Wednesday, November 01, 2017

"Breaking the News": A Review of Franklin Foer's "World Without Mind"

Howard does most of the writing First Amendment writing around here. But I certainly have an interest in the subject, including speech and press issues, quite apart from my interest in law and religion. Some of that has to do with my very brief time in the trenches as a reporter and my time as a student at Columbia's journalism school, which at least back then was a very practically oriented program. Although I think I have been more or less assimilated into the academy, and certainly take seriously (possibly self-seriously) the importance of "academicizing" one's discussion of issues within one's field (to borrow a term from Stanley Fish) when writing as an academic or taking advantage of one's academic title in other forums, a small part of my brain remains that of a journalist, inculcated with its norms and worldview and concerned with the well-being and integrity of that institution. My views on the state of the modern news media and contemporary journalism are not at all positive. On the other hand, journalists operate in a very different and difficult environment today; I'm glad I had my own brief time as a reporter just before the profession was irreparably altered by the Internet.

That is a long way of prefacing a link to this review of Franklin Foer's new book, World Without Mind: The Existential Threat of Big Tech. Foer's primary subject is the harmful effect of the "Big Tech" companies, and their effect on the profession of journalism in particular. Thus, my review provides an occasion to offer some of my own views on what I think is wrong with much of modern journalism, including some major institutions such as the New York Times and the Washington Post, not to mention Foer's old stomping ground, The New Republic. And it's about something more than that: it's about how to interact with a culture that is obsessed with the ephemeral and to, as Foer puts it, "take back the mind."

I argue that "Taking back journalism—rescuing it from algorithms, consultants, opinionated Twitter feeds by reporters, and the obsession with page hits, and returning it to a state of serious, aggressive but disinterested professionalism—is a good in itself, a good for democracy, and a necessary start." But--and I acknowledge the tension here, which is one I experience personally--even that were to happen, I'm not at all sure it's a good thing to obsess with and attempt to keep up with the 24-hour news cycle, or even with, say, a 6- or 12-hour news cycle. That's true, I think even if one mostly avoids the trash and sticks to good writers or publications. There are excellent and even urgent reasons to make journalism better. But there are also very good reasons for cultivating one's own mind away from the noise, and focusing on more lasting and meaningful reading and thinking altogether. That doesn't necessarily mean disengaging from current events. But it might mean that wise and meaningful engagement with current events requires something other than a relentless urge to know and comment on the most up-to-the-minute developments.

A postscript: Coincidentally, Eric Segall today has a post about writing about law in an age in which there is a vast amount of both scholarship and "news" coming at an ever-increasing pace. On the former point, one could do worse than to read the first page of this paper by Mark Tushnet, and to be reminded that much of what purports to be new and improved, or just "novel," in our field is neither. On the latter, he writes:

The other major change for legal scholars is the all-too-real news cycle problem, which is a consideration that barely existed twenty years ago. To be heard over the din today, not only does one need to be smart at both substance and marketing, but one needs to be fast, very very fast. That skill is quite different than being comprehensive, careful, and thoughtful. It used to be that one had at least a year from a the date of a major Supreme Court case to contribute to the scholarly discussion of that case. The only real place to put the case in perspective was the law reviews. Very few professors wrote op-eds or magazine pieces. Today, a week is probably too long.

I have no particular objection from an inside perspective to any of what Segall writes here. It makes a lot of descriptive and practical sense. From a more detached or outside perspective, however, I think there is a lot for thoughtful people to question about these statements. Should the news cycle be a "consideration" for scholars? Should one desire particularly to be "heard over the din?" Why, exactly? What effect on scholars' work, and on their deeper sensibilities and integrity as scholars, might there be in getting "smart at . . . marketing" or "very, very fast?" (Academics these days argue routinely and mechanically that the "corporatization of the university" has had a deleterious effect on the academy and academic work. They like such sweeping arguments but are decidedly less keen on focusing on themselves. If they think that's true at a wholesale level, why wouldn't they be moved to reflect on the individual effects of a marketing-driven approach on their own work?)  If a week is "probably too long" to "contribute to the scholarly discussion" of a case, what does that suggest about the nature or quality of the "scholarly" discussion that takes place within that seven-day period? What's especially scholarly, or even useful, about a "hot take?" Academics often argue in response to such concerns in one of two ways. They offer a dose of realism about "the way things are," which doesn't really answer any of those normative questions. Or they argue that what they do as marketers, entrepreneurs, public commentators, and chasers of latest developments is essentially separate from their longer and larger academic work and has no effect on it, or only a positive one. I'm not at all convinced that's true.    

Again, here's the link to my review. There is surely much to disagree with in it, but I hope you enjoy reading it. I certainly enjoyed writing it.   

 

Posted by Paul Horwitz on November 1, 2017 at 12:11 PM in Paul Horwitz | Permalink

Monday, October 02, 2017

Thurman Arnold and Edward Corwin on the Supreme Court

As the United States Supreme Court gets ready to open another Term, I thought readers would enjoy this quote from Voltaire and the Cowboy: The Letters of Thurman Arnold. No special political or other message is intended here: It's just a terrific quote. It comes from a letter in which Arnold, then a Yale Law professor who had taken a leave of absence from his teaching job to go work for the Solicitor General's office, is describing his first oral argument in the Supreme Court. He is sitting with Edward Corwin, the well-known constitutional law scholar:

Professor Corwin of Princeton who is retained to consult with me on the social security case brief was with me when court opened the other day. He says that they ought to change the invocation from "God save the Government of the United States and this Honorable Court", to "God save the Government of the United States or this Honorable Court." He insists that God can't possibly do both, and he should not be asked even to try. He should be given his choice and let it go at that.

As a side note, Corwin gets the invocation wrong: It is actually "God save the United States and this Honorable Court." But we should not let a good, arguably insightful joke or anecdote get hung up on a technicality.  

Posted by Paul Horwitz on October 2, 2017 at 10:02 AM in Paul Horwitz | Permalink | Comments (0)

Sunday, October 01, 2017

An Absurdly Long Twitter Discussion of the Laurie Goodstein/NYT Story on Amy Barrett, and its Defensive Defenses

The New York Times on Thursday published a piece by Laurie Goodstein about religion and the Amy Barrett nomination, with the awfully vague headline (not written by Goodstein, although it is a fair description of the piece) "Some Worry About Judicial Nominee's Ties to a Religious Group." The story is unclear on whether these "some people" suggested the piece to Goodstein, and if so which "some people" did so. It quotes two law professors, and perhaps one of them suggested the story to her, but reporters go to law professors all the time for the necessary ventriloquism once they have gotten the idea for a story. It also links to a report by the Alliance for Justice, which one assumes does try to feed the occasional story to a reporter and is a more likely suspect. Or perhaps it was a bank shot: interest group suggests story to congressional staffer, who then suggests story to reporter. Or maybe it was just an inspired piece of independent reportorial digging. The gist of the story is twofold: 1) Barrett belongs to a lay Christian group called People of Praise, whose ideas and practices are, to use the standard contemporary language of plausibly deniable accusation, "troubling." 2) Barrett didn't disclose her membership in the group to the Judiciary Committee, "though many nominees" have disclosed similar memberships "in the past."

I hesitated before writing critically about this story at first, despite my interest in these issues, because I thought that point number 2, if true, would indeed be "troubling." The rest of the story was, with respect, weak at best. It certainly did not say anything more about how Barrett would perform as a judge. It quoted one professor suggesting that "These groups can become so absorbing that it’s difficult for a person to retain individual judgment," but that is a rather general statement and not grounds enough for serious concern. (And I wonder how it applies to other groups in general.) Moreover, it treated as significant (and, I think, as a foundation for that law professor quote) the apparent fact that "Members of the group swear a lifelong oath of loyalty, called a covenant, to one another." As many students of religion pointed out after the story was published, oaths and vows of this sort are commonplace within all sorts of religious communities; there is nothing terribly unusual or ominous about that. And the story essentially swallowed whole the AFJ line about Barrett's co-authored piece, now some 20 years old, on Catholic judges and recusal in death penalty cases, a line that many law professors have already suggested misreads that article. It added the AFJ's description of Barrett as having "backed away from that position," which misreads both the piece and Barrett's testimony. The piece ended with a classic suspicion-raising question by another law professor: "I’m concerned that this was not sufficiently transparent . . . . We have to disclose everything from the Elks Club to the alumni associations we belong to — why didn’t she disclose this?" 

My hesitation was unwarranted. The story does not say that Barrett was required to disclose her association with the group, but is worded in such a way that the average reader might so conclude, a reading that is enforced by the professorial quote that closes the piece. But as Ed Whelan has pointed out, "[T]he Senate questionnaire, presumably because of concerns about improper inquiry into a nominee’s religious beliefs (or lack thereof), doesn’t ask about membership in religious organizations. . . . So the simple answer to the climactic question...—'why didn’t she disclose this [membership]?'—is that the questionnaire didn’t ask for it." So the one thing in the story that I thought gave grounds for concern turned out to be ungrounded. And the rest of the story, as I have already suggested, was deeply flawed. It makes it hard to read the story as anything other than a successful attempt, perhaps by an interest group, to plant a flawed critical story about a nominee in a widely read and influential newspaper. If there was a story here, it was probably that, and Goodstein could and should have written about who, if anyone, fed her the story, since that information would have given readers more information with which to judge the story and more of an education about the interplay between interest group tactics and the judicial confirmation process. As a general rule, however, reporters prefer not so say much about these mechanics in their pieces, not least because these groups are useful sources for stories and may insist as a condition of feeding the story that their fingerprints are kept off the story. Reporters should strenuously resist such conditions. 

My Prawfs co-blogger Rick has a Mirror of Justice post criticizing the story. But that's not the end of the matter. Lots of people criticized the story, including many law professors who are interested in religion or law and religion, and who have various positions on that subject and come from various places on the political spectrum. On Twitter, Goodstein defended the story, starting with the line, "Seems my piece struck a chord, given defensive reaction by the nominee's allies on Twitter." As I said, however, it wasn't just "the nominee's allies" who criticized the piece. And their reaction was not "defensive:" it was critical, because they thought it was a poor piece. "Striking a chord," of course, can mean a reporter got something right; but it can also mean that the piece provoked reactions because it was flawed--as her piece in fact was. And, rather oddly, a fellow religion reporter, Daniel Burke of CNN, rode to Goodstein's defense, writing, "Looks like a well-coordinated response" to the piece, naming the Federalist Society as the presumed coordinator. This being Twitter, debate ensued.

Both the piece and the defenses of the piece raised various serious concerns for me, both on the substance and on the general issue of how reporters should or shouldn't use their Twitter feeds. For my sins, I have become more active on Twitter lately. And here is a Storified and collection of my slightly lengthy thread of Twitter posts responding to the debate. It would be long even as a blog post; as a Twitter response, it's Proustian. Clearly, the ballyhooed impending move to a 280-character length for tweets wouldn't have done much to help in this case. But I had a number of thoughts on the debate, wanted to get things right, and wanted to do so in the medium in which the debate took place. The gist of my response is roughly this:

1) Given the nature of Twitter and of contemporary politics and public discourse, doubtless there were plenty of hostile and unbalanced responses to the story. But given the number and variety of people who offered serious and well-grounded critical responses to the piece--especially those interested in law, religion, and the complex relationship between nominees' faith and their fitness for the bench--it's not enough to characterize the critical response to Goodstein's piece as "defensive" or as being about support for Barrett. Many of us just thought it was a poor story--and for good reasons, as I have written above. In particular, once the only genuinely troubling charge raised by the story--the non-disclosure angle--is shown to be dubious, all that remains is a repetition of the errors that have already been made in coverage of this nomination, along with questions about the religious group grounded in suppositions--like the idea that there is something unusual or troubling about communal vows of fealty within religious groups--about which a religion reporter, of all people, should know better. I am not suggesting Goodstein had no right to report and publish the story, or even to have stories fed to her by interest groups (if this is what happened). But it could have been reported much better, shown more knowledge about religion itself, done more to describe the genesis of the story and any interest group involvement in it, and avoided the suggestive and ominous framing and language that suffuses the piece. 

2) Burke's defensive attack on criticisms of the piece was both poor in substance and odd as a general matter. It was odd because a religion reporter need not be defensive on behalf of a colleague or competitor, and should have examined the substance of the piece, which I have suggested was flawed, instead of engaging in blanket accusations about the story's critics. And it was doubly odd because, ideally, when writing on Twitter (or anywhere else), a reporter should either stick to his or her area of expertise or do enough serious reporting to justify any accusations outside that expertise. I can't speak for everything that everyone said in response to Goodstein's story--who could?--but it is clear that many of us who raised serious criticisms of the story were not engaging in a "coordinated" response, whether led by the Federalist Society or by anyone else. Burke's defense of his charge of a coordinated response is weak and in some cases erroneous. And despite its general knowing (and cliched) talk about the Federalist Society as "the real power players in DC" (emphasis added: "the?" Aren't there others?), it betrays little knowledge of how that group actually functions. It is true that there are executives within the Federalist Society who are playing a role in suggesting judicial nominees to this administration, just as other interest groups and "power players" do so in every administration, Democratic or Republican. And it is also true--unfortunately so, in my view--that there are some FedSoc executives who enjoy engaging in DC politics, and use their salaried positions at the Federalist Society as a useful and comfortable perch from which to do so. But, as with the American Constitution Society (which also has some executives who enjoy engaging in "power politics," again unfortunately as far as I am concerned), the ground-level experience of members of those groups, including law professors, is far more mundane than that. When I, for one, join either group (I have been a member of both groups at various times, depending on how I felt about paying dues in a given year; although I don't always do so, I prefer to join both groups or neither at any given time), it has more to do with wanting to receive the groups' publications than with their views. I don't get instructions or suggestions from either group, and if I did I would ignore them. Serious critics of the Federalist Society understand the difference between what a few of its executives in DC get up to and how the group as a whole operates, and the minimal influence it has on many or most of its members. There are things one may dislike or worry about with respect to either group--personally, I am not at all crazy about the elite networking aspects of either group, or about judges or hiring committees or anyone else using membership as a proxy or as a qualification or disqualification for clerkships, teaching jobs, judicial nominations, and such--but one ought to have some understanding of those groups rather than lazily treating them as bugaboos. Burke is a religion reporter; there's no reason for Burke to know any of this. But he should have done the work of reporting on it before launching accusations. Failing some serious reporting, he could and should have remained silent, or focused on the substance of Goodstein's story alone.

3) There is a broader question here that troubles me greatly: How, if at all, should non-opinion reporters (or reporters for partisan news outlets, or opinion columnists for that matter) use their Twitter feeds? I was a journalist, very briefly, and happily before the rise of social media and the current desperate straits of major and minor media institutions. I remain interested in the profession and its troubles. It seems clear to me, both from their conduct and from the various newsroom memos floating around and from media reporting on the subject, that reporters these days are positively encouraged to have Twitter feeds, and possibly encouraged to make those feeds exciting or controversial, rather than simply using them to link without commentary to their published work. Much of that pressure comes not just from editors, but from people on the other side of journalism's church-state divide: publishers, marketing departments, and various business-side news industry "consultants." It's clear that even many "straight" news reporters feel free to opine freely on Twitter, both within and beyond their actual expertise and with or without doing the reporting work to support their opinions. I can understand the "why" of the matter, which includes media institutions' desperate desire to survive in a fragmented, social-media-heavy environment, in part by seeking "eyeballs" and attention. But I think these tendencies encourage serious departures from journalistic professionalism and ethics and, for the sake of short-term gains, end up eroding trust in those institutions and imperiling them and their practices in the long run. I appreciate that my brief time in the profession came long before the rise of social media. But when I was doing things, the norms of the profession encouraged reporters to ignore or resist pressures coming from the non-editorial side of the business, to avoid public opining, and to stick to their knitting. If I had been told back then that in addition to reporting and writing for my paper, I would be expected to trawl for eyeballs by starting a Twitter feed and keeping it "interesting," and especially if that pressure came from someone on the non-editorial side of the organization, I would have ignored the instruction and possibly told that person to go to hell. Some of the most successful and prominent journalists on Twitter and other social media, including those whose positions at major media institutions mean they have some power to resist such pressures, have clearly chosen a different path. I think it's the wrong path. As I write in my collection of Twitter posts:

Individual journalists in non-opinion positions (and those with opinion positions as well) urgently need to seriously rethink the nature of their use of Twitter. They need to resist far more strenuously the temptations and seductions of having a social media "platform." They need to push back far more against editors, publishers, "consultants," marketing and business departments, newsroom memos, and peer pressure urging them to do and say more than they should on social media.

Read it all--if you have a couple of hours to spare. (I should note that whatever substantive problems it has, my collection of Tweets has one or two other errors. I refer "John Leo" rather than "Leonard Leo," for example. Mea culpa. I am duly aware that if I had written the screed on the blog rather than Twitter, I would have been able to correct such errors. And I'm aware that the piece's length violates every norm of Twitter, although I'm very happy to violate the norms of Twitter--a medium that I despise, despite my increasing use of it. That I use Twitter at all is, I hope, a matter of weakness, not hypocrisy.)  

 

Posted by Paul Horwitz on October 1, 2017 at 09:01 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, September 20, 2017

The Obvious Irony of Chemerinsky on Barrett and Feinstein

In the circles in which people comment, and then comment on commentary, and so on, and in which some of these writers treat this activity as as an earnest, important, and influential form of politics, as opposed to a conventional practice or habit with no strong justification outside the practice itself, Erwin Chemerinsky's latest op-ed (as of yesterday, anyway) will get some attention. It defends Senator Dianne Feinstein for having questioned Seventh Circuit nominee Amy Barrett about her religious beliefs and/or about an article of which she was effectively the junior co-author some 20 years ago. I wrote about that questioning here.

The problem is not that Chemerinsky is wrong as such, in broad terms. As I said in my post and have written elsewhere, in my view not all questions about a nominee's religion or religious beliefs and how they apply to the performance of an office are wrong or violations of the Religious Test Clause. The problem is that beyond this very general point--one that is shared by some but not all conservatives, and certainly many serious conservative commentators--the op-ed is vague and unhelpful, does not get to the heart of the question, and is possibly disingenuous. The proposition that it can be valid and permissible to question a nominee about his or her religion in a relevant way does not affect the question whether particular questions are fair, legitimate, or helpful. Chemerinsky writes that criticisms of Feinstein have "mischaracterized her questions." Doubtless some have: It's a big and unimpressive Internet. But anyone who has read John Garvey and Barrett's article and Feinstein's questions, as well as the changeable defenses Feinstein later offered for her line of inquiry, should understand perfectly well that the primary problem is that Feinstein's questions mischaracterized the article. Nor do Chemerinsky and some other defenders of Feinstein recognize adequately, if at all, that even if there was some valid basis for asking questions of some sort, it is possible to do so in a way that explores the question productively without discussing religion much at all, let alone making such a hash of it. Feinstein and some of her colleagues did make a hash of it. The "dogma" line will quite rightly be hung around her neck for the remainder of her career. Defending her right to question Barrett on these topics does not demand a defense of the particular questions she asked or the language she used. It certainly does not require one to ignore the mischaracterization of Barrett's article, a mischaracterization which after all served as a primary basis for asking the questions in the first place. 

I think it is pretty clear that the real raison d'être for Chemerinsky's op-ed is its last paragraph, and especially its last sentence: "The attack on Feinstein is misguided because it mischaracterizes her questions and ignores the basis for them. I fear that it is a smoke screen by the right to take attention away from a very conservative nominee that Trump is trying to put on the federal appeals court bench."

