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


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)

Wednesday, May 04, 2016

Trump and Constitutional Law

Like most members of my class, I abhor the possibility, now much stronger, that Donald Trump will become president of the United States. I tend to be an ambivalent technocrat, and so the notion of a blundering, populist, somewhat authoritarian president strikes me as frightening, if also as somewhat in the nature of just desserts for the mandarin class and its frequent distance from, if not borderline contempt for, substantial segments of the American population. I tend to think that he will be somewhat less frightening in reality than in prospect. Campaigning and governing are two separate activities, and even cult-of-personality campaigners must eventually leave many duties to an administration, some of whose senior officers will be more technocratic than Trump himself and much of which will be overseen by an entrenched civil service. Nevertheless, I do not relish the prospect of his presidency. A name like "New Haven" will take on a more literal and ironic meaning, I should think, if Trump is elected.

I am generally uninterested in law professors' politics, and quite uninterested in discussing my own, and so making such a forthright political statement is not my primary goal here. I declare my opposition to his candidacy simply as background for a more academic point, which is that a Trump presidency would be a goldmine for interest in and study of constitutional law. If he should win the presidency, I venture the following predictions:

1) There will be an immense rebirth of interest in the salutary aspects of federalism and separation of powers--on the ground, in popular conversation, and certainly in legal academic work. "Rights" talk, although never non-existent, will take a backseat to "powers" and "structure" talk. Those liberal federalists, like Heather Gerken, whose work has been admired but perhaps seen as somewhat eccentric from the main direction of constitutional study, will be joined by many new adherents, and there will be considerable conservative-liberal crossover in those fields. 

2) Sentiment about congressional gridlock, and especially about congressional gridlock as a justification for creative and unilateral executive action, will shift overnight. Mann and Ornstein will receive many new fans, albeit those new readers will, in effect, mentally convert all the negative adjectives in that book to positive ones. Lawyers and legal scholars who minimized or celebrated President Obama's fairly aggressive use of presidential power will similarly reverse polarity almost immediately.

3) All this is fairly predictable. More interesting to me will be how self-conscious or un-self-conscious the reversal will be. Many legal scholars are both doctrinally grounded--not in the sense that they write a lot about doctrine, but in the sense that their work is grounded on law as a doctrinal tool for action, not on a deeper sense of or attachment to theory--and politically oriented in their work. For such scholars--and perhaps for most of us--things like federalism and separation of powers are purely instrumental tools, to be used as the occasion demands. Given that, I expect that a good deal of this new interest in the value of federalism, separation of powers, and gridlock will be un-self-conscious at first: it will neither acknowledge nor discuss the polarity shift involved. Since some of these scholars will not have written much about structural constitutional law before, they will not have a body of their own written work to fight against, so their shift will be less dramatic, although no less real. Others will barely cite what they have written on past occasions, or distinguish it on questionable grounds.

4) But this will change over time. Constitutional and legal theory change by a process of crude reflective equilibrium. Those of us working in law and religion have had a ringside seat to that phenomenon over the past few years: a slow shift away from an earlier equilibrium happens first more or less silently; then cases with a different set of facts or plaintiffs bring strong disagreement at the level of outcome, and inspire doctrinal criticism; and eventually those criticisms beget new theoretical structures of justification and a shift in the overall center of both theoretical and doctrinal thought. Just so, the newfound interest in federalism and separation of powers as positive qualities will eventually beget new theories to justify and consolidate the shift away from the current center of gravity. How much this happens, and how long it lasts, will depend in large measure on whether Trump (if he wins) secures a second term, and on how much Trump-as-president resembles Trump-as-candidate, and whether both his own inclinations and permanent institutional structures make him less of a populist or authoritarian than people currently fear.

5) As a partial aside, some polling evidence suggests that things like campus activism have contributed somewhat to success of Trump's candidacy. So one possible conclusion will be that the current round of campus and off-campus activism will, unlike most activist movements, have a significant and immediate effect on social change--albeit the effect, with delicious irony, will be the opposite of what most of the activists want. One imagines that the result, over time, will be varied: some activists will question or moderate their attachment to such movements, others will double down on their activism, some college presidents and other establishment figures will lose patience with those movements while others will give them freer rein, and there will be an overall upsurge in polarization around these movements. Students of social movements and social change will have plenty of new data to work with.   

Posted by Paul Horwitz on May 4, 2016 at 10:27 AM in Paul Horwitz | Permalink | Comments (2)

Friday, April 15, 2016

At Least Two More Cheers for Counter-Clerks

The up-side of Facebook is that it allows me to quick-post links and ideas I don't have the time or energy to work up for public discussion. The down-side is that lots of fun potential blog posts go missing, or that, while I'm having that conversation in the limited forum of FB, which I did in this case, someone beats me to the punch in the blogosphere. Eric Segall's post on Monday, talking about Justice Scalia, raised the interesting subject of "counter-clerks": those clerks that Justice Scalia hired to provide an in-chambers "liberal" view as a lens for examination and criticism of his views or opinion drafts. Counter-clerks weren't a huge part of his post, which was mostly about Scalia's position on affirmative action and his originalism. But it did evoke interesting questions about counter-clerks. Now his co-blogger, Mike Dorf, has this post talking directly about counter-clerks and raising "two cheers" for them, concluding this way: "The bottom line is that a willingness to hire counterclerks is a modest indication that a judge takes his professional responsibilities seriously and enjoys the company of people who disagree with him, which indicate positive character traits. But that's about all."

