." I concluded with this observation/prediction:
One might question whether the current prominence of the Black Lives Matter movement serves as a counter-example. I doubt it. For one thing, it's too early to know how successful the movement will be. For another, it's possible that the movement's greatest tangible reforms will end up being directed toward stigmatic harms shared by African-Americans of all socio-economic levels and not material harms suffered by the poorest in the community. Finally, and I suspect this is true of most or all social movements, at the end one would want to know how much of the actual payout resulting from the movement and whatever reforms it achieves is siphoned off, cy-pres fashion, by more affluent sectors--giving rise to more jobs by professional consultants, for instance, or resulting in foundation grants to think tanks and most certainly to universities and their many institutes.
That sentence was recalled for me the other day by the announcement that Brown University "expects to spend more than $100 million over the next 10 years to deal with issues of racism and diversity at the institution." That announcement, of course, stands alongside Yale's recent announcement of a $50 million diversity initiative--directed primarily at faculty diversity, not at students.
Since my prediction was based on the same historical experiences and tendencies, if not inevitabilities, that underlay Graber's post, there's no back patting involved here. I just thought the Brown announcement, taken together with Yale's and (doubtless, given both genuine sentiment and competition in the elite university market) others to come, was a striking example. One might add the following:
1) This shouldn't be seen just as a response to recent campus protests, I think, but should be seen as a response in some measure to BLM and other protests, debates, and social movements over the past year or so. A lot of the recent discussions have focused on universities and campus issues in isolation, but they should be seen as having some relation to a larger social movement.
2) One needn't approve or disapprove of how private universities choose to allocate their resources to note nevertheless that if the most substantial acts of resource redistribution in response to such movements takes place at elite and/or well-funded universities--and, moreover, is often directed at faculty and administrators rather than students or applicants--this is not, perhaps, a response directed at those institutions or sectors of the population that most urgently need resources and reforms. We could, I suppose, view universities as serving as vanguards of social change; but we could also view the story as one of a form of capture or siphoning of the energy of social movements toward narrower and more elite interests.
3) I say nothing here about the motives of the institutions in question, or of those who end up devoting greater efforts toward, and/or enjoying more success at, resource redistribution within elite institutions than elsewhere. My assumption, however, is that we should apply to the universities' actions the same kind of analysis we would apply to the actions of other large corporations. I assume there is a good deal of sincerity in these actions (just as, in fairness, there is a good deal of sincerity when a tech company pushes for equal benefits for same-sex couples, or a religious closely held corporation sues to avoid complicity in the provision of coverage for abortifacients). But I also assume, as I would with other corporations, that sincerity alone does not result in the ostensible movement of tens of millions of dollars. Presumably there are also intra-institutional politics and resource disputes involved, and possibly these announcements are also efforts to buy peace, occasionally to buy silence or co-opt various actors, and to compete with other institutions in the university market.