I am not here to defend all the critics of Feinstein, or to deny the possibility that some of these critics were motivated--by politics, by money, or what have you--in their criticisms, or that for some of them the underlying concern was to get Barrett confirmed. Given the nature of politics, that is all but certain, although it is also true that many people were genuinely offended by Feinstein's questions and especially her language. The irony, of course, is that, especially in the absence of a definition for a phrase like "very conservative," it seems more likely to me that almost the precise opposite of this statement is closer to the truth. Barrett is dangerous to her opponents not because she is "very conservative," but because she is highly confirmable. More than that, she is potentially confirmable for an eventual Supreme Court seat. And she is confirmable precisely because she is not easily characterized as "very conservative," and certainly not as an extremist, a thoughtless conservative, a careless and irresponsible ideologically oriented lawyer or legal academic, etc.

If senators allowed themselves to openly and publicly reject nominees on the basis that they don't want smart and responsible people who meet conventional criteria for judicial appointment but are nonetheless clearly (or possibly) "conservative," or "liberal," on the bench at all, we would need fewer smoke screens from either side. It would not be necessary to paint confirmable nominees as "extremists" or "very conservative" or "extremely liberal" or anything of the sort. The results might or might not be better, but the process would be more efficient and more honest. And with that honesty would come greater and more direct political accountability for the senators themselves. (In the case of Merrick Garland, for instance, Republican senators could have said, "We have the right to block this excellent nomination and are going to do so, period," without stretching for dubious justifications and historical precedents and muddying and harming public and political discourse. Their political fortunes would stand or fall on the blunt assertion of a right to block Garland, a clearly qualified liberal nominee, and without the defense of questionable justifications for doing so.) 

As it is, current convention demands that we act as if reasonable and conventionally excellent nominees should be confirmed almost as a matter of right. That in turn incentivizes senators, commentators, and--not least--groups that depend on extreme claims of urgency or emergency to fundraise and justify their continued existence to paint many excellent nominees as "extreme," "outside the mainstream," and so on, or to turn molehills into mountainous disqualifying "scandals, which also involves lengthening the duration of the nomination process as they dig through every jot and tittle for a usable "controversy." It's a lousy system, in my view. But the irony of Chemerinsky's last paragraph remains. The problem with the Barrett nomination, and the reason for Feinstein's questions, some of the criticisms for those questions (which were also fairly subject to honest criticism on the merits), and Chemerinsky's own defense of Feinstein is not that Barrett is a "very conservative" nominee and some kind of symptom of Trumpism. On the contrary, it is that Barrett may be a conservative and would count as a fine and confirmable nominee by any president, for this or a "higher" judicial office. If there is a "smoke screen" involved, it is in pretending otherwise. 

 

Posted by Paul Horwitz on September 20, 2017 at 10:44 AM in Paul Horwitz | Permalink | Comments (14)

Friday, September 15, 2017

Conference at Marquette Law: The Ethics of Legal Scholarship

I write today from Marquette Law School in Milwaukee. (Milwaukee's airport, incidentally, contains Renaissance Books, easily the best bookstore in any airport I have ever seen. Milwaukee: Come for the airport bookstore, stay for the actual city!) Thanks to the hospitality of the school and to organizers Chad Oldfather and Carissa Hessick (I am a kind of junior co-organizer to them), we are holding a two-day conference called "The Ethics of Legal Scholarship." 

The issues, obviously, are plentiful, from what and how one writes to the substance of the scholarship to the publication process. The framework for the conference is a little unusual. The Marquette Law School is generously going to publish the symposium results. And we hope to lead off the symposium issue with what one might call a Draft Restatement of the Ethics of Legal Scholarship: A general set of principles, norms, and rules that do or should describe what constitutes ethical conduct for and in legal scholarship (and perhaps, although this will be a matter of discussion, what ethical norms ought to apply to "non-scholarly" work, like op-eds or amicus briefs, that might not constitute "scholarship" but are written under the title and ostensible authority of the scholar). That's the plan; whether it will happen or not remains to be seen. And having some kind of Restatement does not preclude the participants from publishing separate concurrences, dissents, or comments on that document. Indeed, the "admission ticket" papers already produced by the conferees are excellent and varied in their views and approaches.

This is a subject of great interest to legal academics and (some) others. I think it's fair to say that in conversation, law professors agree widely that there are ongoing problems and issues with legal scholarship, some or many of which could be characterized as professional "ethical" problems. It's also fair to say, I think, that those private conversations are much more candid, and often much more cynical, than the public discussions. There are understandable and perhaps forgivable reasons for that split between public and private discussions, but the more of a gap there is between the state of the public and private conversations, the more it demands to be addressed publicly and candidly at some point.

I'm excited about this conference, which has been in the making for some two or three years. I'm grateful to Chad and Carissa for organizing it, to Dean Joe Kearney for his generosity in having Marquette host it, to the Marquette Law Review for its interest in supporting and publishing the symposium, to the Marquette staff, and not least to the participants themselves.

I'm leaving the comments open. Obviously, this is the kind of post that lends itself to unserious responses, or responses that are perfectly serious but obvious or unhelpful. "Oxymoron," "contradiction in terms," things of this sort: they could end up being true, but we're all familiar with them already, and we've already resumed the conference room for the next couple of days. For those who thing the conference and its Restatement approach already assume too much or are undertaking an impossible task or the wrong task, let me reassure you that one of the conference participants is Stanley Fish, so I'm sure there will be opportunities for general skeptical questions and the throwing of assorted bombs.

But I, or we, would be grateful for comments offering more specific ideas and proposals. For instance, one might expect comments: 1) identifying ethical problems in legal scholarship that are given too little attention; 2) identifying the most important or urgent ethical problems in legal scholarship, even if they are already given attention; 3) asking questions about the definition of "scholarship" or "legal scholarship," what counts as legal scholarship, and what kinds of norms, if any, should apply to writing by law professors as law professors but outside scholarly forums, such as tweets, blog posts, "law professors' letters," op-eds, and so on; 4) proposing specific ethical norms for legal scholarship, especially those that might, as it were, be part of a Restatement or code of the ethics of legal scholarship; and 5) raising general questions, positive or critical, about what the conference should try to achieve or whether it is possible to achieve anything at all. Your contributions and suggestions and questions are appreciated. As far as I can while the conference is ongoing, I'll keep an eye on them and bring them up at the conference where they are helpful. I may offer a couple of posts along the way, or after the fact, summarizing particular aspects of the conference and the discussion.     

 

Posted by Paul Horwitz on September 15, 2017 at 11:05 AM in Paul Horwitz | Permalink | Comments (25)

Thursday, September 07, 2017

Again With the Religious Test Question

There were some real gems in the questions and statements of senators at yesterday's Senate Judiciary Committee hearing for Seventh Circuit nominee Amy Coney Barrett. (Full disclosure: I was a visitor at Notre Dame for one semester some 11 years ago. I did not see much of Barrett, but I believe I socialized with her a couple of times.) As usual, they concerned religion and its relationship to judging. I must acknowledge up front that I am cobbling together the quotes from various sources, some of them from distinctly partisan media outlets. I would have preferred to draw them from ostensibly nonpartisan outlets, or obviously ideologically tilted outlets that are still treated as reliable news sources by the intelligentsia, but I did not find any reports in a (cursory) search of those outlets, nor have I found a transcript. In particular, I draw on a story in the Daily Caller, despite my general distaste for that paper. I am interested in the statements, of course, not the sources. I worked with what I could find. (For background purposes, here is a story from The Hill.) If you have links to a transcript or to other reporting on the hearing, you are welcome to provide them in the comments. 

1) Senator Dianne Feinstein questioned Barrett on the 19-year-old article "Catholic Judges in Capital Cases," on which Barrett was listed as a co-author with John Garvey; she assisted Garvey with the article when she was a third-year law student. The focus of the article is, as the title suggests, the death penalty. Feinstein's questions appears to have had more to do with abortion, although I would want to review a full transcript to see whether that is entirely accurate. Speaking about that and other statements by Barrett, Feinstein said in a kind of awkward, Yoda-like fashion, "When you read your speeches, the conclusion one draws is that the dogma lives loudly within you. And that’s of concern when you come to big issues that large numbers of people have fought for for years in this country."   

2) Senator Dick Durbin questioned Garvey (and Barrett's) use of the phrase "orthodox Catholics" in the article. (The phrase, incidentally, is generally used in the article to refer specifically to federal judges.) The report puts it this way: "Senate Minority Whip Dick Durbin of Illinois took issue with Barrett’s use of the term 'orthodox Catholics' as it appears in her article, to the extent that it brands Catholics who do not hold certain positions on capital punishment or abortion as heretical. [para.] 'Do you consider yourself an orthodox Catholic?' Durbin asked." Durbin later offered this explanation for his question. 

Speaking after the hearing, the senator — himself a Catholic — told The Daily Caller News Foundation that Barrett has written at length about the role of faith in public life, which warrants questions about her views.

“I prefaced my remarks by saying that going into a person’s religion is not the right thing to do in every circumstance,” he told TheDCNF. “But she’s been outspoken. As a law school professor at Notre Dame she has taken on the tough challenge of how a person with strong religious beliefs becomes a judge and looks at American law.”

“So I think she has fashioned herself somewhat of an expert and I didn’t feel uncomfortable asking that question,” Durbin added.

As usual, some of Barrett's defenders on and off the Senate raised the Religious Test Clause of Article VI of the Constitution.

As I have written before, I think the best reading of the legal application of that clause is narrow. (In looking at the abstract for this article, I note with shame that I used the strategic "first article" trope. Mea culpa. People do foolish things when they're young.) The paradigm case the clause addresses involves various English test acts that required putative office-holders, among others, to avow or disavow particular religious beliefs, under oath, as a condition of entry into that office. Insofar as such statements under oath were taken seriously as a religious matter, these test acts were particularly significant. For the most part, either that Clause was a success in eliminating this problem, or social and political changes rendered it less important. (It is nice to see that various legal commentators are now taking the oath clauses of the Constitution more seriously, although I'm not sure they're doing an especially good job of it, or that they are doing so non-selectively, or that those who have argued that the oath clauses are judicially enforceable are right.)

For the reasons I've offered in the article linked to above and elsewhere, I don't think it's a viable rule, or one required by the Religious Test Clause, that nominees can't be questioned, or even selected or opposed, based on their religion. To quote from the abstract, "There are many plausible reasons why a President or Senator might validly inquire into the faith, or religiously derived beliefs, of a nominee." If, for example, a nominee for head of the EPA has stated a religious belief that the world will come to an end in precisely six years, and opined that the imminence of that event means we should use up all our natural resources now and not bother conserving them for the future, that is certainly a valid subject of questioning, and of opposition. There are more current and potentially controversial possibilities. Some broad-brush critics of Islam have argued that a correct reading of the Koran suggests that the faithful or, to use an apparently problematic term, "orthodox" Muslim may lie to non-Muslims. I will not bother citing either those assertions or the many arguments against them. It is evident in any case that it is not an accurate empirical account of how most Western Muslims generally understand or practice their faith. But if a Muslim nominee had publicly asserted a belief that Muslims can and should lie to non-Muslims in order to advance the faith, including lying for purposes of achieving the political supremacy of Islam in the United States, it is hard to believe that the Test Clause would utterly preclude questioning the nominee about this statement or even voting against him or her. The question might be ignorant and offensive, but not, I believe, unconstitutional.

I offer two or three observations about the latest kerfuffle. I generally do not favor expanding the legal operation of the Religious Test Clause by analogy or by reasoning from some ostensible underlying "principle" behind it. But nothing prevents us from questioning and criticizing questions of the sort asked yesterday, as what we might call a matter of "constitutional etiquette" rather than constitutional law. Both the senatorial statements quoted above are excellent targets of criticism.

Let us give a highly charitable reading to Feinstein's Yoda-like quote and assume that she means "dogma" as a term of art and without any intention of triggering the suspicion and hostility that the word seems to evoke for some unlettered individuals. (If so, it's hard, it seems to me, to square it with Senator Durbin's complaint, but that's a matter for the two of them to argue, I suppose.) I can well understand why Catholics and others might take such language less charitably, and in an age in which so many phrases are accused of being "dog whistles," this statement seems like a strong candidate for the "dog whistle" accusation. But I am generally chary of "dog whistle" accusations, and in any event want to be charitable here.

The question is still unhelpful enough that it ends up being doing more to cast suspicion on Catholic nominees generally than to illuminate anything important about this nominee. What one might reasonably want to know is whether, when, and how often a judicial nominee might consider herself obliged to recuse in cases, for whatever reason. It is possible to ask that question in a way that explicitly mentions religion, but with great care and sensitivity and attention to the various relevant nuances, including an awareness that we are multiple and not single selves, that we negotiate the relationship between our beliefs and the world in a complicated way, and that how even believers in a "dogma" actually carry out their faith in a particular role is equally complicated. But history suggests it's hard to do that well, and that few senators are capable of it. It's also possible to ask the question in a barer, non-religion-specific way, asking the nominee whether she can carry out her duties as a judge and decide cases impartially and leave herself open to different arguments and outcomes, and whether she will recuse in cases where she finds she cannot. It is likely that one will receive a boilerplate assurance from the nominee, although it is conceivable that the nominee will offer a fuller, more serious answer to the question. And one can still disbelieve the answer and vote against that nominee no matter her assurances. But the question itself is probably better asked in a simpler, non-religiously-oriented way, and a reasonable senator should not discount the very real likelihood that the nominee's answer that she will judge fairly and impartially is accurate, whatever the senator thinks is the nominee's "dogma" and its relevance to her performance in office. (I leave to one side the question of what we would consider necessary grounds for recusal in particular cases, and whether, for instance, we should approach with equal suspicion any nominee who has spent years working with deep conviction for a particular side of an important cause. I could imagine cases where the public statements of a pro-choice advocate would be so strong and categorical that one might question the ability of that nominee to judge such cases impartially. I could imagine a reasonable, although not necessarily correct, decision to vote against such a nominee. But I would hate to turn that into a blanket conclusion that anyone who has been an advocate on particular issues is unfit for judicial or other governmental office.)      

Durbin's question was also silly, if not offensive. I actually don't take issue with much that he said after the hearing, although his post-hearing statement was not without its problems. Being the junior co-author of a 20-year-old piece is not much by way of fashioning oneself as "somewhat of an expert." Treating being "outspoken" as a trigger for such questions is not ridiculous, but it has troubling effects, encouraging people to bracket their statements about or witnessing of their faith and treat religions as a private matter, the kind of thing you do on Sunday or at home, preferably in a closet or underground bunker, and ignore or conceal the rest of the time. And while he is not wrong, in my view, that "going into a person's religion is not the right thing to do in every circumstance," it raises questions about when he thinks it is the right or wrong thing to do and whether that approach is fair and consistent or partisan and opportunistic. Still, given what I've said above I am fine, over all, with what he said after the hearing.

The question at the hearing is a different matter. It may be less significant than Feinstein's question, but it is also less related to his actual task, and thus more objectionable. Durbin may take issue personally with some Catholics' insistence that there is such a thing as orthodoxy in the faith, and (although I don't know or have any reason to believe that this is Barrett's view) that it is better to be orthodox than heterodox. But that is a religious concern, not a concern about the fitness for office of a nominee. Pace Senator Sanders, religious believers are allowed to think that some fellow practitioners are heretical or unsound in their beliefs and practices. Other religious believers are allowed to object or take offense to this. But all this has little if anything to do with the reason for the hearing, and almost everything to do with an intra-faith dispute. Asking someone under oath whether they are an "orthodox Catholic," in the context of an objection to a possible religious belief that there are correct answers to certain questions within the faith, is pretty darn close to the core concept of a test oath, even if I think it is better to criticize the question in terms of constitutional etiquette rather than constitutional law.

As a sidebar, I should note that Durbin's question was also, not to put too fine a point on it, kind of dumb and unfair. Footnote 8 of the Garvey/Barrett article--which is about capital punishment, remember--defines "orthodox Catholic" very carefully to mean "simply one who holds as correct the teaching of the church's magisterium about capital punishment." "Above all," the footnote emphasizes, "we do not with to imply that one's orthodoxy (or heterodoxy) with regard to this point of doctrine entails anything about the soundness of one's judgment or religious behavior in other areas." It's not very fair, to say the least, to "take issue" with the use of a phrase that is carefully and explicitly defined precisely to avoid making any judgments about the sincerity or soundness of disagreement among Catholics on various issues of faith and doctrine. Incidentally, given that definition, Durbin could simply have asked Barrett, "Do you believe capital punishment is morally wrong under particular circumstances? And if so, can you judge such cases fairly?"

As a final observation, I make no claims of actual animus against Catholics, or "orthodox Catholics," whether defined correctly in the context of that article or otherwise, on the part of either Feinstein or Durbin. Statements--especially statements by candidates and office-holders--can have various motivations, meanings, readings, and nuances. Where there is some policy basis for asking a question or making a statement, it is especially difficult to draw firm inferences about the sentiment behind the question or statement. Such statements can also be opportunistic: having some plausible grounds, or mistaken grounds that are not intrinsically objectionable given the mistake, but also taking advantage of how the speaker thinks some of the audience might receive it, or at least enjoying a kind of double-effect from the multiple readings of the statement. Feinstein, for instance, could have knowingly used "dogma" correctly and more or less sincerely, and with some reason, while knowing that some voters would understand it differently and more ignorantly or hostilely and that she might derive some political benefit from this reading. I'm talking about politics here, not law, and people are freer in those circumstances to draw inferences as they please. But intelligent and informed people should understand how difficult it is to do so carefully and correctly, and be cautious about doing so. In law, they should be even more aware of these difficulties, and more unwilling to draw inferences about motive or animus based on statements by politicians or office-holders, when those inferences will have a judicially enforceable legal effect. As a general rule, I think we are better off focusing on legal outputs than inputs in such cases.       

Posted by Paul Horwitz on September 7, 2017 at 10:28 AM in Paul Horwitz | Permalink | Comments (17)

Sunday, September 03, 2017

How to Mark Judge Posner's Retirement

Howard has already shared the news of Richard Posner's retirement from the bench. I have written several posts about him and published a couple of reviews of his recent books here and elsewhere in the past few years, and although (or because) they seem entirely relevant, I won't link to them here. I will, though, repeat one thing I have said often: Posner was and is easily my favorite contemporary legal writer, whether in his opinions or in his academic and other writings, although I have pointed to what I think are notable and increasing problems with those writings in recent years. Other than where great rock drummers are concerned, I'm not much into fandom (of course such a rule should not apply to a giant like John Bonham!). But I was and am indeed a Posner fan. In particular, I think his books published between 1990 and 2000--especially The Problems of Jurisprudence, Overcoming Law, The Problematics of Moral and Legal Theory, An Affair of State, The Essential Holmes, and Law and Legal Theory in England and America, and Aging and Old Age--marked a tremendous high point in his work. In this post, I want to discuss how to mark Posner's retirement from the bench--and how not to. Fair warning: There is much general hobby-horse riding about the American legal academy and legal profession ahead, although I think it's relevant to the post.  