There are a couple of things I would say about counter-clerks, but the most important is simply that the idea of having counter-clerks, especially but probably not exclusively at the Supreme Court, is worthy of much more study than it has received. Although I disagree with various aspects of it, I think Richard Posner's book Divergent Paths is right to argue that we need more study of structural, managerial, and other aspects of the (federal) judiciary. It is a valuable subject in itself, the more so as the judiciary has long since become a large, complex institution rather than a disparate collection of, to use Philip Hamburger's term, individual judicial "offices." If one also believes, pejoratively or otherwise, that the Supreme Court is a "political court," it's also useful to think about potential structural responses to this.

None of this requires one to conclude that counter-clerks are a good idea, or an effective one. But it deserves study and attention. As with thinking about judicial term limits, how to sequence discussions or votes in conference, or other such questions, it's useful in asking about the Court as an institution and what institutional features might benefit from tinkering or change. Maybe more so: lifetime tenure is a formal structural rule and thus highly visible, but in most areas legal scholars would observe that all kinds of sub-constitutional rules and practices (like the use of clerks) are at least as important as the formal ones in reflecting and channeling the work of an institution, and need to be studied.

A look for discussions of counter-clerks doesn't turn up very much. There should be more. Maybe every justice should hire a counter-clerk. Maybe it is a failing of the current Court, and the current justices, or revealing of their understanding of their job or of the current moment on the Court, that they do not all have such a practice more or less formalized. Maybe the counter-clerk idea is a good one but there are better ways to do it. It doesn't have to be organized around political ideology, for instance, although the current justices are political and perhaps it's important to have that internal check; but it could be organized around methodology, or as a matter of having a formal "Devil's advocate" clerk, period. And although I think there are fairly good reasons to hire at least one clerk who definitely does not share the justice's politics or methods, it may be that the formal role of "counter-clerk" should rotate among the clerks. In other areas, legal scholars and social scientists (beginning with Irving Janis) have argued that decision-making groups, or advisors to a decision-maker, need a formal Devil's advocate, to guard against groupthink, polarization, epistemic closure, cascades, and so on, and that the role should be rotated to make sure the advocate is not powerless or routinely dismissed. We may want to think more about whether the Court and its use of clerks needs to take the same approach. 

After the jump, some additional points informed by excellent comments about this from my FB discussion. As usual, it's tl;dr, so feel free to skip it, although the last paragraph is somewhat interesting. 

 The responses received to my post were interesting and certainly made me think of this question differently, although it doesn't alter my view that the practice of having counter-clerks deserves more attention. Let me list them here. Although I draw on that conversation, no doubt I'm not doing full justice to the nameless commenters:

1) Ineffective. Specifically, the suggestion was made that the imbalance of power between justice and clerk is too great for the counter-clerk position to function well enough. I take no position on this, other to note that it's not unique to this court or to the job of law clerk, and may be even stronger in the case of political appointees in the executive branch who are asked to provide unvarnished advice. I'll also note that it's not specific to acting as a counter-clerk: "normal" clerks may also feel pressure to tailor their work to their sense of the justice's priors or preferences, not in the sense of being a faithful amanuensis, but in the sense of failing to raise (or to spot) questions and criticisms.

2) Justice-dependent. Whether a counter-clerk is effective, or (more on this below) whether such a position is necessary as such, may depend on the justice's receptivity to criticism. A justice might have a counter-clerk but be inflexible in his or her position, or have no counter-clerks but be open to argument from his or her clerks. That seems reasonable enough, but not reason enough not to study the idea of the counter-clerk structure. Also, and this is the point of writers who have talked about Devil's advocate structures in other group deliberation situations, the view that if a bunch of agreeable people work with, and argue with, their their receptive boss/justice in an open-ended non-specific way, they will end up airing all that needs to be aired is susceptible to doubt. Whatever their good intentions, they may still collectively fall prey to groupthink or epistemic closure--indeed, egg each other on into a resultantly polarized opinion.

3) Not necessary on ideological grounds. On this view, justice X is not an ideologue, the chambers never discusses ideology, and so this whole framework is not necessary. I pretty strongly doubt the first two parts of this view. In particular, the fact that chambers discussions are about "the law" and not ideology doesn't say much about how affected they are by ideological priors and other factual and value assumptions. (That's even more true if such a chambers ever discusses "policy" as well as "law," if it's not absurd to distinguish between the two.) And I doubt that Scalia's counter-clerks were asked to talk like liberals at a political convention, so much as they were hired with the knowledge that they thought differently from Scalia on some set of political and/or jurisprudential issues and were then asked to push back as lawyers. But I agree that we shouldn't treat ideology too narrowly here, and we're certainly welcome to think about other bases for Devil's advocacy. Indeed, I think it's the idea of a structural Devil's advocate, rather than a house liberal (or conservative), that is central to thinking about why we might want to have more use of counter-clerks. But given the political nature of the Court and its members on some central set of issues, and the political elements of clerk hiring and the use of feeder judges, it's understandable that ideology is a relevant factor to think about and will often be relevant in the context of the Court. Perhaps our discussion should be about whether justices should, as a norm, hire for political diversity. But I think the counter-clerk question can be separate from that; and many people who think justices have no obligation to hire for political diversity might still think that a counter-clerk is a good idea.

4) What this says about the justices. I got a sense that there was some pushback on the counter-clerk question specifically because commenters thought Justice Scalia's hiring of counter-clerks was taken as a sign of his special or superior virtue, and as suggesting that his colleagues were in some way less virtuous for not doing so. That reaction is heightened if the view is that, despite the presence of a counter-clerk, Scalia voted politically and was jurisprudentially inconsistent. I don't care about the justices as such, for what it's worth, and it is clear to me that the legal profession, academy included and not just former Supreme Court clerks, buys way too much into a "great man/woman" vision of law and history. To an extent, I don't take Scalia's counter-clerk hiring as indicating that he was a terribly virtuous judge or as reflecting poorly on the other justices. To me, that's not the point, any more than one decides the virtues of term limits for justices by pointing to individual stories. I think the counter-clerk idea or something like it is structurally interesting and might be structurally beneficial, and I don't care what it says about the justices as such.

But it's not clear to me that Scalia's practice wasn't a good and praiseworthy practice, or that there is no basis to think the other justices are subject to reasonable criticism for not following it. It does seem to me that many former clerks, and others, are likely to take the practices at the Court when they were working there as reasonable if not normative. I would think the Court's practices are at least as subject to study and criticism as congressional or executive branch practices--probably more. And many if not most former clerks, and others, are resistant to structural criticisms that reflect badly on some or all justices, a tendency about which I've made my views clear on other occasions.

Let me make a last point. The sense in what discussions I have seen is that having a counter-clerk is rendered necessary or useful because the justices hire politically and jurisprudentially congenial people and so need to ensure a certain kind of feedback. A contrary view is that the justices (or whichever justice one clerked for) are open-minded and reasonable and engage in a productive back-and-forth with their clerks. And separately from the counter-clerk question, most people conclude that the justices are heavily influenced by their political priors. So perhaps another structural feature to think about is to get rid of the "elbow clerk" model altogether, or to junk a good deal of it. We could instead have an annual hire (perhaps by someone other than any of the justices) of 36 staff law clerks who can rotate through the justices' offices. It raises administrative questions, of course, but its benefits might still outweigh its costs. Or, for the sake of consistency and ease, one could give each justice one or two elbow clerks and require them to work with the staff law clerks for everything else. 



Posted by Paul Horwitz on April 15, 2016 at 03:33 PM in Paul Horwitz | Permalink | Comments (1)

Monday, April 11, 2016

A Jot on Gedicks, Helfand, and the Value and Limits of "Free Exercise" Doctrinalism

Howard is much better about putting up links to "jots" from his corner of Jotwell. Here's a jot from the constitutional law section, by me. In keeping with my urge to mess with the basic format, it's on two articles: Frederick Mark Gedicks's forthcoming article 'Substantial' Burdens: How Courts May (and Why They Must) Judge Burdens on Religion Under RFRA, and Michael Helfand's Identifying Substantial Burdens. Both are excellent pieces and both contain what may, depending on your definition of the word, be substantial discussions of what was thought likely, before oral argument, to be (and may still turn out to be) the principal issue in Zubik v. Burwell. The jot treats both articles as evidence, and exemplars, of a recent and valuable increase in doctrinal scholarship around the Free Exercise Clause and RFRA interpretation, as opposed to Free Exercise theory. I argue that the articles also demonstrate the limits of doctrinalism in this area (and perhaps more broadly). Here's a snippet:

Inevitably, however, both articles also show the limits of doctrinalism—perhaps in general, and certainly in this field. Not all doctrinal scholarship, to be sure, will be subject to the same severe limitations. In particular, one can imagine, and there has been a recent increase in, scholarship about doctrinalism. Scholarship recommending reforms in current doctrine, though, inevitably requires some sense of the metric against which those reforms will be measured and the values they are meant to serve. In a stable field or one with a highly specific statute, there may be substantial consensus about the relevant norms and values. But law and religion is not a stable field. The constitutional text is old and general; RFRA itself contains broad terms like “substantial burden,” and incorporates the highly contested caselaw of the Free Exercise Clause. And disputes in the field today suggest division over basic values and over the allocation of power between church and state, questions that may have been answered by prior cases but cannot settle them. Doctrinalism can channel such questions but it can hardly escape them. Questions of theory, and of policy, which also involves theory, are unavoidable here. . . .

None of this, of course, is meant as a fatal criticism. Law must be implemented as well as theorized. Too abstract a focus on theory will not provide us with adequate tools to implement that theory; and too frequent a recourse to first principles will deprive the law of stability and predictability, and steer judges’ and scholars’ time and talents away from the kinds of technical questions at which they have a comparative advantage. It makes sense that law—scholars’ law and judges’ law—will sometimes engage with higher-order questions, but that its primary development will often be smaller and more doctrinal. Questions of implementation are important, and a body of good legal scholarship can add considerably to the improvement of doctrine. Both Gedicks and Helfand contribute mightily to this task in the area of substantial burden doctrine. Their articles are both models of good work in this field. In deciding Zubik, I would not be surprised if different factions on the Court appealed to one or both articles. In the end, though, you cannot build a better mousetrap unless you have a sense of what the goal of trapping mice is, and what balances must be struck in doing so. Zubik itself, and both articles, turn on larger questions of theory, policy, and power that are unanswerable by appeals to doctrine itself. Both articles are well worth reading, and neither can tell us how to choose between them.