I have often suggested in my Prawfs posts that there is a kind of extended or eternal adolescence problem in the American legal academy and profession, one marked especially by the clerkship culture and the tendency to speak worshipfully of one's "judge" for decades after one's clerkship has ended. The legal academy and profession tend to reject, at least by outward show but I think inwardly as well, the adage that no man is a hero to his valet. I think this is unhealthy and ultimately bespeaks a deep immaturity in the American legal culture, as well as a certain amount of insecurity and credentialism (a credentialism that takes the form of seeking greatness by association, and thus requires one continually to rekindle the flame at the altar of one's idol, so that one shines in the reflected light).

The NYU Law Review in 1995 published a great symposium issue on judicial biography, including a solid contribution from Posner. The first sentence of the preface to that symposium issue reads, "American law makes giants of its judges." That personification obscures the reality: American lawyers make giants of their judges. It is thus unsurprising that two recurring themes in the NYU symposium are the tendency toward hagiography in American judicial biography, and the tendency to "canonize" various judges, although once they become canonized they may fall out of favor, or the nature of their "greatness" may change in each generation to suit the needs of the time. (Justice Holmes's reputation illustrates both phenomena, since we have celebrated many different versions of Justice Holmes over the decades, and at times he goes out of fashion altogether; his stock seems to be going down right now. It will be interesting to see how our love of celebrating anniversaries, our current disagreements over free speech, and Holmes's fluctuating stock will come together in a year or two as we start celebrating the centennial of his most famous free speech dissents.) 

John Hart Ely famously dedicated his classic book Democracy and Distrust to the judge for whom he clerked, and for whom the book was a kind of apologia, Earl Warren. Ely wrote: "You don't need many heroes if you choose carefully." It is perhaps indicative of our culture--American culture generally, perhaps; certainly American legal and legal academic culture--that the dedication has been quoted at least 26 times in law reviews but has never, so far as I can see, been subjected to any skepticism or questioning. It is as if it our culture treats it as obvious and beyond question that having heroes is a good and desirable thing or, of greater importance, that it has no risks and side effects beyond the obvious and banal risk of choosing the wrong heroes. One might expect at least one article or passage, among the infinitude of words in the law review universe, that is willing to ask the heretical question whether a culture of heroes tends to become a culture of hero worship or idolatry, and whether that might not be an entirely good thing for an adult legal and political culture. There is a sense in which constitutional theory since 1980 has exhibited an odd dual tendency. On the one hand, it endlessly disparages the text of Democracy and Distrust itself. On the other, it endlessly celebrates and emulates its dedication, with the implication that Ely had the right goal--find the right "hero" and invent a constitutional theory that would enshrine his or her opinions--but the wrong specifics. I would venture the opinion that we have been too hard on the book and too easy on the dedication. A surprising amount of American constitutional theory, and American legal scholarship generally, still consists of a series of extended applications of or glosses on Ely's dedication, with the judge one clerked for (or wishes one had clerked for) substituted for Warren's name. One needn't be an absolute iconoclast to harbor some doubts and concerns about this phenomenon. 

These musings are relevant to Posner's retirement because they are similar to what he has often written himself, and thus suggest something about how Posner would, or should, want to be written about on this occasion. I develop that point, and say something about how we should mark his retirement, below. 

To continue: Posner has regularly, even repetitively, castigated the regular use of "the loftiest Law Day rhetoric" by and about judges and law. He has said that "ancestor worship is a besetting sin of the [American?] legal profession." He has written, again repetitively, about his insistence that his clerks call him by his first name, and criticized the tendency of judges to insist that their clerks and others act as judges' acolytes or foot-servants. His latest book devotes a huge amount of space to criticizing various judges and professors for what he sees as breathless and insincere encomia to the late Justice Scalia. Although it may be given a little (or a big) push by the fact that it's Scalia who was the subject of these tributes, Posner has often made the same point more generally. He has little interest in a culture of hero worship. Law reviews routinely devote pages to tributes to departed colleagues, and elite law reviews often publish tributes to Supreme Court justices and occasionally lower federal court judges, especially on their retirement or death. I enjoy reading them, but they are generally awash in cliches and extravagant praise, of the "He remains my idol still" variety.  Sometimes a tribute writer will give a good sense of the subject's personality; many of the tributes to Marvin Chirelstein in the Columbia Law Review were successful at this. But this is rare, and serious evaluation is rarer still. Posner has contributed to some law review tributes, but (with the possible exception of his tribute to Henry Friendly, with whom he finds no fault as man or judge) those contributions, even when they praise the subject, do so as part of an evaluation of larger developments or changes in the legal culture. His tribute to Bernard Meltzer, for example, praises Meltzer but uses that praise to pivot to a discussion of the loss of certain kinds of legal scholars and scholarship as a result of changes in faculty hiring. (I should note by way of confession that I recently wrote a post praising John Manning, a former professor and mentor of mine and the newest dean of Harvard Law School. Although it was full of praise and did not critique Manning's teaching or scholarship, neither was it intended to lionize or exalt him. It had a purpose beyond mere praise. I made clear that one's debts to such mentors are best repaid not by flattering them, but by trying to help others.) 

By far the most famous, or notorious, example of Posner's approach on these occasions is Posner's contribution to the Harvard Law Review's posthumous tribute to his former boss, Justice William Brennan. His tribute to Brennan on the occasion of his retirement in 1990 was laudatory, but Posner took care to note that it was too early to judge the value and consequences of Brennan's "contribution to the Supreme Court, the law, and American life." By the time of Brennan's death in 1997, Posner felt somewhat more comfortable rendering an assessment. His contribution begins:

When a public man dies in his nineties, the maxim de mortuis nihil nisi bonum is suspended, and it is permitted without breach of decorum to mingle affectionate tribute with critical assessment. Justice Brennan was largely free of pettiness and vanity, and so might actually have preferred a form of remembrance in which warm affection was seasoned with an effort at cool evaluation.

That is what Posner's contribution sought to provide. He acknowledged and praised Brennan's warmth and decency as a boss and a person, and "affirm[ed] Brennan's historical importance as a central figure in a judicial revolution." But he argued that Brennan's key contribution to that revolution lay not in some towering intellect but in Brennan's personality and his skill as a "facilitator" on the Court, along with a confluence of circumstances that made it possible for those qualities to have an impact on the Court and its decisions. Brennan's "achievement," Posner wrote, "lay not in the texture of his thought or writing but rather in his influence on the content of the law." As such, he argued, any evaluation of the "enduring quality of his work" must perforce be based on the effects of that work: "the statesman judge [as opposed to the genuinely intellectual judge] must be judged by the criteria of statesmanship, implying close attention to long-term social and political consequences." He raised doubts about those consequences, and said he did "not see how anyone could responsibly pronounce the Warren revolution a largely unqualified success," but did not reach firm conclusions. Posner concluded: "Only when [the Warren Court's] contribution to the nation's well-being has been dispassionately assessed from a perspective longer than is available to us today will it be possible to measure the value of Justice Brennan's contribution to American law." 

I was a student, not a professor, when this tribute-cum-critique was published. I found it striking and admirable, but have no idea how it was received by the legal academy at the time. There is a passing disagreement with it in a 1999 law review article. (That article is titled "Remembering a Constitutional Hero," and was written for a symposium titled "Remembering and Advancing the Constitutional Vision of Justice William J. Brennan, Jr." [emphasis added]. Those titles exemplify both the usual hero-worshipping tendencies of the legal academy and the link between that tendency and the desire to advance the mission and reputation of one's judge. Unsurprisingly, the majority of the authors of that piece are former Brennan clerks.) But the best way to judge the reaction to his piece would not involve law review citations. It would be to have been a fly on the wall of the faculty lounges of the law schools (especially the elite schools) at the time. Given my subsequent experience of such places, I would hazard a guess that the reaction was less than positive: that it would have been viewed as déclassé at best, insulting and outrageous at worst.

But Posner's approach was, and is, the right one. Even if they deserve it, life-tenured federal judges, let alone Supreme Court justices and/or judicial celebrities, do not require flattery, praise, and hero-worship. They have tenure, the robe, the large chambers, the deferential treatment of clerks and marshals and lawyers, and multiple opportunities to be flown to and praised by law schools and ACS or FedSoc dinners (not to mention the financial rewards that increasingly accompany their positions). They have entirely too many uncritical valets. (In person, that is: law professors and others are happy to heap contempt on them behind their back or in print, which is little different given the sheer volume of legal periodical literature, even if they drop all that when in the holy presence.) We should dispense with most of that. It does little positive good, and what good it does may be outweighed by its harm: its distorting effect on what ought to be a more mature and independent and less personality-oriented, worshipful, elite establishment-oriented legal culture.

I venture a modest prediction. Much of the instant and even short- or medium-term reaction to Posner's retirement will consist of exactly the kind of thing he criticized and disdained. With the usual delightful dollop of irony, in paying tribute to Posner the usual suspects--deans, celebrity legal academics, law professors with Twitter feeds, and so on--will praise Posner's influence while displaying little or no evidence of that influence. Some of this will have to do with the limits of Twitter and other social media. (The overheated criticisms of Posner on Twitter--"about time!," "worst judge ever," "lawless," and so on--will likewise demonstrate those limits.) And some of it will have to do with the fact that whatever liberal legal academics used to say about Posner, his recent views and his opinion (mostly a very good opinion, in my view) in Baskin v. Bogan will wash away any former ill-will in a tide of good feelings. But much of it will have to do with the entrenched and conservative nature of the legal (and legal academic) culture, which will happily take on board some of Posner's influence while domesticating it, and certainly will not follow his advice to get rid of a culture of praise and flattery. I happen to think Posner deserves the praise, and certainly can be recognized as the most influential judge and legal academic for several generations. But that will not stop me from simultaneously chuckling over and despairing at the irony.

The best way to mark Judge Posner's retirement, of course, is as he would do so: by evaluating his career and his work. His judicial opinions and academic writing, his advocacy of and contributions to law and economics and legal pragmatism, his methodology, the influence of all of these, their consequences and systemic effects: All of these should be evaluated carefully, critically, candidly, and unsparingly, immersed in the same acid bath of which Posner himself is so fond. To paraphrase Posner's description of Justice Holmes's dissent in Lochner, whether Posner was a good judge and legal scholar or not, he was and is certainly a great one. Greatness, judicial or otherwise, is difficult to imitate or emulate. That is all the more reason both to praise Posner and to ask critically whether his is a sound model for others. And Posner's greatness, along with the sheer quantity of his written output, means there is plenty to criticize and raise doubts about as well as to praise.

One can, of course, offer very simple, brief, routine complimentary statements marking his retirement and mentioning his great influence. That seems appropriate to me. Such understated boilerplate statements may not be useful, but they will be not be harmful or dishonest either. If it is too early to offer a fuller evaluation, one can say nothing, or next to nothing, or hedge one's statement by noting that a proper evaluation of his impact will take time and perspective. One can try to offer a meaningful critical evaluation. But flowery, exaggerated, worshipful praise is not only unnecessary and dangerous; it is the very opposite of a Posnerian response. It is, however, quite typical of American legal and legal academic culture. 

    

Posted by Paul Horwitz on September 3, 2017 at 12:28 PM in Paul Horwitz | Permalink | Comments (0)

Thursday, August 10, 2017

Is "The Federal Judiciary" Necessary?

I have just made my way through Richard Posner's latest book (as of the time of posting), The Federal Judiciary: Strengths and Weaknesses. Not without difficulty: The second half of the book was more of a slog than the first, and finishing it was more an act of will than of love. Before making two points about it, I want to offer some context; another bit of context, a confession, follows at the end. So: 1) I reviewed and criticized Posner's last book, Divergent Paths: The Academy and the Judiciary; 2) in the course of discussing William Domnarski's recent biography of Posner (note that I screwed up Domnarski's name in that post; my apologies), I suggested that it is appropriate and relevant to ask whether Posner has declined and whether his recent work and other statements suggest that it may be time for him to retire (I did not answer the question; I just said it was a natural and important question to ask and criticized the apparent reluctance to do so, for him and for Justice Ginsburg too); 3) I recently raised that question again, albeit in the course of praising something he had written this summer; and 4) as I have often noted, Posner has long been my favorite legal writer and thinker. (Not my "hero." I think lawyers and legal academics are better off without heroes and hero-worship. The famous dedication to John Hart Ely's book Democracy and Distrust is moving, captures a common mentality of lawyers and legal academics, and is a mistake.) If I think there are good reasons to ask whether Posner has declined, these are the questions of an admirer, not a hater. I find moving his quotation from Yeats at page 376, beginning, "Grant me an old man's frenzy,/Myself must I remake/Till I am Timon and Lear," although one might recall that on some interpretations Lear begins by displaying pride and narcissism, harms his kingdom by denying his own aging and death, and comes to madness. 

A longtime critic of Posner (and admirer and former clerk of Posner's nemesis, Justice Scalia), Ed Whelan, has a series of posts at The National Review's website detailing and lambasting the book. (The best posts, in my view, are this and this one.) I do not share all of Whelan's perspective or agree with all of his criticisms of Posner or the book, although some seem on-target. But I write here to offer a partial defense of the book and to raise one general, critical question about it. 

First, the book isn't bad! That's faint praise, but seems necessary in light of Whelan's widely shared posts, which might well lead readers to wonder whether to bother with the book at all. (Whelan does acknowledge that there are good bits and pieces here and there, but the point may get lost amid all the disparaging remarks.) With the caveats noted below, I enjoyed a fair amount of the book, especially the first half. As with a number of Posner's books, even when the book as a whole is questionable or seems loosely put together, there are many tidbits within it to enjoy and profit from. There are reasons to read it. 

For example, as I noted in my last post, I just taught the Intro to Law class for entering 1Ls at my law school. I told my students that it is common for law students to seek definite definitions for and applications of frequently used legal phrases ("intermediate scrutiny," "clearly erroneous," and so on), and common for lawyers to argue over those phrases in the manner of those who think some definite meaning can be derived from them, an exercise that easily turns into a kind of scholasticism. I told the students that such phrases rarely if ever have a precise or fixed meaning, and that--their understandable desire for certainty notwithstanding--it would be a mistake for them to begin their legal educations, or careers, under the illusion that most (or any) legal/judicial language of this sort can be reduced to some kind of mathematical formula. Such phrases should be understood as practices, or as placeholders standing in for an activity calling for judgment, and perhaps summing up some kind of underlying concept or policy, but not a definite one. Posner has a lengthy (too lengthy) section (especially 239-76, but really most of chapter 3) discussing various standards of review and other legal phrases. He argues, by picking them apart, that "there are no satisfactory answers to my questions about the meaning of familiar legal phrases commonly invoked by lawyers and judges without any clear idea of their meaning," and that they "exemplify not only concealment and indirection but also sheer superfluity in legal discourse." The discussion would have been better if it had been shorter, and some of the individual criticisms seem too cute. But it's useful and refreshing. Law students, lawyers, and judges would benefit from reading it.      

The real question is not whether the book is bad, but whether it is necessary. To his credit, Posner announces on the second page that the book is what he calls a "macédoine," a "medley or jumble." I would call it a "gallimaufry," a confused medley or jumble. Also to his credit, he acknowledges the "somewhat unconventional" format of the book, which "contains a good deal of quoted material." "A good deal" is an understatement. The book is about 430 pages long. Of that, some 130 pages consist of long block quotes (I tried not to count short ones), reprints of his own writing (including several judicial opinions), and most strikingly long sections of other people's writing, including lengthy judicial opinions from his own and other courts. Some are useful. Many are useful but could have been shortened or summarized. Some are not: Did we really need five and a half pages of a Slate dialogue between Posner and Akhil Amar? A few are embarrassing: The introductory chapter contains a three-page laudatory review of his last book, from the Los Angeles Daily Journal. At times this feels less like a book book and more like a scrapbook or commonplace book. Much of it feels loosely sutured together. As Whelan notes, it is full of digressions and divagations--often true of Posner's books and usually worth the diversions, but in this case ultimately tedious and marked by abrupt transitions. Imprisoned in this fat book is a much thinner one. I would complete Cyril Connolly's quote and say "wildly signalling to be let out," but I don't see much evidence of that. The epilogue feels tacked on and perfunctory. One understands the desire to acknowledge the election of Donald Trump, but it doesn't add much, unless reprinting the four-page open letter to Trump from "Constitutional Law Scholars" can be considered a fruitful addition. It doesn't seem so to me, especially given that it's an open letter and easily accessible.

(A more substantive side note: Religion plays a weird role in the book, getting numerous brief but ominous references. Posner quotes himself saying that "our deepest values (Holmes's 'can't helps') live below thought and provide warrants for action even when we cannot give those values a compelling or perhaps any rational justification. The point holds even for judicial action. The judge [inevitably] . . . preserves a role for conscience." But he returns again and again to only one "can't help" or "deepest value," religion, often highly speculatively and generally suspiciously if not disparagingly. The closest he comes to a justification for this fixation is a short passage--immediately after arguing with seeming approval that judges are inevitably influenced by their "deepest values" and "conscience[s]," and he notes elsewhere in the book that judges' many priors include religion--offering a cursory and tendentious argument from the Establishment Clause. That's not enough of a hook on which to hang his repeated, abrupt, almost obsessive references to religion. He should have said more about it, or less.)      

I said I especially enjoyed the first half of the book. That's no surprise. I also enjoyed it when I read most of it in his Divergent Paths, Reflections on Judging, How Judges Think, and his two editions of The Federal Courts--not to mention pages and pages elsewhere excoriating the Bluebook. Of course there are some changes and additions, especially from his earlier Federal Courts books. But a good deal of it is a mere reprinting or restatement of recent writings without building on them. The closest to a justification for this extreme repetitiveness that I can find is his statement (at page 393) that his oft-stated skepticism and criticisms are "very largely ignored" and that "[c]riticisms by me that seem irrefutable are seemingly not even noticed, as if I were exhibiting paintings to a blind man or singing to a deaf one." I would urge him to take more comfort than that: I think much more attention has been paid than these quotes suggest. Even if I'm wrong, I don't think it justifies repeating, quoting, or paraphrasing all this yet again and so soon after his last three books on these subjects. One despairing memoir from Lear following his displacement would have been enlightening; four or five would have been tedious, and provided some evidence that it was indeed time for him to exit the stage.

One must note that some books, including some of Posner's previous books, consist largely of reprints of published articles. Maybe that weakens my general point a little, but not much, I think. Some of these kinds of books are indeed superfluous. But in most cases those articles are less likely to be encountered by the general reader, and there is some value in their being collected in book form. The best of them have a unity of purpose that sheds light on the collection as a whole, and make meaningful changes to the articles or add connective tissue that contributes a new element or greater clarity to the work, making it more than the sum of its parts. The books themselves, as books, have some purpose and novelty, even if the material is collected from elsewhere. There's a difference between that and simply repeating what one has already said, at length and as well or better, in previous and recent books.    

In sum, I don't think the book was or is necessary. And to that I would add (with the confessional caveat below) that I doubt in particular that it was necessary for Harvard University Press to publish it. Perhaps that suggests that I place too much faith in university presses, especially elite ones, and am engaging in a form of snobbery or credentialism. I hope not. But I do think that university presses have a valuable niche role to play in publishing, and that elite university presses ought to make the most of that role. Some presses--Oxford and Cambridge come most readily to mind--maintain huge lists. Others, like Harvard or Yale, do not, and should be selective in forming their relatively small booklists. They still have some importance (to me, at least) for their signaling function or imprimatur. The books they publish should deserve that imprimatur and add something to the literature. This one doesn't. (And, as I have suggested, it was not edited as well as one might hope or expect, although Posner thanks the Press for "critical comments on the structure and substance" of the book. I credit that statement, but it might tell us more about the state of the earlier drafts than about the quality of the final product.) A trade press could have published it, perhaps in softcover only. (I haven't read Justice Ginsburg's In My Own Words, which is mostly a collection of speeches and other ephemera along with some co-authored biographical material. Perhaps it is a work of genius. But Simon & Schuster was an adequate, and probably more profitable, home for it; it didn't need and probably didn't merit the imprimatur of a university press.) Or he could have kept working on it until it made a serious and new contribution.  I got some pleasure from the book--occasionally from new things, but mostly from reading what I had basically already read in his other recent books. I'm not panning it, as such. But I doubt strongly that it was necessary. 