As I say in the jot, both articles are well worth reading. (So is another article written on essentially the same topic and at about the same time, Chad Flanders's Insubstantial Burdens. As they say in Shakespeare in Love, good title!)    

Posted by Paul Horwitz on April 11, 2016 at 11:12 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, April 06, 2016

Yes (With Caveats), Publishing a Book Review is Still a Worthwhile Endeavor for Untenured Law Professors

Following up on Chris's follow-up post, and with due appreciation for some of the points made in the comments there, my answer is yes, it is still worthwhile for untenured tenure-track law professors (an unwieldy phrase, but I don't like the increasingly common "pretenured": it may be accurate, given tenure rates, but there's a whiff behind it of unnecessary language massage and an unwillingness to hurt anybody's feelings by suggesting that anyone might not deserve and get tenure) to publish book reviews. Sure, there are cautions to be registered and prudential concerns to consider. But, as a general matter, it is still worthwhile.

The primary reason I think it's worthwhile for untenured law professors to publish book reviews--and, given time limits, the only one I want to focus on--is that I think it's worthwhile for tenured law professors to publish book reviews. Good books in one's field are, well, good, and in my view better and more rewarding than good but long articles. Engaging seriously with a good book can be an intellectually rewarding experience, and part of the way we engage is to write. It is also rewarding, especially in a field in which the currently dominant conventional law review article form is so imperfect, to experiment with different genres and forms of writing. All of these things are as true for untenured law profs as they are for law profs. It makes sense, up to a point, for untenured professors to be given sound professional advice that includes practical and pragmatic advice. But it also makes sense not to put the cart before the horse, and to be wary of the prospect that prudential advice of this sort, offered initially in a regretful, don't-like-it-but-that's-how-it-is way, will become reified and perpetuated, and that people will slowly build normative justifications around it. There ought to be room for serious book reviews in any genre of scholarship in which books are relevant. That should be true for tenured professors. And, in principle, just about any scholarly activity that might be valuable or rewarding for tenured professors, and certainly this one, should be valuable or rewarding for untenured professors.

I agree that given limited time and attention, there are reasons for untenured professors--or some of them; others write and publish a ton--to focus on what needs to get done, not just what they want to do. I don't find that terribly compelling as a general piece of advice, and it's becoming ever less compelling. The tenure clock is relatively long and has, I think, gotten longer rather than shorter. More people are coming out of doctoral studies or fellowships and, depending on what they've negotiated, already have at least one piece towards tenure. Even those whose prior publications don't count toward tenure at least have gotten some practice writing in their field and won't have the same start-up needs that someone coming in cold would. And, frankly, the number of significant pieces demanded for tenure is not huge, and doing a book review shouldn't be a make-or-break factor.

I also agree that untenured professors might want to build up some experience, skill, wisdom, and so on before writing a book review. But here too I think the conditions of the industry have changed. Whatever sense this makes in general, we can at least say that many entry-level law professors have put in some time on their subject, and published in the area, even before entering the tenure track. There's thus less reason to think it's presumptuous of them to assay a book review. Of course they should write the review as modestly as is appropriate given their relevant skills and limits. But that's true of articles as well, despite the not-infrequent immodesty of articles by entry-level profs (immodesty that is indeed noted, if forgiven, by more elderly readers in the field). Finally, one can understand that an untenured professor might want to select projects for impact and to build a voice and reputation. I think good book reviews can do that too, but I agree that articles (and, um, books) are the best way to achieve that goal. On the other hand, building a reputation should be secondary to the scholar's primary interest, which is to do scholarship. An untenured writer who thinks a book review is the right project to pursue, that it is the lesson he or she must learn or the contribution he or she must make, should worry about that first, and let reputational concerns take care of themselves. I think it is at least possible that there are people who internalize lessons about how to build a famous reputation very well, and do everything right, but little that's truly worthwhile. Better, I think, professionally speaking, to ask what your scholarly mission demands of you; if the muse tells you that the answer is "write a book review," write it. 

Perhaps all this is obvious and just goes without saying. I think it is and does. I also think the prudential advice on which people usually focus when asking these questions is mostly pretty obvious too, for that matter. I wouldn't have bothered writing about this. But, whatever the intention of the post or individual comments, I worry about the framing being such that untenured professors convince themselves that "scholar" is not a category with its own imperatives, but rather that there are two distinct categories of scholar: "untenured scholar" and "tenured scholar." I think it's important to reject that view, and that conditions are easy enough for most untenured law professors (if they get the job, which is really the hard part) that there's room enough to focus on the normative "oughts" of scholarship and not just the practical "ises." Indeed, I worry that in the legal academy many entering (and senior) academics hear, know, talk, and think more about the "ises" of scholarship than they do the "oughts."       