* A final confession seems appropriate. I have published one book with Harvard University Press and, more relevantly, have another book in progress with them. For "in progress," read "incredibly late." Some of the reasons it is so late are fair ones: several surgeries and lots of chronic pain. Others are lamentable but understandable: I decided it needed an empirical section, and that is proving more difficult than I thought, something I ought to have weighed more heavily when estimating its date of completion. None are sufficient. I was greatly cheered by this recent article, but I'm not counting on similar forbearance, and I'm terribly embarrassed and frustrated by my lateness. I wrote last year about the effects that both chronic pain and the drugs used to treat it can have on one's productivity as a writer. That is an explanation, not an excuse--others have done more while laboring under greater burdens--but it doesn't fully capture how frustrating and demoralizing it can be to try to get things done when you feel like only half a fully functioning person. Especially given my own ambitions, I would very much like to be writing more and faster right now, as I used to. I can only apologize that I cannot, and try to press on. In any event, it didn't seem fair to criticize Posner's book--which has the comparative advantage to my own of actually existing--and especially to reserve some of that criticism for the Press, for publishing it in this form, without acknowledging the plank in my own eye.    

 

        

Posted by Paul Horwitz on August 10, 2017 at 10:12 AM in Paul Horwitz | Permalink | Comments (0)

Saturday, August 05, 2017

What I Teach in "Introduction to the Study of Law," With an Assist from Hugh Trevor-Roper

The academic year begins absurdly early in Alabama, at public schools and universities alike, and I have already begun teaching. The 1L class began its work on Thursday with a short, intensive course called "Introduction to the Study of Law." I believe this is the second year we have taught it for every 1L student, and I have taught it both years. Our dean, Mark Brandon, taught most recently at Vanderbilt, and so it's perhaps unsurprising that Vanderbilt offers such a course and that we use a text written by two Vanderbilt law professors, Tracey George and Suzanna Sherry. The class mostly does what one would expect of such a course. It gives students some basics on what to expect from the law school experience, how to read and brief cases, some of the basic knowledge and vocabulary they will need to know to do their work, tips for success, and so on. The goal is to eliminate unnecessary fear and ignorance prior to the beginning of substantive law school classes. (Although I tell them, half-jokingly, that if there were no fear at all, they would miss out on joining the long law school tradition, and would lack stories to tell each other and their progeny in years to come.) We read a couple of cases, of course, and--also of course--spend some time with the classic "no vehicles in the park" hypothetical. Is the course necessary? I don't know. I enjoy any opportunity to meet and teach 1Ls, so I'm not complaining; and I think they get something out of it. It is certainly not a demanding course. No doubt many schools now do something like this, either for every student or, sometimes and problematically, for a smaller group of entering law students. 

There are a couple of things I do in this class that I thought I would share. One is obvious, if no doubt not always done: I make sure that the students, in the short time they have with me, read at least one or two full cases. The Sherry and George book offers excerpts from the fun recent Supreme Court decision in Yates v. United States, which asked whether fish are a "tangible object" for purposes of a federal criminal law barring the destruction of material to prevent its seizure by the government. Their excerpt is fine but shorter than even the average casebook excerpt. I require the students to read the full version, including the concurring and dissenting opinions, which altogether is 43 pages not counting the syllabus (which I do not reprint in my handout). Students are not required often enough in law school to read full opinions rather than excerpted versions. They thus aren't forced often enough to do the work of figuring out what the opinion means, separating the substance from the filler, and learning how to use separate opinions to make sense of and critique the majority (or plurality, in this case) opinion, and vice versa. Just as I require my Constitutional Law students to read the Constitution itself in depth at least once, even if most of the course goes far afield from it and the text itself is often unimportant, so I want these students to read a full case at least once in law school. (Yes, they do so in their legal writing and research classes--further evidence that LRW is the most important class in law school. And I hope they all do so in the course of writing papers during law school. But more of this is better, and it's rare in substantive courses.) Yates is a statutory case and a Supreme Court case, so it's not fully illustrative of what they usually read in their 1L year, although it's pretty fun and readable. I also have them read a much shorter but still full version of a standard common-law case, and write a brief of that case. Although I don't think my own chosen common-law case qualifies, having students read a case or two is one area in which those professors or law schools that are so minded can bring in some of the underlying bigger issues that are present but not always discussed in law school--race, inequality, etc. (Some of these issues are discussed in my Intro class.) 

There are three other things I talk about: jobs; whether to attend law school at all; and writing. More on that below.

First, I talk extensively about jobs. No doubt this will please the many students, graduates, and professors who worry about this issue and think law schools fail if they're not candid and detailed in talking about difficulties getting jobs, the state of the legal economy, and so on. And it is equally likely that the talk may dispirit some of my new students, who are coming in full of hope and perhaps high expectations engendered by all the usual blandishments and encouragements that they receive when deciding whether and which law school to attend. I consider it a duty, in any event--and especially a duty to do it early, when they can still reconsider their decision to attend law school, without as much expense or disruption as withdrawing later would involve. I do mention those writers who have argued that the legal economy is improving, that law school graduates still enjoy a lifetime earnings benefit, and so on; I also mention those who argue that the legal economy is undergoing fundamental restructuring and that there will be many fewer jobs, or worse jobs, for today's law students and lawyers. But the general discussion is short; much of the talk is about jobs for Alabama students in particular, and advice for their job hunt.

Alabama is a highly ranked law school and, I naturally think, a durn good one. If rankings were all, it would be a ticket to national employment as well as work in Alabama. Our ranking, among other factors (including our relatively low tuition and extensive clinical offerings; many also say they are impressed by the friendliness of everyone they meet when they visit, and the interest in those prospective students, as compared to their visits to other law schools, which seem less friendly and happy or more indifferent to them), draws students from out of state as well as Alabamans. But rankings are not all, especially when combined with two things: the national prejudice elicited by the very mention of the word "Alabama," and the tendency within Alabama to be parochial. So we face a kind of double-bind in employment. Students who come from out of state to Alabama for law school and want to live and work here sometimes find that Alabama law firms worry that they will leave after a couple of years, and that their investment in training them will be lost. They are, in short, suspicious of out-of-staters, and place a heavy burden of proof on these students that they will remain in the state for the long haul. Conversely, despite its ranking, the value of the Alabama law degree does not "travel" out of state to a degree commensurate with our ranking. So those students, whether out-of-staters or Alabamans, who want to work elsewhere (other than a few places in the Southeast like Atlanta or Nashville) find that it's more difficult than they thought to get jobs there. (I will add that when I meet with prospective students the year before they attend law school, I ask where they want to work and what schools they have gotten into. Where appropriate, if they want to work in place X and have an offer from a decent law school in place X, I often advise them to think seriously about going there, even if it's more expensive than Alabama. I offer half-hearted apologies to the hard-working folks in our admissions and recruitment department.) 

I don't want to overstate any of this, especially if any of my colleagues are (still) reading this. Most of our graduates succeed in getting jobs, and I hope most of them get the jobs they want. Moreover, everyone from the dean on down is working hard on this issue, and making progress. As at most schools, however, getting a job isn't automatic, and it's better that our students be warned about our particular conundrum, even if it makes them nervous or unhappy at the beginning of law school. 

I don't have perfect advice. If I were talking to Alabama law firms themselves, I would tell them, I hope gently, that their parochialism is silly. And it is tied, no doubt, to a general parochialism in Alabama, and especially a tendency to rely heavily and foolishly on those who already know each other--from school, from social networks in Birmingham or Mobile, from excrescences such as the "Machine," etc. It is not different in kind from networks of those who know each other from Choate or Stuyvesant or Harvard or other webs of the northeastern professional-managerial class. But it is worse in degree, incestuous, secretive, often has a racial- and class-discriminatory impact, and is one among many reasons that our state too often fails to update itself and too often prefers mediocrity to greatness. That's a broad statement and an accurate one, but not of course a universal one. Those employers think there are many reasons to live in places like Birmingham and Mobile, and they're right; they should have a little more faith. They should also place greater weight on the fact that these students have already chosen to come to school here. Finally, they're missing out on excellent opportunities for the sake of ostensibly sure bets. Some out-of-staters will leave, but others will stay. In any event, some will be worth the investment even if they eventually leave. In the meantime, the web of alumni and connections built thereby will benefit them in the long run, as will the infusion of new blood, energy, and ways of thinking and doing business at those firms and in the state legal community, as opposed to stagnating and incestuous circles of the already-acquainted, and the occasional high-profile scandals and routine low-profile conflicts of interest they engender. I think many lawyers at many big firms in the state know this and are responding, and I think our dean, who is an Alabama alumnus, is an extraordinary ambassador and advocate for our students. But change comes slowly in our state. 

To the students, I say this. For out-of-staters who want to work in Alabama, I tell them to start preparing a plausible (and hopefully mostly sincere) story about why they want to stay and work in Alabama for a long time. (I do not tell them never to leave. The long-term shape of their careers and their decisions is their own business.) And I tell them to start immediately getting to know as many Alabama lawyers as they can, including the usual offer to buy coffee and listen admiringly to the Great Man or Woman talk about his or her practice, with the emphatic assurance that they will not ask for a job. Lawyers like to talk about themselves and, on the whole, like talking to students who profess to want to do exactly what they do. They are more willing to do so if there is no pleading for a job attached. They may remember that student, and they may introduce him or her to other lawyers who will also remember his or her name. It's slow work and there will be more noes than yeses, but it can result in a job in the long term. Similarly, for Alabamans or out-of-staters studying at Alabama but who want to work elsewhere, I encourage them to start trying to meet as many lawyers in the place and area of practice they are interested in as possible. That may include using trips or vacations to those places, and trying in advance to set up as many informal informational interviews as they can manage. They should certainly contact Alabama alumni in those places, and although younger alumni will have less power, they may understand the conundrum better and be more willing to give advice. 

Most important, and perhaps most in tension with what they are told officially, I tell my new students that they should treat the job hunt as an immediate priority, not something that should wait until after midterms, Thanksgiving, or first-semester exams. Yes, they should focus hard on their studies. But it is never too early to start worrying about jobs. I advise them (and upper-year students as well) to act as if they are enrolled each semester in a class called "Job Hunting," and--as with their other classes--to schedule a certain amount of time to it each week rather than only at the end of the semester or other specific times. They should move the ball forward a little each week rather than trust that everything will work out if they apply through the conventional channels at the conventional times and/or rely on the on-campus interview process. They should do so for all six semesters of law school, including the first. I can't promise magic results. (Again I emphasize that most of our graduates succeed in getting jobs.) But I can promise a little less tension, less surprise and sudden disappointment, and more agency.

Second, I talk about the decision to attend law school itself. The modern cliche is that prospective law students should be told that unless they really want to actually practice law, with the expectation of a living but not great wealth or security, they should probably not attend law school. Take comfort: When I asked for a show of hands, the vast majority of the class reported that they had been given this advice before deciding to come to law school. (I offer the same advice to prospective and admitted law students.) We talk about why they decided to come anyway, what their expectations are, and what concerns they have. Some students talk about unhappy lawyers they know, and why they're unhappy.

This talk is less necessary than it was around 2009-12, when students came in with a great gulf between expectation and reality and less information about law school and the legal economy. Most of my students now are pretty informed about these issues, and have made conscious decisions about whether and why to attend. (They may be over-optimistic decisions, to be sure; but they are much more informed and deliberate decisions.) My point is not to scare them away. They're adults, for one thing; and for another, I loved law school and (mostly) my brief practice of law, and many of these students are far more determined, informed, and excited about the nuts-and-bolts practice of law than those of us who attended law school a couple of decades ago, when "I have a BA in English" or "I like debating" was still a frequent explanation for one's decision to attend. But it's better that they talk and think again about these questions now--when, among other things, it's easier to withdraw if they so choose--than later. We talk about these things too when I teach the legal ethics course, but by then they're already second- or third-year law students. 

Finally and more conventionally, I talk a lot about writing. My general advice is that LRW is the most important course in law school, that a vast amount of legal practice in any field involves writing, that the ability to translate and explain clearly to clients and others is a major part of their jobs, and that if they can internalize the form of a good legal memo, they can apply that skill more easily and successfully on law school exams. I continue to think this advice is better and cheaper than trying to learn and game the preferences of each individual professor. This year, I handed out something I came across in my summer reading: the English historian Hugh Trevor-Roper's writing advice for those writing academic theses. Although it's written for a different audience, it's mostly excellent advice for any writer, including any legal writer. A PDF version is available here, but I reprint them below, from this source. It can also be found in this collection of letters from Trevor-Roper, which is a delightful read.

* * *  

THE TEN COMMANDMENTS OF WRITING

1 Thou shalt know thine own argument and cleave fast to it, and shall not digress nor deviate from it without the knowledge and consent of the reader, whom at all times thou shalt lead at a pace which he can follow and by a route which is clear to him as he goeth.



  1. Thou shalt respect the autonomy of the paragraph, as commended by the authority and example of the historian Edward Gibbon; for it is the essential unit in the chain of argument. Therefore thou shalt keep it pure and self-contained, each paragraph having  within it a single central point to which all other observations in it shall be exactly subordinated by the proper use of the particles and inflexions given to us for this purpose.

 

  1. Thou shalt aim always at clarity of exposition, to which all other literary aims shall be subordinated, remembering the rule “clarté prime, longeur secondaire.”* To this end thou shalt strive that no sentence be syntactically capable of any unintended meaning. To this end also thou shalt not fear to repeat thyself, if clarity require it, nor to state facts which thou thinkest as well known to others as to thyself; for it is better to remind the learned than to leave the unlearned in perplexity.

 

  1. Thou shalt keep the structure of thy sentences clear, preferring short sentences to long and simple structures to complex, lest the reader lose his way in a labyrinth of subordinate clauses; and in particular, thou shalt not enclose one relative clause in another,  for this both betrays crudity of expression and is a fertile source of ambiguity.

 

  1. Thou shalt preserve the unities of time and place,**placing thyself, in imagination, in one time and one place, and distinguishing all others to which thou mayest refer by a proper use of tenses and other forms of speech devised for this purpose; for unless we exploit the distinction between past and pluperfect tenses, and between imperfect and future conditional, we cannot attain perfect limpidity of style and argument.

 

  1. Thou shalt not despise the subjunctive mood, a useful, subtle and graceful mood, blessed by Erasmus and venerated by George Moore, though cursed and anathematized by the Holy Inquisition, politicians and some of the media, and others who prefer to diminish language.***

 

  1. Thou shalt always proceed in an orderly fashion, according to the rules of right reason: as, from the general to the particular when a generality is to be illustrated, but from the particular to the general when a generality is to be proved.

 

  1. Thou shalt see what thou writest, and therefore shall not mix thy metaphors. For a mixed metaphor is proof that the image therein contained has not been seen worth the inner eye, and therefore such a metaphor is not a true metaphor, created out of the active eye of imagination, but from stale jargon idly drawn up from the stagnant sump of commonplace.

 

  1. Thou shalt also hear what thou writest, with thine inner ear, so that no outer ear may be offended by jarring syllables or unmelodious rhythm; remembering herein with piety, though not striving to imitate, the rotundities of Sir Thomas Browne, and the clausulae of Cicero.

 

  1. Thou shalt carefully expunge from thy writing all consciously written purple passages, lest they rise up to shame thee in thine old age.

                                                                                AMEN

* Some versions ascribe this to "the prophet Black."

** Another version adds "as commended by the High Priest Nicholas Boileau, (1636-1711)"

*** Another version has it ‘the Holy Inquisition, Pravda, and the late Lord Beaverbrook.’

       

 

               

   

 

 

Posted by Paul Horwitz on August 5, 2017 at 11:35 AM in Paul Horwitz | Permalink | Comments (6)

Tuesday, July 11, 2017

"Positive Pluralism Now": A Review of John Inazu's "Confident Pluralism"

I'm grateful to Rick for the mention of my piece Positive Pluralism Now, a review of John Inazu's fine and very well- and widely-noted book Confident Pluralism: Surviving and Thriving Through Deep Difference. As a book review, my just-published piece suffers from the usual potential SSRN black hole: my experience, at least, is that SSRN is inconsistent in its treatment of book reviews but generally prefers not to put them on the main, searchable "list". What's more, it lacks even a Solum-ready abstract. So I want to offer a summary of the review, which is an attempt to use the book as a vehicle to think about issues that have interested and worried me for some time, both before and after the election. 

First, although this is a critical review of John's book, it's not a dismissive one. I write: 

If a new literature of pluralism emerges in this culture-war cycle, Professor John Inazu’s Confident Pluralism: Surviving and Thriving through Deep Difference is likely to be one of its key texts. Inazu’s book is blissfully short, clearly written, aimed at educated general readers rather than academic specialists, and underwritten by personal experiences that cross standard culture-war lines. Confident Pluralism is necessary reading for anyone who is frustrated by the belligerence and inflexibility of the current discussion and looking for ways for different deeply held perspectives and tightly knit communities to survive and thrive. . . . Confident Pluralism is a good and valuable book. 

What I find especially important about the book is

the fact of Confident Pluralism. Like other expressly pluralist interventions, it comes at a moment, during one of our recurring culture wars, in which debate hardens around the poles and those poles move ever farther apart. The culture-war cycles tend to subside. . . . But they always come back. In or around each cycle, a pluralist intervention also occurs, and these interventions have provided some of the richest and most inspiring literature, offering a welcome alternative to the tedious trading of blows between left and right, even if they have made relatively few converts.

Those are the positives, and they are sincerely meant. I am a strong believer in pluralism not just as a social fact, one to be "managed" as if it were a nice but dangerous demographic incident, but as a good in itself. As the review makes clear, and as my friends Rick and Marc DeGirolami pointed out in tough comments on a draft, whether there is such a thing as pluralism as an end in itself and whether it is a good thing in itself are difficult questions, and I only make some headway on these questions, despite having tried to address it at least once before. This is my stab at it here:

I believe there is something to the possibility of arguing for pluralism as a distinctive positive good rather than a mere “claim of descriptive sociology” to be managed. There is a real difference between an approach that treats equality (or liberty) as the good to be realized, leaving pluralism to be slotted into or reconciled with that master value, and an approach that starts with pluralism as a positive feature of our society and treats liberty and equality as factors to be weighed and considered as means of helping pluralism itself flourish. At the least, it moves away from the “logic of congruence” and an overly state-centered approach to our social and political structure. And it demands suppleness about the different meanings of “liberty” and “equality” themselves, and about the possibility that the “official” legal versions of these values do not apply everywhere or with equal strength or meaning in different legal and non-legal contexts.