Posted by Paul Horwitz on April 6, 2016 at 02:23 PM in Paul Horwitz | Permalink | Comments (5)

Friday, April 01, 2016

New SSRN Paper: Five-Second Rules vs. Five-Second Standards

New today on SSRN is my draft article, Five-Second Rules vs. Five-Second Standards. It follows indirectly on my work on biases and heuristics in and epistemological questions concerning the First Amendment, as well as my interest in non-legal authority, although the proximate inspiration for the paper was more personal. Of special note is that it is the first paper to address this question in the legal literature. Here's the abstract:

The study of non-legal social norms has opened up new vistas for legal academic engagement with a variety of phenomena that, although not expressed through positive law, nevertheless have powerful implications for the facilitation and regulation of social conduct. Many of the epistemological, behavioral, and normative questions raised by positive law are placed in close relief when examined in the context of other forms of “law.” An enduring question in law is the “rules vs. standards” debate, and an enduring element of the “rules vs. standards” debate is the question whether the two stand in stark opposition to one another or exist on a continuum of ruleness and standardness. I examine this question, and raise others, through an interrogation of a classic, well-accepted, rule-like social norm: the “five-second rule,” which posits that it is acceptable to eat food that has dropped on the ground, provided that it has not remained there longer than five seconds. This is the first examination of the five-second rule in the legal academic literature, although it has been discussed in other fields.

The heart of the Article is an empirical study—the first such study in the legal literature. At a law school faculty lunch, a close count was kept of subjects’ responses upon dropping food on the ground. A variety of scenarios were involved, including inadvertent food-dropping by the experimental subjects themselves and a series of planned incidents in which the tester arranged for a sub-optimal number of cookies to be offered for dessert, and then conspicuously dropped a particularly attractive chocolate chip cookie on the ground and signaled that anyone wishing to pick it up was welcome to it. Preliminary results revealed three things: 1) most subjects observed the five-second rule, but not closely, with subjects indicating a willingness to pick up and eat food as long as seven or eight seconds after it had dropped on the ground; 2) despite prevailing norms of cooperation and civility, subjects were willing to fight, to the point of wanton brutality, over the last cookie; and 3) the primary variable affecting willingness to pick up food past the five-second point was the subject’s number of years in teaching post-tenure. Indeed, in situations where food remained on the ground past five seconds, a statistically significant cohort of senior professors waited until the room had cleared following the event, and then returned when they thought no one was looking to pick up the food and take it back to their offices. This experiment, relying as it does on a limited and non-representative sample of experimental subjects, in a situation far removed from standard real-world environments, and despite multiple failures to replicate the result, offers highly significant results that are easily generalized to suggest—for the first time in the legal literature—dramatic descriptive and normative implications.

Following a lengthy recitation of the experiment and its results, this Article spins out a number of novel conclusions appearing in this Article for the first time in the legal literature. First, and somewhat counter-intuitively, it turns out that even the five-second “rule” is, in fact, a standard. This suggests that even carefully reticulated rule specifications do not and cannot eliminate room for careful situational judgment and discretion. That conclusion has important implications for a variety of laws and social norms, including speed limits, Chevron deference, and the categoricalism vs. balancing debate in constitutional law. Second, interrogating the five-second rule has important implications for the question whether compliance with legal rules and social norms rests on an adequate epistemological or policy basis. The five-second rule remains a powerful constraint on conduct despite the fact that the rule has little basis in scientific fact and relies heavily on behavioral heuristics untethered from sound policy. Moreover, and despite its disconnection from sound or rational behavior, the rule itself reifies wider disparities and inequalities in access to relevant information. Studies in other disciplines show that while only 56 percent of men surveyed were even aware of the five-second rule, fully 70 percent of women knew of it. These gendered disparities demand additional study. Finally, and in keeping with important recent work on “sticky norms,” “sticky slopes,” “sticky defaults,” “sticky knowledge,” “sticky expectations,” “sticky metaphors,” and “sticky compliance,” the Article is the first in the legal literature to argue that the five-second rule is itself an example of a “sticky rule.” Literally.


Posted by Paul Horwitz on April 1, 2016 at 08:13 AM in Paul Horwitz | Permalink | Comments (0)

Friday, March 04, 2016

Kende on Berger on The Rhetoric of Constitutional Absolutism

At Jotwell, Mark Kende has a "jot" about Eric Berger's recent article, The Rhetoric of Constitutional Absolutism. I very much enjoyed Berger's comprehensive article, which describes a tendency toward rhetorical confidence and certainty in Supreme Court opinions, even (or especially) in divided opinions, in which the opinion "conten[ds] that a particular constitutional statement is either absolutely true or false" and confidently "insist[s] that a case has only one possible correct constitutional answer" and "often depict[s] a case as easier than it is." Berger offers several pretty convincing accounts--"strategic, institutional, and psychological"--of why this rhetoric happens, although he might have said more about the role of law clerks and the "chambers style" of an institution that relies heavily on them for opinion-writing. It is not surprising that he concludes that it is a problematic style, but he commendably totes up the benefits as well as the costs of this rhetoric. Kende offers a clear, quick, and sensitive description of Berger's article and concludes by saying that "Berger has given us a superb article that suggests that there would be much value in the Supreme Court writing less absolutist and more nuanced candid opinions." 

As Kende notes, there is an interesting existing literature relevant to Berger's article (which Berger certainly cites). I recommend especially Emily Calhoun's book Losing Twice: Harms of Indifference on the Supreme Court, and, before that, Robert Burt's The Constitution in Conflict. Calhoun's book also has a wonderful set of bibliographic essays on the topic.  


Posted by Paul Horwitz on March 4, 2016 at 08:15 AM in Paul Horwitz | Permalink | Comments (1)

Wednesday, February 17, 2016

Do Law Clerks Need Empathy?

Here is a very well-done remembrance of Antonin Scalia by Joan Larsen, one of his former clerks and now a Michigan Supreme Court justice. I've written frequently, and most recently here, that "[t]oo many former law clerks in the academy retain an adolescent love of their judges," that the kind of filial piety the clerkship relationship often induces becomes a lifelong and unhealthy habit in them. I still think that's true, but I'm not a total monster, and this is a lovely account. It raises a specific question for me I thought I'd air. Larsen writes:

Justice Scalia believed in one simple principle: That law came to the court as an is not an ought. Statutes, cases and the Constitution were to be read for what they said, not for what the judges wished they would say. Each of his opinions needed to conform to that principle and to be written clearly, forcefully and accurately. If you could help him with that, you were useful to him. If not, then not . . . . As impatient as he may have been with our missteps, he truly valued our input. He had no use for sycophants. He wanted to get things right; and, therefore, he valued clerks who would argue with him about why his initial thinking might be wrong. If you could prove your case, you could win him over. But it could not be done with appeals to emotion, or outcome, or legacy, or anything else. The only way to convince him was to show him that the law was on the other side (usually by peeking nervously over his shoulder as he read, and questioned, and then reread the cases). My proudest moment as his clerk was convincing him, with two sleepless nights of research into dusty old precedents, that a criminal defendant should win a case that none of the justices originally thought he should win. I’m pretty sure that was the moment he was most proud of me, too.

Conspicuously absent here as a desideratum for law clerks is empathy. There's plenty of talk and debate, and no doubt there will be more soon enough, about the value of empathy in judges. The law review database in Westlaw shows over 750 uses of "empathy" within the same sentence as "judge" or "judicial" since the turn of the century. But there is virtually no discussion of whether law clerks ought to have the quality of empathy. A search in the same period for the word "clerk" in the same sentence as "empathy" yields only 16 hits, most of which are irrelevant and the rest of which involve clerks remarking on their judge's empathy. There are, this crude search suggests, no discussions in this literature, at least not in those terms, about the relationship between empathy and law clerks

That's pretty striking and suggests a nice, unanswered question for someone to follow up on. For one thing, the literature on judges and empathy is already at the saturation point. For another, most people write on the assumption that clerks are something more than mere amanuenses, if something much less than full partners in the enterprise, and that they at least sometimes bring something to the job other than mere mimicry of their judges' own views; and there's probably plenty of overlap between people holding those views and people who believe that empathy is an important quality in judging. Without overstating it, I think the question whether law clerks also need empathy is an interesting and overlooked one. 

That doesn't mean the answer to the question is of an intricacy proportioned to its interest, but the answer might have interesting implications. As a first cut, there are two obvious answers here, with two different sets of implications. The first, obviously, is "no." Judges decide cases. Empathy may help them decide them better. But law clerks are not the decision-makers. Their job starts after the vote and consists of something between being an advanced amanuensis, writing as the judge would write, and being a cite-checking machine. If that's right, then the implication is that we should avoid the temptation to (over-) glorify the importance of law clerks, and also perhaps that we should take a more circumscribed view of what law clerks' duties are or should be. It also suggests something about judges' uses of law clerks. And perhaps it says something about their tenure too: If empathy is an important quality for judges, then when a judge has reached the point at which he or she leans heavily on clerks even at the voting stage and gives over the writing of opinions substantially to the clerks, then that judge is no longer capable of providing the added value that his or her empathy and experience brings to the process, and should leave the bench. 

One problem with this answer is that it is hardly fully consistent with what many law clerks actually do. They do a lot of the reasoning that publicly explains a judge's vote. Especially in some cases, like "screeners," they may do practically all of it. And Supreme Court clerks also have a substantial pre-vote role through their participation in the cert pool, as well as in briefing cases before oral argument. Empathy is important, on some views, not only in deciding how to vote, but in explaining the outcome to the winners and losers--especially the losers--and to the public. In some cases, perhaps a law clerk's empathetic understanding of a case can even influence or change the judge's vote.

If that's the reality, and/or if that's your normative position, then perhaps the answer should be "yes." Empathy is an important quality in law clerks, and should be one of the selection criteria for judges in selecting them. Perhaps it should be especially important in an era in which federal appellate judges and Justices are cast from a narrow mold--elite school-to-elite practice-to-elite lower federal court judging--and thus may need law clerks to provide some of the empathy that might not flourish in such a circumscribed existence. The implications of this position are arguably problematic too, however, quite apart from the question whether it delegates too much of the judicial task (if empathy is a key part of the judicial task) to law clerks. Law clerks are generally chosen from within an even narrower and more elite-favoring pool than judges. Just as important, empathy is not a question of background alone: it's a quality that develops with exercise and experience, something that law clerks necessarily lack. Maybe those who believe empathy is an important quality for judges ought to advocate for hiring law clerks who are not only diverse in background but older and more varied in their lifetime experience. Or maybe, interestingly, those who believe empathy is important for judging should be arguing that law clerks ought to be much more limited in their duties--that they really should be glorified secretaries and cite-checkers, and that their role in both pre-vote work, like the cert pool, and post-vote opinion writing, must be more limited than it often is today.