That said, I have two questions or criticisms about the book, one specific to John's project and one more general, although the two are clearly related and both are related to current events. The first is substantive. I argue--against my own intuitions and desires, to be sure--that "pluralism as a positive approach—as a good in itself, rather than a descriptive fact or a “technical problem . . . to be managed”—faces serious questions and difficulties. . . . [T]hese questions remain largely unanswered in Confident Pluralism because of Inazu’s strategic refusal to stake out a more distinctive and forceful theoretical position on pluralism itself." On the one hand, that strategic (if I am right to call it that), least-common-denominator approach has been a success: More so than most law professors' books, John's book has received a wide, enthusiastic, and eager reception--although one may worry that it has reached only the kind of "reasonable" audience that already believes in its principles rather than made new converts to pluralism. On the other, it leaves many questions about both the basis for and the application of the "confident pluralism" he describes.

The second question, one that in fairness was beyond his doing, is one of timing. I write:

From an optimistic perspective, Confident Pluralism is perfectly timed, coming when the culture war is at its height and a solution is all the more welcome. A more pessimistic reading of our situation, however, is that the book is already too late. To be effective, pluralist interventions in a culture-war cycle require a very specific hospitable environment. The intervention must come when there is enough heated disagreement to make an alternative to the shouting seem attractive. But it must also occur while both sides agree that there is a war, and think of either side as having a serious chance of winning it, leaving them amenable to compromise and coexistence. That is a pretty small window—and it may already have closed. . . .

 

A big part of this question of timing, and a phenomenon that has wreaked havoc with all general articles about constitutional law and theory written between last summer and this one, is what I call "one final, crucial data point[:] the short-fingered data point whose swift political rise so rudely interrupted our good old-fashioned on- and off-campus culture wars. Its name, of course, is President Trump." Trump, in this view, is both an exemplar and beneficiary of the culture wars and a disruption to the routine course they were taking in locations like university campuses, which might in time have led to the usual drop-off in interest in those fights. Now I am left uncertain about what will happen next, but think it means that however needed Inazu's book might be now, it is less likely to find ready takers:

Trump’s victory suggests . . . [that] the urging of a liberal “hard line” and the rise of an anti-elite conservative populist movement [ ] are closely connected. That victory simultaneously disrupted and entrenched the culture wars. It suggested that neither side was interested in the kind of compromise and coexistence that Inazu advocates, at least as long as victory was in prospect. And now that the pre-election expectations of the elite culture warriors have been upset in ways that might counsel compromise, there is a good chance that both sides will either double down or head to the barricades on other and bigger issues rather than coming together. . . . Inazu’s book thus comes along at a moment when it is simultaneously most needed and least likely to make new converts to the pluralist cause.

There is a lot in the review about culture wars, "political correctness" (and debates over whether it exists), lumping and splitting, the cyclical nature of both culture-wars and pluralism as a response to them, the "meaning" (if any) of Trump's election, and the (short-lived?) recommendation to abandon "defensive crouch liberal constitutionalism." There are very few answers. I hope some of you read it and even enjoy it--and I hope many more of you take a look at John's excellent book.

 

 

 

   

Posted by Paul Horwitz on July 11, 2017 at 09:25 AM in Paul Horwitz | Permalink | Comments (3)

Monday, July 10, 2017

Posner on Aging Judges: Again Much More Right Than Wrong

Between more productive uses of my time, I'm hoping to circle back and comment on a few interesting things I read last week. I very much hope to get around to this post by Mark Tushnet on the obligations of those who comment on contemporary political issues. (I am deliberately generalizing from the more specific question addressed in his post.) Like many of Mark's best posts, I consider it interesting, provocative, and well worth reading-- even or especially if I disagree with it, as I do in this case. 

For now, let me discuss another fun item from last week: this dialogue on Slate (sorry!) between judges Richard Posner and Jed Rakoff on the question whether there should be age limits for federal judges.* Posner says yes: "I believe there should be mandatory retirement for all judges at a fixed age, probably 80." (Posner is 78.) Rakoff disagrees, and as the conversation proceeds Posner gets more Posner-y and Rakoff gets increasingly "taken aback" by Posner's musings, so much so that he uses the fierce ejaculation "Jeepers."

A longtime fan of Posner, I have nevertheless (and in keeping with what I think is a proper Posnerian approach; to hero-worship Posner is really a form of anti-Posnerianism) disagreed increasingly with his recent writings, partly in substance and partly as a matter of style and restraint. Indeed, in a close connection to the subject of the Slate dialogue, I have wondered whether Posner himself is not showing recent signs of decline--a question that I suggested is unlikely to be welcome in the legal interpretive community. As Posner has argued elsewhere, the subject of aging and old age itself is often and absurdly treated as "taboo." That's trebly true when applied to particular individuals and when, as with Posner, that figure has of late become a darling of liberals. (The same question is relevant to Justice Ginsburg, given not only her age but her increasing propensity for extrajudicial animadversions; Posner wrote in his book on aging and old age that the aged "have less incentive to conceal egocentrism and to engage in cooperative rather than self-aggrandizing conversation." But she too is treated by some as sacrosanct not a fit subject of the perfectly obvious questions one would ask about a parent or other aging loved one.) Not surprisingly, at least one person who disagrees in part with Posner's comments in the dialogue has suggested that Posner's comments reinforce his point about the need for mandatory retirement. 

I note my own previous questions about Posner's aging because, in my view, Posner is in fine form in this dialogue, and, to paraphrase an earlier post of mine, is much more right than wrong. Conversely and even more so, Judge Rakoff is much more wrong than right. Rakoff offers a number of defenses against mandatory judicial retirement ages. He argues that a number of federal judges "have served with great distinction into their 80s." He writes: "I respectfully disagree that Supreme Court justices don’t improve with age; on the contrary, many of them gain a broader perspective than they had when they went on the bench, and this enables them to pierce through the technicalities of which Judge Posner complains, so they can see the woods instead of the trees. As Justice Holmes so famously said, 'The life of the law has not been logic: it has been experience.'" He asserts that "in every country of the world, it has been the lawyers who have been in the forefront of confronting despots and promoting liberty." And he winds things up with this: "I’m sorry, Judge Posner, but in my mind, a love of the law and a love of liberty are inextricably intertwined." 

With all due respect to Rakoff, these statements are classic examples of what Posner likes to call "Law Day rhetoric"--the stirring language and windy invocation of broad but non-specific values that lawyers and judges use when reminding themselves and others of lawyers' vital importance . It's not that there's nothing to such values or statements. Motherhood and apple pie are both good things. But speeches invoking mom and apple pie don't tell us much about either. I would much rather live in a society with whatever "the rule of law" is than in one without it. But I'm not much impressed by general statements of this kind. In every sentence quoted above, I think Rakoff is closer to persuasion by cliche than to serious argument, and the arguments, such as they are, are more wrong than right. 

1) The fact that many judges have served with distinction into their 80s is doubtless true, but unhelpful and rather innumerate. Rakoff starts by citing what are generally agreed to be great judges in the first place, although Posner is right that their greatness is more assumed than proved and is overstated. Rakoff  gives us an imprecise numerator, and no denominator. He does not ask how many previously great judges declined, sometimes precipitously, with age. He doesn't show that those great judges remained great, as opposed to continuing to cast votes viewed by the interpretive community as great. Nor does he ask how much of the great work itself was done by law clerks, particularly in the later stages of those judicial tenures, and whether it might be cause for concern and an argument for retirement if the clerks increasingly did everything besides casting a vote. He says judges who fail are generally and gently removed by the chief judges of their district or circuit, but doesn't prove that this is effective and sufficient, and doesn't distinguish between judges who are clearly senile and more easily removed, and those who have simply declined enough to warrant retirement but might not be the subject of such efforts by chief judges, and might refuse under those circumstances.  

2) The assertion that Supreme Court justices "improve with age" comes not only with no denominator, but no evidence of any kind. I doubt its truth. I especially doubt the notion that they "gain a broader perspective" with increasing age. I think that is definitely true, but only up to a point. A judge may learn a great deal from ten or twenty years on the bench, because of the variety of cases she hears. (And the parties she encounters; but even district court judges are going to hear more from the lawyers than the parties. What parties do the Justices encounter personally?) But there is no reason to think that the learning curve is lifelong, or that it outweighs the eventual effects of decline, which may include fixity of views, tunnel vision, and other deficiencies. And there is something strongly lacking from this picture of judges gaining breadth of "perspective" and, to use the word from Holmes that he quotes, "experience" over time. Other than the variety of cases they hear, judges live cloistered lives; many judges complain in their memoirs and elsewhere about having to give up friends, associations, and other connections to the wider world. And it's a pretty privileged and princely cloister. It didn't take very much time as a law clerk for me to notice the air of deference and insulation from inconvenience that surrounds federal judges: the generous per diems, the potential for flattery from lawyers, law clerks, law schools, and bar associations; the habit of being called "Your Honor" by most of the people around them; the marshals waving them through the fortress of parking gates and detector machines in the courthouse. And that wasn't even at the Supreme Court level, which involves that level of deference, flattery, and insulation multiplied a hundredfold. The idea that judges eventually "see the woods instead of the trees" is dangerous enough on its own, since the trees are sometimes called statutes, precedents, procedural rules, and so on, and the woods sometimes amount to free-ranging views on politics and policy. But it's especially dangerous when combined with decades of relative isolation surrounded by legal courtiers. That's a recipe for hubris and judicial overreach, not "perspective." (Perhaps unfairly after that sentence, I note that Rakoff's relatively recent and now-frequent contributions to the New York Review of Books consist of broad-brush prescriptions for reform of the criminal justice system, the abolition of the death penalty, and so on. The prescriptions are less important than the question whether they should be offered by judges or fought over by politicians and citizens.)  

3) Spending enough time in this kind of environment can instill a tunnel vision about the relative importance of law, lawyers, and courts, as opposed to things like people, voters, and ordinary politics. Of course law and lawyers are important. The question is their relative importance, which can easily be overstated. Rakoff's generalization about lawyers being "in the forefront of confronting despots and promoting liberty" might best be viewed in that light. Posner responds, "I would like to see some evidence for this proposition, which strikes me, frankly, as preposterous." Preposterous? I don't know. Almost certainly vastly overstated? Definitely. And Rakoff's peroration about "a love of the law and a love of liberty" tells us nothing about either, and anyway has nothing to do with the possibility of judicial decline and the advisability of judicial retirement.

Posner has drawn the most heat for this statement in the dialogue: "It’s not true that . . . a decision must be supported by 'reason,' whatever that means exactly, to avoid lawlessness; personally, I prefer common sense to 'reason.'" I don't know whether the criticism counts as ironic, insofar as I see some of the adoring praise for some of his recent decisions as having more to do with their values and outcomes than the actual "reasons." I do think there are good grounds to worry about such a statement, especially from one who was criticized last year for what was taken to be a rather free-wheeling view of constitutional interpretation and followed it up this year with an opinion suggesting a fairly free-wheeling view of statutory interpretation. Without taking a view on any of that, I still think he is far more right than wrong in this dialogue--especially about the actual matter under discussion: the question whether there ought to be a mandatory retirement age for federal judges. But even that sentence is not half as objectionable as its critics suggest. I do think Posner's work on the bench has become too free-wheeling. But I also think that while providing reasons is a fundamental part of the American judicial process, it is easy to turn respect for "reason" into idolatry, to  think the "reasons" themselves do or mean more than they actually do, and to treat "reasons" as necessary while ignoring the question whether they are sufficient. (They are not: common sense is necessary as well, even if channeled through procedural rules, textualism, and other mechanisms, and even carefully elaborated and logical "reasons" are not necessarily reasonable.) 

Given that I've criticized Posner in recent years and suggested, not that he is unfit or hugely affected by age, but that it is not wrong  to ask such questions, I'm happy to find him in such excellent form in this dialogue. 

* As a side note, Posner was slated (so to speak) to be part of Slate's Supreme Court Breakfast Table this year, at least according to the first post. Unless I've missed it, I don't think he ended up contributing anything this year. Since I generally find him the only seriously interesting contributor sitting at the "Table," I was sorely disappointed by his absence. 

Posted by Paul Horwitz on July 10, 2017 at 12:11 PM in Paul Horwitz | Permalink | Comments (15)

Monday, June 26, 2017

A Small But Important Aspect of OT16: Resisting "Brilliant" First Amendment Arguments

Allow me to offer one discrete and fairly mundane observation about the Court's treatment of the First Amendment this Term. Last week, I thought the most important sentence in the Slants case, Matal v. Tam, was this one: "This brings us to the case on which the Government relies most heavily, Walker [v. Texas Div., Sons of Confederate Veterans, Inc.], which likely marks the outer bounds of the government-speech doctrine" (emphasis added). To that I would add a passage from today's decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, in which the Court distinguishes its earlier decision in Locke v. Davey. Neither of these moves is extraordinary, dazzling, innovative, or anything of the sort. Both are very much the stuff of standard case-crunching. But I think they're both noteworthy moves, in two respects.

1) Both of those cases, and especially Walker, are the subject or basis of efforts by some First Amendment scholars, particularly those of an expressivist and/or strongly egalitarian bent, to find brilliant new ways to apply and extend (their understanding of) the First Amendment. On this reading of the legal issues raised in cases like Walker, government would have an enhanced regulatory ability to avoid perceived "endorsement" of various values, or even a constitutional obligation to avoid "endorsing" or being seen as endorsing various values seen as anathema to particular social/constitutional values. One might see Locke as the basis of similar expansive efforts in the Establishment Clause area. On this reading, Locke gives ammunition for a broader argument that government can, or even must, regulate more aggressively, despite claims of equal access to funding or programs by religious individuals or groups, in order to avoid being seen as in any way "endorsing" religion or religious values. As my friend Marc DeGirolami summarizes this line of argument, "government conduct that is motivated by even the possibility that somebody might perceive religious endorsement (even if nobody actually has) is itself justified and validated by the Establishment Clause." Both cases are thus tools for creative, even brilliant, readings of existing First Amendment law and principles in a way that would give government considerable discretion, or even a positive obligation, to avoid "endorsement" of values that are actually or purportedly contrary to the (actual or aspirational) Constitution.

Of course I mean "brilliant" as both a sincere compliment and an expression of concern. The skill of some of this scholarship is great and it makes for thought-provoking reading. But there is now a long post-Daniel Farber tradition of recognizing the limits, dangers, and sometimes hubris and overreaching quality of "brilliant" arguments in constitutional law. However I might feel about it in scholarship, on the whole I would just as soon not have courts go in for "brilliant" extensions of First Amendment doctrine and "values." There is no particular reason to think judges or law clerks have the wisdom or skill or forethought about consequences to engage in these brilliant extensions wisely or well. There is little reason to think government will be wise in its use of such "nonendorsement" principles either; but at least those applications are subject to some political control and capacity for revision. Constitutionalizing the principles and turning them, more or less, into judicial mandates would eliminate that safeguard. I am not defending current doctrine; and for that and other reasons, I find much to think about, and therefore admire if for no other reason, in some of these brilliant arguments. But I think we would on the whole be better off if judges did not pay too much attention to them. Both Tam and Trinity Lutheran show little interest in these kinds of brilliant extensions, and some interest in foreclosing them. That, I think, is noteworthy in and of itself.

(On the other hand, I am perfectly amenable to smart and provocative scholarly arguments for fairly radical revision of constitutional doctrine in this and other areas. But I prefer such suggestions to be put explicitly as radical revisions, which are harder to put over quietly and thus require more debate and discussion before doing so. That is better than the strategic approach of treating clever or brilliant arguments for radical revisions as if they are implicit in existing doctrine, and thus are either already required or need just a little modest judicial work to achieve. The latter approach is much more elitist and anti-democratic than the former.)

2) These signals from the Court (if that's what they are) are also important for the Supreme Court's relationship with lower courts. In some of these areas, in my view, the lower courts have been much more receptive to brilliant arguments of this sort, and much more willing to apply them, despite and sometimes in fairly obvious if implicit disregard of the Court's own opinions and direction. The passages that I've identified in Tam and Trinity Lutheran show that these kinds of innovations won't find a Court that is eager to adopt them. I don't expect the lower courts to stop pushing their own visions just because the Court sends signals like this, or even stronger ones. The Supreme Court only takes so many cases; it only decides them so clearly and leaves lots of room for clever readings and exploitation of open spaces; there are many smart, driven, and politically committed lower court judges; and courts and judges, like the rest of the nation, reflect political and societal fissures. Lower courts do not have to read tea leaves if they do not want to, and sometimes it suits them not to do so. So I don't mean to overemphasize the importance of the signals here. But I do think both passages make clear that the Supreme Court won't give a friendly reception to lower court innovations in these areas.     

 

Posted by Paul Horwitz on June 26, 2017 at 12:07 PM in 2016-17 End of Term, Paul Horwitz | Permalink | Comments (1)

Thursday, June 01, 2017

On John Manning and Debts Past Repaying

I have often worried here about how small the American legal academic community is, especially given its multiple connections to the few elite schools. That said, much that happens within them, as in any other institution, shows generosity, kindness, and decency. And it is with that in mind that I say a few words about John Manning, announced today as the next dean of Harvard Law School.

In 1996-97 I was 25 years old, a Canadian newly moved to New York for an LL.M. at Columbia. An LL.M. in the US at one of the usual suspect schools was then regarded as the path to a teaching job at a Canadian law school. I hoped I might succeed in taking that path, and had no idea what Canadian hinterland I might end up living in and teaching at (to Torontonians, like New Yorkers, just about everything outside Toronto is the hinterlands), if I was lucky enough to get a teaching job at all. Columbia doesn't, or didn't then, have any thesis requirement for LL.M. students. But if I had to describe my year there, I would say I took a master's in legal interpretation. Among other things, I took a course in constitutional interpretation with Mike Dorf, a general course in legal interpretation with my friend and mentor Kent Greenawalt (as well as a life-changing course from Kent in law and religion)--and a course in statutory interpretation with John Manning, who was then teaching at Columbia, a few years before his repatriation to Harvard.

John's statutory interpretation course was relatively small--roughly 16 students, many of whom went on to do extraordinary things--and absolutely wonderful. It is still a model for me--an unreachable one--of excellent teaching. His use of illustrative cases was superb, his canvassing of the literature on statutory interpretation equally wonderful, and his willingness to give each basic theory its inning admirable. His own views are well known, but he didn't stack the deck and was delighted to be challenged by his students. (As an aside, I remember the night he took the class to a bar for an end-of-class get-together, and the feeling it evoked of Salinger's story "The Laughing Man" and "the Chief" at the center of that story.) I also took Federal Courts from John, and audited his administrative law class. He was incredibly dynamic in a large classroom, again a model I have tried (and failed, especially when it was difficult for me to stand or walk due to arthritis) to emulate. He strode the length and breadth of the class, untethered to notes, eloquent, excellent in his use of the Socratic method, and drawing in large numbers of the class. (The Mountain Dew helped!) John was well known as helpful to his students, and a long line of them invariably waited outside his office for the chance to chat with him.   

On the morning of my Fed Courts exam, I was cramming desperately in the Law School building and looked up to see John standing over me. He told me there was an opening for a district court clerkship downtown in Manhattan, and if I was interested he could set up an interview for me the next day; was I interested? Well, was I? Would I be willing to change utterly the expected course of my life and career? Hell yes, was my answer. (You can imagine my trouble concentrating on the exam at that point! I survived.) The interview didn't pan out, but with his help and encouragement I looked for off-season clerkship openings elsewhere.  Ultimately--and thanks to another friend, Trevor Morrison, then a graduating student at the Law School--I ended up interviewing successfully with Judge Ed Carnes of the Eleventh Circuit. During the interview, Judge Carnes made clear to me that John's glowing recommendation had counted for much. (My love of barbecue probably supplied the rest of the balance in my favor.) Although I'd been to Alabama, I certainly did not anticipate when I came to New York as a young man that year that I would end up living in Alabama, then or later. But there it was. My life had been changed. And one change led to another: practicing law in the United States in Washington; meeting in Washington, and marrying, my wonderful wife and partner in life; and ultimately finding some success in teaching law in the United States. When I spent a semester in the spring of 2016 teaching a class on the First Amendment and a seminar on oaths as a visitor at Harvard, much of the joy of doing so consisted in finding myself as an actual colleague to John, who had changed my life beyond all anticipation. Even now, I have just finished a semester of using his casebook and consulting his academic writing in teaching Leg-Reg. Throughout, John has been a warm, friendly, decent, and encouraging figure: one of three people (with Kent and Mike) in the legal academy, plus a half-dozen or so incredible orthopedic surgeons over the past ten-plus years, who have made this life possible.

I'm delighted for John, and doubly delighted for Harvard, at the news of his appointment. The limited and closely networked nature of the American legal academy leads to a lot of connections and a heap of public flattery. But it does not preclude genuine kindness, and the humble expression of genuine gratitude for kind acts. I can never repay to John, or to Kent or Mike, the debt I owe them. But ever since then, I have always considered it an obligation to them, and a fundamental part of my job, to try to pay forward their generosity and encouragement. On those occasions over the years when I have spotted some young person--a student, a junior scholar, even (or especially) someone I have never met but whose work I have admired from afar--and done what little can to encourage and advance them, to commend them or their work to others, and so on--any kindness or effort involved have not been mine but John, Kent, and Mike's. If I have occasionally helped someone else out, and I hope I have, it has really been John and the others changing someone's life yet again, albeit at one remove. We are an academic, scholarly, and human community, at our best, and the kind acts that made us a part of that community, when repaid, enlarge and strengthen that community. John is a friend, a mentor, a great resource as a scholar, and a model to emulate as a teacher and person. I am overjoyed by his appointment. May he serve well and happily.      

Posted by Paul Horwitz on June 1, 2017 at 11:58 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, May 31, 2017

Domestication or Absolute Resistance? A Semi-Supreme-Court Symposium Question

I'm not sure this post is a direct contribution to the ongoing Supreme Court symposium here. Indeed, insofar as it doesn't much address current decisions, except for those who are eager to read them as tea leaves for the future, it definitely isn't a direct contribution. But this basic thought has been on my mind for several months now, and although it's appeared here and there in recent posts, I wanted to put it directly in a post of its own. It certainly will be relevant for the next couple of Terms of the Supreme Court, and is far more relevant in watching the ongoing activity of the lower courts, whose work is largely separate from and often not even much influenced by what goes on at First Street. 

There has been a lot of talk, influenced by recent lower court opinions on the so-called travel ban (or, more propagandistically, "Muslim ban") and other administration activity, about lower courts developing a form of what some critics call "TrumpLaw," law responding to and designed especially for the Trump administration. Of course, like "Muslim ban," the label "TrumpLaw" is a form of propaganda, an attempt to argue a particular contestable point in the guise of merely describing an alleged phenomenon. But the phrase, or at least the basic thesis, should not be wholly anathema to supporters of the lower courts' recent moves. Many of them have made forceful, sometimes persuasive, arguments that the courts should act with particular regard to this administration and its actions and foibles--that, for instance, this administration requires a change to or total abandonment of the usual substantial judicial deference to actions and assertions by the executive branch. The difference, perhaps, is that "TrumpLaw" may be seen as a radical departure from existing law and in effect a lawless set of actions, while on a friendlier view, what courts do when they respond to actual circumstances on the ground is just "law" (pun on "just" intended), adapting itself to the circumstances. If the facts justifying the usual deference change, then the usual level of deference necessarily changes, and this is just regular law at work, not a departure from law. On this view, what courts are doing is fully in line with some classic views of separation of powers, in which one branch must perforce act when another branch shows flaws and failings.

As a matter of law and normative views, I have problems with some of what the lower courts have come up with, especially in the travel ban cases. But I am less concerned about that, or about "TrumpLaw" as such, than with the possibility that there is a lack of clarity and consensus about what "TrumpLaw" should be aiming to achieve. Where courts take even fully justified aggressive actions, there are reasons to worry about the precedent they are creating and its application in future cases. That concern eases or intensifies depending on what their goal or endgame is. And I do not think the lower courts either have a consensus on this or have even thought about it much in these terms. Like most of us (present company excepted, of course), they are responding to circumstances as they arrive, influenced by a fiery public discussion, and may think that the urgency of the situation takes precedence over such long-term thinking. I think that's dangerous. Without such a long-term vision, individual cases will build on each other and achieve momentum--maybe good, maybe bad. It is certainly worth thinking about these questions as they go about their current work.

Keeping in mind the usual shortcomings of binary descriptions of this sort, I think there are two possible goals lower courts--and eventually the Supreme Court--might be aiming at:

1) Domestication. Courts' responses to the Trump administration and its actions could be aimed at domesticating the administration. What I mean by domestication is that they could attempt to make the administration act more professionally and conventionally, to behave more like more establishment administrations rather than like an arbitrary, populist, or aggressive administration that is often at war with its own professional ranks (to the extent they exist in this understaffed administration) and seemingly eager to dispense with the conventional ways of doing things. Take deference. Faced with a problematic executive order, the courts could insist that the administration engage in more communication and consultation within the administration, and arrive at particular executive orders only after those orders have gone through the usual process of internal examination and criticism, careful drafting, proper legal advice, and the establishment of particular reasons for acting. They could, in short, use deference or the lack thereof to force the administration to go back to the drawing board and do it "right," or at least "right" in light of prior conventional executive branch conduct. There have been some traces of this in the opinions issued so far, which have, for instance, emphasized the lack of consultation within the executive branch and the shutting out of various participants in the usual policy formation process. But under the domestication approach, if the administration went back to the drawing board and complied with these instructions, the courts would then return to the usual level of deference, even in cases where the judges themselves might consider the substantive policies themselves ill-advised or worse. 

2) Resistance vel non. On one reading of the travel ban cases, including decisions at the appellate level and decisions dealing with the revised travel ban, the lower courts have gone beyond simple domestication as a goal. Their aggressive and creative use of doctrine has not been aimed at trying to make the administration more professional and conventional, while leaving it to make policy choices with which judges (and establishment figures, left and right) might disagree; rather, it constitutes utter resistance to the Trump administration and its policies. I mean this descriptively, not critically. Beyond the usual argument that even a conventional administration must be resisted when it trenches on individual rights (a superficially attractive point, although probably more questionable than this rhetoric makes it seem), one might argue that the worse and more dangerous the administration's actions are, the more necessary it is to resist them per se. Domestication alone, which would allow the administration to act dangerously while ensuring, by insisting on the kinds of procedures that insulate an administration action from aggressive judicial review, that the policies that result from it are not easily vulnerable to legal challenge, is not only not enough: it is positively harmful. The goal here is not regularity, consultation and communication, and procedural propriety without regard to substantive policy, but substantive "justice," with all the power and vagueness contained in that term. All this, as I say, can be argued to be justified. Its long-term implications, however, are more dangerous and suggest a potentially aggrandizing and openly political judicial branch, whatever the eventual policy or administration to which this approach might be applied. Beyond simple left-right division, it also suggests a strong resistance of the clerisy to any threats to the establishment itself. Although it might be aimed at even relatively conventional administrations, on the basis of ideologically driven policy disagreements, it certainly suggests a specific tendency to view populism itself as illegitimate and subject to aggressive judicial counteraction. That is a pretty strong normative statement, and one that it is harder to say is required by the Constitution itself.    

These two approaches can both be spotted in the travel ban cases and in much public and judicial commentary on the Trump administration. They will often overlap in particular cases. But they are definitely not the same, and the differences between them will become more apparent the longer the administration continues, and the more individual judicial decisions there are. Their long-term implications and costs and benefits are very different. As a general matter, I prefer the domestication model, and disagree with the current judicial decisions insofar as they show signs of resistance as such rather than a focus on domestication. But for present purposes I am not arguing strongly for one model over the other. I am open to arguments that domestication is not enough and that resistance is required, although I'm not convinced. And I am certainly open to arguments about the relative, and different, costs, benefits, and long-term dangers--not least to democratic legitimacy--of either approach. 

Regardless of my own position about which approach is preferable, I think these are the two main options available to the courts right now; that they are not the same; that each has its own positive and negative aspects and long-term implications; and that the courts themselves have tended to mix the two approaches without sufficient thought about which approach to take. I would feel a lot better if there were more open consideration, from judges, scholars, and commentators, about which goal to pursue. I think the better goal is to use legal doctrine to force the administration to do a more professional job, which in the end should place even terrible policies (constitutional concerns aside) more clearly in the realm of politics, not to be disturbed by the courts but rather left to the political branches and the public. It is certainly possible to think that an administration policy is terrible, the worst one has seen, while thinking it is sufficiently legally proper to be a matter of political debate rather than judicial intervention. But I am open to being persuaded otherwise. What worries me is the sense that courts are acting in the moment, without either considering these two different models or making clear which one they are aiming for. They should be more self-conscious about this and more transparent about their goals, even if that transparency makes the goal harder to achieve without critical reaction. In the meantime, rather than simply supporting or opposing these decisions tout court, scholars and public commentators (and, of course, the increasing number of public commentators who quite incidentally are also scholars, although not acting in an especially scholarly fashion) should put these ideas on their radar screen, be straightforward about their own preferences, and use these two models to provide a more sensitive analysis of the decisions we are getting from the lower courts. 

The connection to the Supreme Court, of course, is that as the Court is confronted with these and other cases, it too will have to come up with a general approach. Prognosticators who talk in general terms about who will "win" in these cases, generally by engaging in armchair analysis of the ambitions and fears of Justice Kennedy and a couple of other Justices--and often trying to signal Justice Kennedy that he must follow one path or another if he wants to secure his reputation and legacy or to manipulate him into a particular vote--talk mostly and only about the administration "winning" or "losing." But I suspect that if the Court does take on a more active role in response to this administration, the more important question will be whether a majority of the Court takes a domestication or a resistance approach rather than who wins or loses. Justice Kennedy, for instance, could vote against the administration while taking either approach. To the extent that they are not simply working the refs, and there is a lot of that going on, I think progressive "academic" writers engaged in public commentary, on Twitter or elsewhere, have been overly optimistic about the likely outcome of these cases. I think their predictions would be better and more thoughtful if they talked more about the kind of approach the Court should or will take in responding to the administration, rather than in terms of simple wins or losses. I think they would also be more influential in their efforts to sway the Court or individual justices. I think Justice Kennedy could be persuaded to engage in a domestication approach more easily than a pure resistance approach, and so could some conservative justices. Regardless, I think this is the question that confronts the Supreme Court, and I hope the justices and others think more, and more openly, about this. I do not assume one or the other approach will win permanent majorities. But I do think it describes what we will see happening on the Supreme Court over the next couple of years.   

Posted by Paul Horwitz on May 31, 2017 at 10:56 AM in 2016-17 End of Term, Paul Horwitz | Permalink | Comments (0)

Thursday, May 18, 2017

The "Fellowship Track": A Plea for Second Thoughts

Building on my earlier post and the comments on it, including mine: There is some agreement there, which I share, that a major contributing factor to the kinds of standardized rhetorical strategies and approaches we are seeing in a lot of (well-placed) law review articles these days--novelty or "under-theorized" claims that are excessive in quantity and substance; sometimes glib Clever Labels strategies; grand claims about the article's importance; overbreadth in treatment; efforts to turn (or portray) what might have been successful and modest "base hit" pieces into home runs, thus making it difficult to dig through the grand claims to find the valuable substantive core and raising the likelihood of fly balls; and so on--is the move to a fellowship model in training and hiring law professors.

As I say below, I think there are reasons for this move and that it has a number of virtues. But I think there has been too little consideration and open discussion of the model's flaws and dangers. In particular, those who run these programs and train the fellows at the high-ranked schools that generate many fellows, including the most successful ones, have not been terribly vocal in discussing what they do and its costs and benefits, whatever internal discussions they may (or may not) be having about them. That's especially dangerous because when it comes to hiring, faculties often consist of a few influential opinion-movers and a fair number of more passive voters, many of whom neither follow the trends closely nor think much about them. They also tend to follow the lead of the elite schools. That means a hiring trend can build easily and without much discussion, especially if the opinion-movers at the hiring schools are (as they sometimes or often are) just chasing the metrics or internalizing trends in the community, without second-guessing these criteria or the trend itself. And there a couple of other reasons, also covered below, why this trend can build without much second-guessing, especially public second-guessing.

One of my favorite movie quotes--I've used it in an article or two--is from Miller's Crossing: "I'd worry a lot less if I thought you were worrying enough." We're not worrying enough about this trend. I emphasize again that there are fair reasons for this model to develop. I'm not trying to throw out the baby (or the babies--the entry-level candidate/fellows themselves) with the bathwater. Criticizing an approach is not the same as urging that we get rid of it entirely. But we do need much more thinking and discussion, and more criticism, of the burgeoning fellowship model. 

As always, it's a long post. I've spared you by giving the thesis above. Read the rest at your leisure and at your own peril. Comments welcome.  

 The fellowship model can, on the whole, be seen as a kind of substitute or proxy for Ph.D studies in other disciplines. It doesn't serve all the same functions; perhaps most prominently, it's not clear that elite fellows at law schools generally use their time to acquire and absorb a canon, in legal scholarship generally or in their own field. But it does provide some of the other functions of a doctoral program. Perhaps most centrally, going into a fellowship program, one that increasingly lasts longer than one or two years and extends into quasi-post-graduate berths, serves the same winnowing and signaling function that a doctoral program does. A well-credentialed and potentially talented young lawyer who takes the fellowship path signals a strong interest in a career in legal scholarship and teaching, partly because he or she shows a willingness to take an income hit for the sake of a long-term academic career. (This also, on the margins after accounting for stipends and scholarships, makes it less likely that the entry-level population will be diverse across a range of levels, and more likely that it will be either relatively financially well-off, or that it possesses enough elite social capital to know about the fellowship path in the first place and successfully obtain a fellowship, or both.) Whatever earning capacity as a lawyer one of these fellows might have had if they remained in practice while writing on the side (which is difficult), they signal a willingness to abandon that path in favor of the academy. Indeed, by making themselves less employable in legal practice--why hire a former A student with a court of appeals clerkship under her belt as an associate when that person has been out of practice for two to five years? There are plenty of A or B students with clerkships who have remained in the actual practice of law--they show a willingness to burn their bridges out of the legal academy. That makes them surer bets for hiring law schools, especially given that tenure votes no longer serve a significant winnowing function for law schools. 

And, of course, they do research and writing while serving as fellows, learn about their subject (as an academic subject, at least), and sometimes publish superbly (by standard if flawed criteria). They also gain the time and resources to do empirical work that's difficult to do as a junior scholar working toward tenure and that many law schools are looking for in candidates. As or more important, they learn the "talk" and "walk" of the academic culture, and often get significant mentoring and advice about job-talks and other elements of the hiring process. By the time they go on the market, they look, talk, and walk like a law professor, have a better publication record than many existing professors, and have a demonstrable commitment to staying and working productively in the legal academy over a long time.

I won't rehearse the standard practical-vs.-academic or practice-vs.-theory arguments here. The fellowship model, and the law school hiring model generally, has routinely been criticized on this basis on the comment pages of every law blog. Without taking a strong position on that standard debate, I am glad the issue has been and continues to be raised, if not always terribly subtly or charitably. It more than deserves a place in the discussion. Happily, others have and will continue to cover that ground--and they should.

I will say that, keeping that debate in mind but in the background, all the elements of the fellowship model that I have described above, and no doubt other factors, are arguably positives. Although there is a tremendous amount to be said for hiring scholars who are also proven lawyers with serious practical experience and may keep a finger in that pie, there is also--to the extent we continue to insist on standard scholarly/academic criteria--a higher potential failure rate in such a crop. Entrants from such a pool may also take longer to get on their feet, while fellows are generally already well-published and well-prepared for the job. And, for historical reasons at least, law schools worry about hiring people who are "retiring into the legal academy," and who may turn out to be (on some measures) deadweight on the faculty for decades. Law schools have experienced many interviews and job talks by non-fellow candidates who are still very wobbly by standard measures. By contrast, the average level of quality and confidence of well-trained and mentored fellows is very high. 

I do not think any of these concerns are knockout punches in favor of the fellowship model or against hiring more practitioners, for several reasons. First there are the standard arguments in favor of practice and practical experience, which are out there and need not be rehearsed here. Then there is the question whether the "success" and "failure" we worry about are being judged according to faulty criteria. A practitioner-teacher may provide plenty of value to a law school and its students over decades, whether he or she publishes much or not. That's hardly "deadweight," although clearly some faculty, either of the practitioner or the scholarly model, do become deadweight. And one response to all this could be to actually take a chance on more non-fellow types, and use meaningful tenure votes to winnow out those who turned out to be bad bets by standard criteria, instead of acting as if anyone who has been hired and has managed to turn out three or four okay articles and average teaching evals has some kind of right to permanent employment. My basic point is that there are reasons to think well of the fellowship model. That is certainly true as long as we hold good scholarship to be a duty and desideratum in the legal academy, as I believe we should (which does not by any means rule out changing the mix to include more practitioner types). Let's give the fellowship model its due.

What, then, are the downsides, other than the standard practice-vs.-theory debate? There are quite a few, of which this is a decidedly non-exhaustive list. Others should feel free to supplement it. Some of them are "hard" points, and some are "soft" or more impressionistic or cultural points. 

1) Given the possibility that those who don't succeed in getting jobs in the legal academy after going the fellowship route may suffer diminished job prospects by taking themselves out of practice, we might be concerned about that, even if we treat this as a knowing and voluntary choice on their part. That's especially true if hiring numbers stay low relative to even the fellowship applicant pool. (As an aside, we certainly should have doubts about expanding fellowship programs, especially outside of the top five or ten schools. Those schools lower down the chain that have such programs might consider using them mostly to select and groom a couple of their best graduates with a potential interest in and talent for teaching, with an eye toward hiring those fellows at their own schools.) 

2) We might worry about what we are teaching these fellows. I will say it again: Every member of a hiring committee, and indeed every voting member of a law faculty, as well as the candidates themselves, should read Martha Nussbaum's classic short article Cooking for a Job: The Law School Hiring Process. Nussbaum asks whether the process is "effective in identifying good scholars, as opposed to good rhetoricians." She is concerned with the application of "nebulous standards": "items such as 'brilliance' and 'star quality' are frequently mentioned," and such standards are hard to pinpoint and subject to distorting influences. The process, she writes, favors "a certain type of individual, who combines obsequiousness with glibness and aggressiveness," over the reticent, shy, contemplative, but careful and sound scholar. Promising scholars may flunk "lunch," or the job talk, because they don't display a command of the bells and whistles of academic lingo or give a polished performance. Presciently, Nussbaum worried that such a process would "produce[ ] young scholars who have a confused sense of what their purpose is. Are they supposed to be good rhetoricians or good scholars? Are they supposed to spend years working toward a difficult truth, or to come up with catchy phrases and slogans that will market their ideas to an audience?" 