Posted by Paul Horwitz on February 17, 2016 at 09:23 AM in Paul Horwitz | Permalink | Comments (1)

Saturday, February 13, 2016

Good News for Long-Winded, Caveat-Spewing Canadian Legal Bloggers

A fun and interesting article about how to change people's minds, based on a study by Cornell researchers titled "Winning Arguments: Interaction Dynamics and Persuasion Strategies in Good-faith Online Discussions." A couple of findings: The researchers "find that longer replies tend to be more convincing, as do arguments that use calmer language," and "they find that hedging – using language like 'it could be the case' – is actually associated with more persuasive arguments. While hedging can signal a weaker point of view, the researchers say that it can also make an argument easier to accept by softening its tone."

Posted by Paul Horwitz on February 13, 2016 at 08:43 AM in Paul Horwitz | Permalink | Comments (0)

Friday, February 12, 2016

A Comparative Critique of "The Ultimate Unifying Approach to Complying With All Laws and Regulations"

In the new Green Bag, Daniel Solove and Woodrow Hartzog have an article titled "The Ultimate Unifying Approach to Complying With All Laws and Regulations." It's described here. This is the SSRN abstract: "There are countless laws and regulations that must be complied with, and the task of figuring out what to do to satisfy all of them seems nearly impossible. In this article, Professors Daniel Solove and Woodrow Hartzog develop a unified approach to doing so. This approach (patent pending) was developed over the course of several decades of extensive analysis of every relevant law and regulation."

As with Orin Kerr's A Theory of Law, the fun lies largely in its brevity and in the slight surprise involved in clicking through to the article. (This also means that people who want to get the joke have to download it from SSRN, at least for now and until now. It already has over 1,500 downloads.) I honor that here by offering the standard "SPOILER" alert here and continuing after the jump, where I reveal the approach, take it seriously, and critique it at slightly greater length than the article itself.

Not including the abstract, the article reads, in full:

Be reasonable.

So, how well does this approach work? Of course, like most people, I like it and try to live it, albeit more for moral and ethical reasons than out of a desire to avoid legal consequences. I find it intuitively attractive as a general Golden Rule for living under the law. Insofar as it cuts through the fog, and through reams of paper, to find a common-sense conclusion, I like it for that reason as well. Still, I'm pretty dubious.

One reason is empirical. As Solove's colleague Cynthia Lee notes in her book Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom, different individuals and communities may have different views about what constitutes reasonableness, and/or about what the reasonable member of a community would consider reasonableness. There is a large literature out there calling for more empirical study of the application of the reasonable person standard, although my quick tour through it suggests that there have been more calls than responses.

Another is, roughly speaking, political and sociological, although it's related to the empirical point. The United States is a highly pluralistic society across any number of dimensions, including political views relevant to questions about how a reasonable person should comply with the law--reasonably; with an eye toward a default assumption of minimal state power and individual liberty; with avoidance or avoision in mind; loyally; purposively; and so on. There are also varied views, exacerbated by the increasingly polarized and heated division over politics and culture, about the substance of individual laws, and that's likely to create inconsistency in and between individuals over whether a particular law or legal rule should "reasonably" be interpreted broadly and purposively or narrowly and literally. 

One might have less reason to worry about all this if the official interpretive community were sufficiently homogeneous in its views of the "reasonable person" to allow such a standard to be interpreted consistently. Decisions by judges and other legally trained officials would then be consistent, and decision by juries would likely be subject to some judge-imposed constraints. Individual actors would "be reasonable" according to their predictions about what judges, lawyers, and government officials, or maybe the professional/managerial class more generally, consider reasonable. There are obvious problems with this, however. One is the simple question whether the class of people subject to the laws is able to make these sorts of predictions. Another, lying somewhere between descriptive and normative concerns, is whether such predictions will be more difficult if there is a widening gulf between the professional/managerial class and others. On the normative side of the line, asking such a question raises obvious concerns about political legitimacy.

All that aside, is it accurate to describe the relevant interpretive community in the United States as sufficiently homogeneous?  Views differ, but I don't think so. Notwithstanding complaints that the legal profession is not sufficiently diverse, it is already (or also) the case that there is a great deal of variation and conflict in the political, social, and cultural views of lawyers, a conflict that plays itself out, among other things, in debates, divisions, and polarization within the legal community that parallel the debate and polarization within the broader political and civic community. Because law in the United States is so often political, and so many lawyers and legal thinkers are content or eager to treat it as such, or believe that they must do so rather than "unilaterally disarm," that condition is not going away any time soon. Any society, or legal interpretive community within that society, in which there is strong disagreement over something as fundamental, simple, and vital as how to interpret a statute is not well-suited to live by the injunction to "be reasonable."   

This brings me to an interesting (to me, admittedly) comparative point. Other legal interpretive communities do operate by various "be reasonable" rules. In Canada, for instance, courts often quote Elmer Driedger's book (now carried on by Ruth Sullivan) on the Construction of Statutes and its description of the "Golden Rule" of statutory interpretation: "Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament." This is essentially an injunction to "be reasonable" in the interpretation of a statute, and Canadian courts have regularly said as much. Similarly, Canadian constitutional analysis, like judicial constitutional review in many countries, relies heavily on a proportionality test, and there too reasonableness is a linchpin of the analysis.  It is sometimes lamented that American constitutional doctrine is not conducted more explicitly in terms of reasonableness, balancing, and proportionality, and Justice Breyer, among others, has argued that it should be.