All these things are in evidence in the fellowship path and the performance of fellows in the hiring process. The careful mentoring, honing of the job talk paper, and multiple rehearsals of the job talk and interviews has resulted in an increase in the superficial average quality of our candidates. But many of the virtues we see are indeed of the rhetorical sort. Answers to tough questions are well-rehearsed and sound good. But are they good in substance? I routinely see well-trained fellows at job talks who answer one set of (supportive) questions by making grand claims about the importance and sweep of their recommendations, and then respond to critical questions about the implications or applicability of a paper by emphasizing the suddenly narrow scope of their paper and denying that it has any broader implications, or who appear to have never seriously considered those implications. Surely such answers suggest the surface-level strategics of the talk rather than a capacity for deeper reflection. Some of this is tied up with politics, but that is not only a matter of the actual politics of the fellows (generally one-sided) or their mentors (same, almost certainly exacerbated by the rise of fellowships in "centers" or programs that are quite explicitly political and favor only one set of views or policies, and whose fellows are treated at some level as shock troops being prepared for the legal academy). It's also, in part, a strategic decision to appeal to the legal academy's mostly liberal and reformist views. If the point of your paper is to recommend that the courts wield an enormous hammer, you ought to be prepared to consider when and whether it should or inevitably will be wielded for other purposes. I rarely find candidates who are willing to concede openly, at the risk of alienating politically like-minded members of the faculty, that the argument they have developed might be applicable for very different reasons by very different people, and who are then willing to discuss why the proposal is still worth it or indeed why that possibility should be welcomed. If more faculty at job talks were willing to cut to the jugular vein of a job talk paper (they often are not, or lack the expertise to do so; they may not even have read the paper), they would get at these issues better and demand deeper answers. Often the answers are superficially satisfying but not deeply serious. As I wrote, a lot of job talk papers coming out of the fellowship program are finely honed and look extremely impressive, but sometimes are seeming home runs that cleverly conceal a paper that is either a failed pop fly or a base hit with grandiose trappings.  

3) Tied to this point is the apparent reticence or, perhaps, lack of reflectiveness of the directors of the fellowship programs themselves. I want to tread carefully and not judge prematurely. Perhaps these directors (although they change often enough to hamper that sort of reflection) are thinking carefully about these concerns. But they certainly are not talking much about them, and certainly not openly and with the wider legal academy as an audience. It is, of course, possible that they are not reflective on these points, or that--especially as the legal academy comes to be filled with those who have already come through this process and internalized its values--they are not aware of them or deny that they are concerns. Add to this the understandable desire that their fellows should succeed in getting jobs. That means they will give whatever advice works in the hiring process. Over time, that advice, even if it was initially strategic and self-aware, will gradually and osmotically become part of the worldview of those directing and going through the programs. (Every fellowship program and mentor should devote some time to pushing their fellows to think about why all the advice they are getting may be wrong or dangerous for scholarship and teaching itself, and urging them to reach their own judgments when the time comes for them to make their own career decisions and vote on job candidates. Do they do this?) Elite law schools and professors, in my view and my partial experience, often have a fairly narrow range of focus and experience, and take for granted the standards that got them and their fellows where they are. Many or most of them know much less about life in the academic trenches at lower-ranked law schools than one might imagine. (Certainly my experience is that their advice to candidates choosing among job offers suggests just that.) It is easier for them just to see the successes and not count the externalized costs. They may lack the information, basis, or incentive to second-guess what they are doing and the kinds of lessons they are instilling. They may prefer "brilliance" over soundness because their own environment prizes brilliance.

4) As what I've said so far suggests, I'm worried in a more impressionistic sense about the effects of all this on the overall culture, both of the fellowship programs themselves and ultimately of the legal academy. As I wrote in my last post, I think it's only superficially cynical to think that most professors know what the game is and know that they are playing it, without buying into it, although a number of people have written to me to say just that. Such a position is possible, but contrary to human nature and difficult to sustain over time. Eventually, people internalize and rationalize the values they have been taught. They stop thinking about novelty paragraphs as a mere tactic, and grow to think of them first as a necessity and then as a virtue. They first over-value glib "brilliance," and then think of it as a sound criterion. It's not that they disdain substance, but it becomes easier for them to focus less on it or to forgive papers that are longer on brilliance than on soundness. That happens first at the level of the fellowship programs and their directors, and then at the level of the fellows they indoctrinate. Then those fellows seed the academy, and, lo and behold, many of them apply the same standards and replicate themselves when hiring new candidates. They treat the strategic choices they made to get a job as goods in themselves and as positive desiderata in examining new job seekers. Nussbaum's concerns become a cultural virus, and eventually just the way things are.

I said above the fold that there were "other reasons . . . why this trend can build without much second-guessing, especially public second-guessing." Let me build to my conclusion with some of those reasons. First, there's the Wizard of Oz problem. The elite schools that have fellowship programs and mentor fellows are offering strategic advice for fellows to help them get jobs, according to the criteria that law schools are likely to apply--or the criteria they think law schools are likely to apply, but this ends up becoming a self-fulfilling prediction. If they were to talk openly about some of these stratagems, let alone the problems with them, it would hardly benefit their fellows. The first rule of Fight Club is, well, you know. If they are reflective about these concerns, and I don't know whether they are or not, they have a strong incentive to keep it to themselves.

Second, the hiring law schools want to look good with their hires in everyone else's eyes. (Faculties also want to look good in their own eyes, and individual faculty members want to look good in their colleagues' eyes.) This favors taking the standard existing criteria for granted, no matter how much agreement there is that these criteria are flawed. Let me build on this with a hypothetical. 

Let's say almost everyone agrees that substance matters more than placement and that placement is a poor proxy for substance. They conclude that Candidate One, a fellow who has published in Virginia and NYU (these are randomly chosen top law reviews), is doing "brilliant" work but that the work is better at appealing to elite law review editors than it is good in itself. Moreover, Candidate One has given a nice polished job talk and has great recommendations from impressive mentors. By contrast, Candidate Two, who is in practice and has few or no influential mentors but has been noticed positively by people in her field, has published in Baylor and a tertiary Texas journal (again randomly chosen), and is more halting in her job talk. But there is real soundness behind the pieces, which are (commendably) narrow but excellent and suggest the promise of more genuinely valuable work being done on the subject. And the "halting" answers suggest a genuine willingness to grapple with real questions and to revise one's views as appropriate, or to acknowledge the costs of one's approach and/or be less bold and more narrow in one's conclusions. Which candidate to hire?

Hiring Candidate Two won't make a splash when it is announced. Candidate One is likely, because she is skilled at the relevant tactics and has active (and sometimes only semi-scrupulous) mentors who will lobby the law reviews, and because of the Matthew Effect, to continue to place well, although she may also continue to have a hollowness at the core of her work. Candidate Two, having started with lower-ranked journals, may remain ghettoized there, no matter how good her work actually is. Faculty members are often insecure about judging candidates, especially candidates outside their field. The fact that the elite world is ready to reward Candidate One, that she has multiple offers, and that this does after all suggest she will do very well by standard criteria, all may push the voting faculty toward the "safe" choice. Influential members of their own faculty may share a belief in the standard criteria and be highly concerned with metrics, US News rankings, and other elite measures. They will find it easy to ridicule the choice of Candidate Two as damaging to the law school's reputation and future in a competitive and reputation- and ranking-obsessed legal academic culture. Even if the faculty at this school strongly agree that substance matters more than placement and that "brilliance" is a snare for the unwary and status-obsessed, they know or believe that the rest of the legal academy thinks otherwise, and want to look good in the eyes of that community. These again are reasons to make the "safe" choice of Candidate One. And once one moves to actual hiring votes between two competing candidates, the discussion usually becomes polarized and exaggerated. The virtues of Candidate One will be exaggerated and extolled and her flaws, which are harder to pin down by reference to conventional external criteria, will be downplayed and excused as a function of youth. Candidate Two will be exaggeratedly dismissed as an also-ran or an unimpressive hire. Safety, insecurity, search costs, and peer pressure will lean in favor of Candidate One and against Candidate Two, especially if the knowledge that almost everyone who reaches a tenure vote succeeds makes it less attractive and more costly to take a "chance" on Candidate Two.      

Finally, and fascinatingly to me, there is the question of how such public discussions would be seen as affecting the well-being of the fellows themselves. Imagine writing a highly critical piece or, let's say, a post on Prawfs about the glibness and "brilliance" of candidates coming out of the fellowship market, and the dangers of such an approach and the criteria and standards of judgment that undergird it. Even if, as I have here, one makes clear that many of these candidates really are good and that the fellowship model really does have much to recommend it, the author can easily worry about whether he is sending a message to his recently hired colleagues or people he is about to meet in the next hiring season. I value all my new colleagues, whatever standards were involved in their hiring and whatever virtues or flaws they may have, and want them to feel welcome and supported. I may become good friends with them. That's even, or perhaps especially, true of those colleagues I might not have supported in the hiring process. Once the vote's over, everyone should rally round and do their best to support, encourage, mentor, and advance the career of the new colleague. I consider that a strong duty, and I think I have generally met it. But I also believe in the value of standing outside our hiring processes and considering and openly discussing our culture and the imperfect standards and approaches it embodies. That's a big part of why I still (occasionally) blog. If I don't want to risk offending a new or potential colleague, the greater incentive is to just keep my mouth shut and play the game, or at least allow the game to be played without talking about it. (Other than through cynical and knowing face-to-face gossip, which is plentiful and deplorable in the legal academy. Full many a candid, sometimes nasty but often informative, discussion is born to bloom in the faculty lounge and die unheard by the wider world.) And I am, I think, slightly more willing to air this kind of dirty laundry than many of my colleagues at large, some of whom are reluctant to do so, many of whom worry about offending others, and more than a few of whom are not especially reflective about these sorts of issues in the first place. Some might also worry that if they talked openly about these issues, mentors and program directors at elite schools might dry up the pipeline to their school, or that they themselves will suffer if they ever come up as lateral candidates or otherwise want to benefit from friendships and connections to the elite schools. I would like to benefit from those too! The academy fancies itself willing to speak truth to power, but that much less often embraces academics speaking about their own community and social and professional networks; then one suddenly hears a lot more about prudence and politics and much less about fearlessness or candor. The smart money and the prudent choice counsel silence, even for those who are interested in and self-reflective about these issues. 

I'll close where I began, by emphasizing that the fellowship model has much to recommend it, that the average level of quality and standardization in job candidates has increased dramatically since its rise, and that I am not urging us to get rid of it. Even some of those programs or individual fellows who exemplarize some of the flaws and concerns I have aired here are excellent candidates and strong scholars. Some of them have all the virtues and few of the flaws, and some have some of the flaws but many virtues, with the hope that the flaws will straighten themselves out with time and experience--although, as long as our culture doesn't change significantly, I'm worried that the latter is less likely to happen. Sometimes, maybe even most of the time, Candidate One actually is a better choice than Candidate Two.  

Nevertheless, there are genuine concerns to be raised about the fellowship track and the effects it may be having on the broader legal academic culture, especially when combined with such pre-existing factors as status and rankings obsession, the law review process, the outsized influence and often narrow perspectives of elite schools, and the culture and mechanics of the hiring process and of law schools themselves. Without treating the fellowship track and its rise as all good or all bad, we--and that includes the schools and individuals that run these programs themselves, and the fellows too--ought to be carefully and publicly toting up their costs and benefits, thinking and talking about their relationship to and influence on other aspects of the system, and considering whether there are ways to get more of the benefits while dealing with some of those costs. We have nothing to lose but our reticence. 

  

 

Posted by Paul Horwitz on May 18, 2017 at 02:45 PM in Paul Horwitz | Permalink | Comments (25)

Tuesday, May 16, 2017

Connecting the Law Review Dots

I quite enjoyed Benjamin's post on the overused "under-theorized" line in law review articles. As his link to an old post of mine suggests, it is on a topic dear to my obsessive little heart.

I have no great quarrels with his post, but I would suggest that there is no actual paradox at work. Perhaps there would be if calling something under-theorized were sincere and accurate most of the time that this language is used. But I suspect that it isn't. Sometimes, calling a topic under-theorized is just throat-clearing. Often, it's strategic rhetoric for purposes of placement. Much of the time, it is somewhere in between that and a slightly but importantly inaccurate way of defending one's decision to write about a particular topic. If, instead of the standard and ostensibly impressive-sounding--the less impressive the more often you see it; paragraphs that could be saved as boilerplate are not really impressive, but they are aimed at 24-year-olds who have not seen them hundreds of times before--"under-theorized paragraph," authors wrote what they actually mean, and in plain English, we would more often see something like the following: "[X] is an interesting topic. Plenty of interesting things have been said about it, but they have not exhausted interest in the issue (my interest, at least). Even if they have, I have a few things to say about it too." I would welcome that sort of candor, and less standard-issue academic verbiage. 

Benjamin's post is also arguably connected to Andrew's post about "game-changing" law review articles, as a commenter on that post suggests. And it is connected to another pet peeve of mine, also noted in the comments: the equally standard-issue "novelty paragraph." Law professors routinely write about issues that have been written about before--quite understandably, in my view, since little is new under the sun and people often like to write about old but big and interesting questions. But law professors also like fancy placements and the credentialization, platform, and opportunities for advancement that come along with them. There are three standard strategies for trying to satisfy both urges. First, one can claim--usually ridiculously--that this is the very first article to deal with X, or something of the sort. That's the novelty strategy. Usually and amusingly, the sentence asserting that an article is The First Article on a topic is accompanied by a footnote along the lines of, "Of course, there are honorable exceptions..." That footnote then lists some of the prominent prior articles that, as it turns out, also address the topic that this article is supposed to be the very first to address. Authors, it seems, are willing to do both things--to claim that an article is The First, and to cite prior articles on the same topic--and law review editors are willing not only to stomach this, but to reward them for it.

There appear to be few credible limits to this strategy. But in some cases, either the evidence of prior treatment is overwhelming, or the author has a reasonable amount of shame or integrity. In those cases, the thing to do is break out the second strategy: the "under-theorized" strategy. Yes, lots of people have written about X before. But X remains "under-theorized." And that is this article's reason to exist and claim its own share of the spotlight. The under-theorized paragraph is thus arguably a sub-category of the novelty paragraph. Or perhaps it could be seen as an alternative strategy for instances when a novelty paragraph would be glaringly false.

A third strategy, one that I think is increasingly popular but less noticed as such, is what we might call the taxonomical or Clever Label strategy. It bears some relation to the other two strategies. Yes, X has been written about before. Yes, it has already been "theorized" plenty. But this article offers a remapping of the well-covered territory, in a way that makes better sense of all those other articles that have come before. That's the standard taxonomical approach. Sometimes, the author will place such implicit stock in the new Clever Label that he or she will not even bother to concede that the territory has already been marched into dust. The implicit claim will not be that the new article is valuable because it offers a way of making sense of the issue that takes into account and builds on the earlier literature, but that the new Clever Label is so great that the label is the novelty. I love some of these articles; hey, the best of them really are clever, and sometimes really do usefully place the earlier literature in a new light, putting different approaches into conversation with each other in a new way. But I am extremely leery of those articles that, TED-talk-like, treat neat new labels and snappy, no-colon-and-subtitle-needed titles as genuinely new and profound substance. They often place well, however. So long as they do, they're not going away.

All of these are strategies for placing articles well, not for placing them as such. It is not hard to place an article somewhere. Rather, these are efforts to convince a young editor at a well-placed law review that the article under submission is not just a fine and creditable discussion of something that has been discussed before but merits continued discussion, but that it adds something sufficiently new and terrific to the mix that it deserves prestigious placement. Most scholars, if they're lucky, turn out singles and doubles, along with the occasional pop fly. Claiming that your article is the first, or the first to properly "theorize," or that it provides the niftiest new labels, is a way of trying to convince editors that everything you do is at least a triple, if not a home run. And that's the connection to Andrew's post on game-changing articles, and the comments on it. If the legal academy and its publishing arm were functioning reasonably well, we would look for a lot more singles and doubles--and in hiring new scholars, we would look for evidence that they could turn out a long succession of solid base hits. But entry-level scholars have for some time now been trained by their schools to turn out articles that at least look like triples or home runs. In reality, many or most of those articles are actually either easily fielded fly balls or carefully disguised singles. All those paragraphs up top--whether they involve novelty claims, "under-theorized" claims, or Clever Labels--are ways of making us think otherwise. It's far from clear to me that this is the best way to encourage good habits or sound scholarship.  

Note that I say "making us think otherwise." Usually, with legal scholarship being the comic and reformist industry that it is, this would be the point for someone to write about how peer review would solve all our problems, by putting into place a system that would not require scholars to aim all these strategies at easily cozened 24-year-old law review editors. That might be true in especially sober or empirically based disciplines. Articles like this make me doubt it is true for all disciplines. Much depends on the soundness of one's peers. And I think there are at least two problems with law as far as this is concerned. First, we appear to be impressed by these strategies. Authors of grandiose articles that provide the illusion of clearing the bleachers, and that place well, do well on the hiring market. It's not the 24-year-olds doing the hiring, so I don't think we can fob off our problems on them alone. Second, all this has been going on long enough that I fear we have internalized all these tactics. If we insist on hiring through the fellowship process, and if fellows are being trained in the use of these strategies, and if they then succeed on the hiring market and mentor and judge the next generation of applicants, then I see little reason to hope that peer review alone will save us from our own sins.

It might save us, if one adopted the cynical view that everyone realizes that these strategies are just that, and that many novelty claims and other such boilerplate should be disregarded in favor of a focus on the substance. But in a field in which everyone on the faculty judges specialist articles when voting on hiring, it's hard to judge soundly on the substance rather than the bells and whistles. And I think this is actually a somewhat naive, first-order form of cynicism. It assumes that everyone is smart enough to know better, and that they are also strong enough to act better when they know better. A more convincing cynical view, to my mind, would conclude that we are not always smart enough to know better; that we suffer from the same cognitive defects as everyone else, and thus are likely to fall for the same tricks as everyone else, especially if we have profited from and internalized those tricks; and that even when we know better, we may lack the strength of will to resist in the face of professional norms, the praise of recommending professors at big schools, and the votes and voices of other members of our own faculty. Even if I am usually aware enough of and peeved enough by the kinds of things I have written about here to spot them when candidates come calling, I am sure I am not always strong enough to stick to my objections in the face of those influences, especially when I know that the strategies work in the wider world and I would like my law school to enjoy enhanced prestige. And I do not think I am significantly weaker-willed than most of my colleagues. So I have little good cheer to offer, other than the faint suggestion that we ought to be spending more of our time looking for solid base hitters than for long-ball hitters. 

Posted by Paul Horwitz on May 16, 2017 at 06:18 PM in Paul Horwitz | Permalink | Comments (10)

Tuesday, April 18, 2017

From Jotwell: "What Will the Federal Government's Resistance to President Trump Look Like?"

My latest contribution to the Constitutional Law section of Jotwell is this piece, titled "What Will the Federal Government's Resistance to President Trump Look Like?" It follows in some senses from my earlier Prawfs post titled "Will the Civil Service Revolt, or Work to Rule, in a Trump Presidency?" It also emphasizes why I think Prof. Jennifer Nou has been doing great and useful work on this subject, and why I think the earlier article by Jessica Bulman-Pozen and David Pozen on Uncivil Obedience is useful and newly timely, even if I also spend a good deal of time in the jot on that article's critics. Some excerpts:

How should one respond to injustice, illegitimacy, or broader threats posed by a democratic governmental regime? Although readers may lump these items together, the commas and “or” matter here, for they are not all the same and the proper response to each may differ. One common answer to some or all of them is civil disobedience. Another, rendered more problematic by the democratic nature of the regime and perhaps by the relative lack of courage of the professional-managerial class, is open rebellion. A third possible response, Jessica Bulman-Pozen and David E. Pozen argued in a valuable, important, and still under-examined 2015 article, is uncivil obedience: a conscientious, communicative, reformist act of strict “conformity with . . . positive law,” “in a manner that calls attention to its own formal legality, while departing from prevailing expectations about how the law will be followed or applied.” . . .

Behind all this, obviously, is President Donald Trump: that extraordinary figure whose extraordinary actions have called forth—demanded, many would insist—extraordinary responses from citizens and scholars alike. Many of the most prominent responses to the new regime have come from citizens, albeit often fairly elite ones: marches, “days without [X],” lawsuits, and the usual collection of group letters, petitions, and op-eds. In that context, it is clearer that thinking about modes of response and resistance to this administration, including resistance within the executive branch, has a strong constitutional law component. (Anyway, as Adrian Vermeule recently observed, administrative law “is sublimated constitutional law just as constitutional law is sublimated theology.”)

Invoking Trump as a justification will no doubt win instant forgiveness for skirting or breaking various “rules,” both in the real world and in academia. As these thoughtful articles—two of them fortunately written before a sense of Trump-derived urgency began shaping and distorting public and academic discourse—demonstrate, however, it is unclear when, whether, and how such behavior should be treated forgivingly. Strategies of resistance shaped in response to exigent circumstances do not necessarily disappear when those circumstances do, and in the meantime they encourage retaliatory counter-strategies. And many citizens’—and academics’—passionate dislike of the administration may lead them to accentuate the positive aspects of these rule-breaking strategies while minimizing or ignoring the negative. This is thus simultaneously a good, bad, and necessary time to think both about both how resistance forms not only to but within the very organs of a constitutional regime, and about the potential dangers of those strategies. . . .

[T]hese resistance practices demand wide-ranging academic analysis, of a sort that neither ignores nor is driven solely by present exigencies . . . [W]e should be grateful that the study (and critique) of uncivil obedience came along when it did—“BT,” as it were—and that Nou continues the job in a calm fashion “AT.” We need much more of this.

Posted by Paul Horwitz on April 18, 2017 at 12:48 PM in Paul Horwitz | Permalink | Comments (0)

Monday, March 20, 2017

The Legal Academy Becomes More Like the Rest of the Academy, Part XVIIII

Via TaxProf Blog and the ABA Journal comes the news that the ABA's Council of the Section of Legal Education and Admissions to the Bar has proposed a rule change to the current ABA standard requiring that more than half of all credit hours offered by accredited law schools be taught by full-time, and hence generally "academic," faculty. The proposal would reduce the required number to one third. Some observations:

1) Interesting! We can expect some good healthy debate and controversy on this one, as well as a fair number of extremely flowery and high-minded statements.

2) None of the sources cited or linked to above offer a discussion of the reasons for the change. Perhaps there was lengthy and thoughtful policy discussion. It seems to me, however, that the reality is that whatever discussions took place were ultimately secondary to the pressure of events on the ground. This is a proposal driven by real or perceived economic necessity, and a desire to legitimate changes that either are already happening--or that might need to happen if law schools are to remain afloat while cutting to the bone. (Whether they should all remain afloat is a separate question.) 

3) On the whole and as an initial matter, I favor the proposal. In a now-ancient book review of Brian Tamanaha's Failing Law Schools, I wrote approvingly of Tamanaha's proposal that we "pare down ABA accreditation requirements that force law schools into a single educational model," so that some schools can maintain the traditional and more "elite" model while others offer a "cheaper and more practically oriented model." Under this approach, "[s]tudents interested in the latter model [would] not be forced to pay for the former," in the sense of having to meet the requirements of, and thus pay for, the elite model whether they want to or not. I noted the high-minded statements that appeared then opposing such a change, and doubtless will reappear in the current discussion, but disagreed with them. For reasons of institutional diversity, among others, I favor the possibility of different models and am not much disturbed by the objection--I would call it a description, really, instead of an objection--that it would lead to a "two-tiered" system. Among other things, I wrote that the objections gave insufficient recognition to "the reality that we already have a two-tier system, albeit one whose pretenses of uniformity drive up the costs across the board." Nor was it clear to me why "a less academically driven legal education would be a 'second-rate' one," as the opponents of such a change argued. For many students and schools, it might be the better education. 

I am still so minded. The usual tendency, at least until 2008 and still to a substantial extent, is for every school to want to be and look like Yale or Harvard, no matter how little sense that makes for particular schools in particular places. (I am reminded of Tom Wolfe's description of Yale architecture students puckishly drawing illustrations of the then-chic "Yale box" appearing on the moon, on the farm, and in other unusual and inapt places.) This is partly a function of law schools' absurd credentialism, lack of imagination, and hierarchy-reproducing tendencies when it comes to hiring and the highly limited backgrounds and cultures from which most law professors spring, and partly a function of their attention to US News rankings and general desire for elite status (for the schools and, just as important, for the faculty themselves). As I wrote then, whatever their deepest wishes, many law schools have already bowed to reality and departed from some of these norms. The proposed rule change gives them more liberty to do so, without requiring it. If some law schools adopt a more practice-driven approach and rely more on practitioners to achieve it, while others are or can afford to emulate the model of a few elite schools, so much the better for institutional diversity and student choice.

4) Schools that take advantage of this model and adopt a more adjunct/practitioner-oriented faculty model, with a smaller academic faculty core and a larger store of adjuncts, will still face the need to do what too few have done: to think creatively and comprehensively about how to turn this congeries of commuters into an actual law school community. They must think about ways to bring those commuters into the school more often, make them a larger part of the intellectual and daily life of the school rather than an afterthought, include them in faculty life and discussion and decision-making, and give them a sense of being members and stakeholders of the law school community. It's a difficult but necessary task to undertake. One assumes that there are various ways to achieve this, and they need not all look the same. 

5) In at least some ways, what happens in the law schools follows what happens in the larger academy, but at a distance--sometimes a great distance. Thus, years after the standard graduate-school model of generating future faculty became the norm for most academic departments, in the past ten or more years law schools have drawn increasingly, when hiring, on fellows and fellowships, which are essentially an echo of or proxy for the graduate-school model. This model creates and seeks out a store of future faculty who are professionalized and acculturated as academics rather than practitioners or amateurs, and who have long since signaled their willingness to forego legal-professional status and income in favor of becoming academics. (We still see arguments that law faculty are foregoing what would otherwise be high-income jobs that would readily be accessible to them. That might be true at the outset of their legal careers, after they have graduated and clerked and perhaps spent a couple of years in practice. By the time they have devoted years to academic study and status, however, they have long since made it more difficult to move into the world of practice, for better and worse. This might justify lower salaries for academic law school faculty members, although that's a question for the market to answer, not for abstract and non-empirical arguments about what these individuals "could" do if they wished.) That makes them surer hiring bets, at least as "academic" faculty, for multiple reasons: they have already published, they already talk the talk of the academy, and they have already made clear their long-term intentions to remain faculty members rather than abandoning the academy for professional work or retiring from practice without contributing greatly to "academic" work.  

This new proposal similarly recapitulates the larger changes that have been written about  and debated so much in the wider academy: namely, the part-timing or adjunctification of the university. Some of the rea$on$ for doing so are no doubt the same, and we can expect some of the same arguments--very real ones, I should acknowledge--to arise here: arguments about the potential for abuse and mistreatment, lack of quality control, corporatization of the university, and so on. I think we should think of this as a partial recapitulation of what has happened elsewhere in the university. But we should not treat the two phenomena as identical, by any means. There is a difference between relying heavily on adjuncts with Ph.D's to teach, say, English Literature, and relying heavily on practicing physicians to provide clinical and practical education to medical students. An adjunct literature professor is generally just a literature professor without job protection; a practicing physician serving as a clinical professor of medicine has another job and set of skills that both maintain his or her independence and provide something distinctive of value to the medical school and its students. Law practitioner adjuncts are closer to the latter analogy than to the former. Not all of the arguments against the mass use of adjuncts elsewhere in the academy will fit in the law school context, and they should not just be parroted here thoughtlessly. But of course we should discuss and think through the implications of changing our model.

* * * 

I should note that I am surely an "academic" faculty member, and some of what I say above is hardly in my own interests. I am happy to try to maintain my own salary and other perquisites, and--although slowed recently and to my own profound guilt by illness--I like being an "academic" academic, want to contribute to the academic and scholarly life of my school and the larger community, and think this life has intellectual value and the capacity to contribute to our intellectual tradition, although I resist making overblown arguments about its immediate or "real-world" value. (I am not averse to changing things up, however, and certainly think there ought to be room for rethinking how each faculty member shapes his or her career. Perhaps sabbaticals should be given more frequently but with the caveat that every other sabbatical must be spent volunteering or practicing as a lawyer; or perhaps the obligation to do something of the kind could be tied to the reduced course loads most of us enjoy. No matter how ethereal some of us have become in our work, we might find work as clerks or runners or junior assistants to state legislators; even spending every day for a year sitting in a courtroom and watching arraignments and pleas would be of some value in enriching our perspective.) I just don't think my own interests, or those of other "academic" legal faculty, are especially important factors or relevant to the analysis.   

        

Posted by Paul Horwitz on March 20, 2017 at 10:29 AM in Paul Horwitz | Permalink | Comments (0)

Tuesday, March 07, 2017

Some Suggestions for Dean Emperor Caron and the Buzzworthy New Regime at Pepperdine

As Brian Leiter enthusiastically announces, tax-law-blogger and blog-impresario Paul Caron, nicknamed in Frank Herbert fashion "Blog Emperor Caron," is about to become "Dean Emperor Caron" at Pepperdine Law School. Before taking a puckish turn with this post, let me say that of course I add my congratulations. I have found Paul lovely to talk with in person and via the occasional email and such. Among his many posts at TaxProf Blog over the years, a great number of them have evidenced his warm and caring relationship with his students and his abiding concern for them. I don't doubt he'll bring that same sensibility to his job as dean. Best wishes, Paul! 

The thought did strike me upon his announcement as dean: Given the blog empire he has long been associated with, what if Pepperdine under his administration decided to deemphasize US News Rankings as a major metric, and focus instead on things like page hits and buzzworthiness? To that end, may I suggest that we offer as a gift to the incoming dean some possible "buzzworthier" titles for courses in the standard law school curriculum. I'll start the ball rolling with two suggestions:

Contracts: Henceforth to be renamed in the Pepperdine curriculum and course catalog "Will This Fantastic New Medical Treatment Keep Your Hands Looking Young and Lovely for Life?" 

Civil Procedure: "86 Ways to Triumph in Court. You Won't Believe Number 56!"

 

Posted by Paul Horwitz on March 7, 2017 at 01:22 PM in Paul Horwitz | Permalink | Comments (5)

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:

ARTICLES

The Disappearance of Religion from Debates about Religious Accommodation

Kathleen A. Brady

20 Lewis & Clark L. Rev. 1093 (2017)

Religious Accommodation, Religious Tradition, and Political Polarization

Marc O. DeGirolami

20 Lewis & Clark L. Rev. 1127 (2017)

Religion and Polarization: Various Relations and How to Contribute Positively Rather than Negatively

Kent Greenawalt

20 Lewis & Clark L. Rev. 1157 (2017)

Kingdom Without End? The Inevitable Expansion of Religious Sovereignty Claims

B. Jessie Hill

20 Lewis & Clark L. Rev. 1177 (2017)

If Liberals Knew Themselves Better, Conservatives Might Like them Better

Andrew Koppelman

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)

The Mystery of Unanimity in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC

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.  

Posted by Paul Horwitz on February 6, 2017 at 10:51 AM in Paul Horwitz | Permalink | Comments (0)

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. 

Posted by Paul Horwitz on February 3, 2017 at 08:53 AM in Paul Horwitz | Permalink | Comments (3)

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.      

Posted by Paul Horwitz on January 16, 2017 at 10:39 AM in Paul Horwitz | Permalink | Comments (2)

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.             

Posted by Paul Horwitz on January 11, 2017 at 09:45 AM in Paul Horwitz | Permalink | Comments (0)

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. 

Posted by Paul Horwitz on January 9, 2017 at 06:57 PM in Paul Horwitz | Permalink | Comments (3)

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! 

  

Posted by Paul Horwitz on January 5, 2017 at 09:22 AM in Paul Horwitz | Permalink | Comments (1)

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.     

Posted by Paul Horwitz on January 4, 2017 at 02:48 PM in Paul Horwitz | Permalink | Comments (0)

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!

 

  

       

Posted by Paul Horwitz on January 4, 2017 at 10:28 AM in Paul Horwitz | Permalink | Comments (8)

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. 

 

Posted by Paul Horwitz on January 3, 2017 at 08:41 AM in Paul Horwitz | Permalink | Comments (2)

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.)  

 

     

Posted by Paul Horwitz on December 21, 2016 at 10:29 AM in Paul Horwitz | Permalink | Comments (0)

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.

 

Posted by Paul Horwitz on November 19, 2016 at 04:10 PM in Paul Horwitz | Permalink | Comments (0)

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." 

Posted by Paul Horwitz on November 18, 2016 at 12:22 PM in Paul Horwitz | Permalink | Comments (1)

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. 

Posted by Paul Horwitz on November 17, 2016 at 07:34 AM in Paul Horwitz | Permalink | Comments (0)

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. 

           

 

        

Posted by Paul Horwitz on November 8, 2016 at 09:52 AM in Paul Horwitz | Permalink | Comments (0)

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.        

 

  

Posted by Paul Horwitz on November 4, 2016 at 11:13 AM in Paul Horwitz | Permalink | Comments (0)

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.       

 

Posted by Paul Horwitz on November 2, 2016 at 11:14 AM in Paul Horwitz | Permalink | Comments (0)

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.

 

Posted by Paul Horwitz on October 21, 2016 at 10:33 AM in Paul Horwitz | Permalink | Comments (1)

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.                  

Posted by Paul Horwitz on October 4, 2016 at 09:53 AM in Paul Horwitz | Permalink | Comments (0)

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.]  

Posted by Paul Horwitz on September 29, 2016 at 11:58 AM in Paul Horwitz | Permalink | Comments (0)

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.     

  

 

Posted by Paul Horwitz on September 9, 2016 at 08:28 AM in Paul Horwitz | Permalink | Comments (0)

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.                    

   

Posted by Paul Horwitz on September 2, 2016 at 08:20 AM in Paul Horwitz | Permalink | Comments (0)

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 (facappts@law.ua.edu). 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:

The University of Alabama seeks applicants for the position of Director for its Elder Law Clinic. The Director oversees and/or conducts all phases of legal advocacy for clinic clients, teaches and supervises clinic students, and manages law clinic staff. The position is for an appointment as assistant or associate professor of clinical legal instruction, with opportunity for promotion and security of position. MINIMUM QUALIFICATIONS: a J.D. degree from an ABA accredited law school, a distinguished academic record, and experience as a clinical teacher or practicing lawyer. Candidates must be licensed to practice law in Alabama or become licensed no later that one year after accepting the position. We seek applications from entry-level and lateral candidates with demonstrated potential for outstanding law practice, clinical education and scholarly achievement.    SALARY and RANK: will be commensurate with experience. Apply  online at http://facultyjobs.ua.edu
 
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:http://www1.eeoc.gov/employers/upload/eeoc_self_print_poster.pdf
 
Requests for reasonable accommodation during the application/interview process should be made to Associate Dean Thomas Ksobiech at (205) 348-4509 or tksobiech@law.ua.edu. The position will remain open until filled. Please refer questions about the hiring process to Professor Jenny Carroll, Chair of the Clinical Appointments Committee for the 2016-2017 academic year, at ClinicSearch@law.ua.edu.
 
3) Assistant/Associate Professor--Director Domestic Violence Law Clinic:
 
The University of Alabama seeks applicants for the position of Director for its Domestic Violence Law Clinic. The Director oversees and/or conducts all phases of legal advocacy for clinic clients, teaches and supervises clinic students, and manages law clinic staff. The position is for an appointment as assistant or associate professor of clinical legal instruction, with opportunity for promotion and security of position. MINIMUM QUALIFICATIONS: a J.D. degree from an ABA accredited law school, a distinguished academic record, and experience as a clinical teacher or practicing lawyer. Candidates must be licensed to practice law in Alabama or become licensed no later that one year after accepting the position. We seek applications from entry-level and lateral candidates with demonstrated potential for outstanding law practice, clinical education and scholarly achievement.    SALARY and RANK: will be commensurate with experience. Apply  online at http://facultyjobs.ua.edu
 
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:http://www1.eeoc.gov/employers/upload/eeoc_self_print_poster.pdf
 
Requests for reasonable accommodation during the application/interview process should be made to Associate Dean Thomas Ksobiech at (205) 348-4509 or tksobiech@law.ua.edu. The position will remain open until filled. Please refer questions about the hiring process to Professor Jenny Carroll, Chair of the Clinical Appointments Committee for the 2016-2017 academic year, at ClinicSearch@law.ua.edu.
 
Comments are closed but contact info can be found in the notices above. 

Posted by Paul Horwitz on August 23, 2016 at 04:12 PM in Paul Horwitz | Permalink | Comments (0)

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. 

       

Posted by Paul Horwitz on July 13, 2016 at 01:04 AM in Paul Horwitz | Permalink | Comments (0)

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.    

Posted by Paul Horwitz on July 11, 2016 at 02:05 PM in Paul Horwitz | Permalink | Comments (12)

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. 

 

 

Posted by Paul Horwitz on June 27, 2016 at 10:18 AM in Paul Horwitz | Permalink | Comments (8)

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.  

Posted by Paul Horwitz on June 24, 2016 at 07:48 AM in Paul Horwitz | Permalink | Comments (0)

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.   

Posted by Paul Horwitz on June 15, 2016 at 12:31 PM in Paul Horwitz | Permalink | Comments (0)

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.

It's an entirely reasonable professional rule, calling to mind, for instance, Senator Frist's silly long-distance diagnosis of Terri Schiavo. Similar strictures cover dues-paying psychologists. It has always drawn criticism and the Trump candidacy is re-raising the issue, as in this article in FiveThirtyEight. (And here is an earlier, non-Trump-related defense of the rule.) As the article notes, a recent paper in the Journal of the American Academy of Psychiatry and the Law Online criticizes the rule, arguing that it "is not only unnecessary but distracts from the deeper dictates of ethics and professionalism." In part, the authors argue that the rule protects the interests of the profession over the psychiatrist's own moral commitments, and that "psychiatrists have a positive obligation to speak publicly in many circumstances, and the right to speak out in others." The writer of the FiveThirtyEight piece interviewed the author and summarizes it in part like this:

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. 

  

 

 

Posted by Paul Horwitz on June 10, 2016 at 11:35 AM in Paul Horwitz | Permalink | Comments (1)

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.       

      

Posted by Paul Horwitz on May 14, 2016 at 08:29 PM in Paul Horwitz | Permalink | Comments (4)

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

of clickbait.)

 

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

[sˆemainein].

Posted by Paul Horwitz on May 9, 2016 at 02:53 PM in Paul Horwitz | Permalink | Comments (0)

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.    

Posted by Paul Horwitz on May 7, 2016 at 11:30 AM in Paul Horwitz | Permalink | Comments (8)