My sense as a former member of the Canadian legal interpretive community, however, is that however well reasonableness functions as a guide, much of that success has to do not with the test, but with the homogeneity of the interpretive community. It's a big country, of course; moreover, one often associates it with the split between Quebec and the rest of Canada, or between English-speaking and French-speaking Canadians. My take, however, is that Canadian law, government, and administration have generally been overseen by a smaller mandarin class within which there is a fair amount of cultural similarity and political consensus. There are about 23 law schools in Canada, of which say 17 are of reasonable long standing and establishment and among which the "tiering" is nowhere near as strong as among American law schools. A larger number of faculty within those schools come from outside the country than was the case when I was a student in the early 90s; still, there is a substantial amount of cultural and especially political consensus, and unity and similarity of training, among them. And the same kind of relative educational, cultural, and political homogeneity also characterizes the political/administrative managerial class more broadly. It is still largely captured by people with similar educations and views, coming from or having lived in a relatively small number of major Canadian cities: Toronto, Vancouver, Montreal, Ottawa/Hull, maybe a couple of others. If you think "Washington" is an epithet for people captured by the Beltway culture, and are struck by the tiny number of law schools responsible for producing our Supreme Court justices, you're right. But even so, the legal and political culture here is relatively diverse and divided, even within DC, compared to the Canadian mandarinate, and notwithstanding other ways in which that group has become diverse along other dimensions such as race, ethnicity, and religion. And the American professional/managerial class lives, works, and disagrees in many other places than Washington.

Indeed, from my distant perspective, one of the most interesting and salutary things about the rise of the Conservative Party in Canada was that it revealed a gulf between the mandarin culture and at least some of the regular citizens in at least some of the regions of Canada--especially the West, which, Vancouver and Victoria aside, has different views and much less Ottawa-based political representation in the political class than the Toronto-Ottawa-Montreal nexus. That's not to say I shared that party's views. As a Torontonian and a member of the professional/managerial class, I lamented the death of the much more "reasonable" Progressive Conservative Party; and, if I didn't much care for the Liberal Party given its ideological vagueness and the inevitable corruption that afflicts a party long used to power, I was generally comfortable being governed by it, for similar reasons. But it was interesting and, I think, valuable to see the West take a greater share of the political power from which it had generally been frozen out, and to see the ways in which the views of the country were different from those of the average entrenched deputy minister. That idea ought to resonate some. We are, after all, seeing a political season in which revolt against the United States's own professional/managerial establishment and its shared values and assumptions is a major element in the successes of challengers in both parties.   

In short (hah!), if a "be reasonable" rule works in Canada, and perhaps in other countries that also rely on things like proportionality, it may be not because there's much content to or value in the rule itself, but because the class interpreting it already shared a substantial consensus and worldview. I suspect that such an interpretive community would have reached similar results and consensus if it had instead adopted a fairly strict rule of textualism as the approach to interpreting statutes, and a more originalist and/or categorical approach to constitutional interpretation--that, indeed, textualism, originalism, and categoricalism in legal interpretation could all be undertaken more successfully in that legal culture than they could be or are in the United States. It may also have something to do with the degree to which law is or isn't consistently made a vehicle of "politics" there, compared to the United States.   

I will make explicit what I've already implied: in such a country, if the professional/managerial class shares a strong political and cultural consensus but the consensus is not shared across the country and some regions, classes, and views are absent or shut out from that class, then there are good reasons to think that even a 'successful' "be reasonable" legal interpretive regime there has serious political legitimacy problems. But neither those problems nor the day-to-day stability and consistency of the interpretive regime have much to do with the approach to legal interpretation that this class adopts. And American champions of things like proportionality, balancing, and "reasonableness" as interpretive tools--for rules, statutes, constitutional questions, and other issues--who point abroad for examples of the value and workability of such a system should dig deeper into the homogeneity of the legal classes charged with administering those systems, and into how representative and politically legitimate they are. In any event, and despite the many ways in which we already live under something of the rule of a professional/managerial class here, as people often complain, the United States is too culturally and politically diverse for "be reasonable" to be a sufficient guide in general, however well it functions for individuals. However much people like me are attracted to "be reasonable" as a guide, and however much it looks like plain common sense, we should also recognize the degree to which the proposed rule is heavily freighted with politics--and the politics of a particular class, at that. 

I grant that this is a slightly lengthier critique than the article itself. If I were doing it Green Bag-style, I suppose my response to the Solove/Hartzog article would be, "It's complicated--and political."

Posted by Paul Horwitz on February 12, 2016 at 01:35 PM in Paul Horwitz | Permalink | Comments (4)

Wednesday, January 20, 2016

Divergent Paths, the "Posnerian Clone Wars," and Two Takes on Legal Education

In the New Rambler Review, which incidentally is a great resource, today's example notwithstanding, I have a review of Richard Posner's new book, Divergent Paths: The Academy and the Judiciary. Here's my summary of the book's thesis:

The federal judiciary suffers from many flaws, not least “a certain staleness in the current judicial culture.” Some flaws are structural; others involve poor management of the judiciary as a whole and of individual courts and judges; a third set concerns “deficiencies in how federal judges decide cases and justify their decisions in judicial opinions,” including a mechanical formalism and an unwillingness to confront openly the task of solving complex problems. Some of those flaws are fixable. The legal academy could do a lot to help. But it hasn’t, and won’t, unless it fixes some flaws of its own. Its central shortcomings are its increasingly academic nature and its lack of interest in understanding or communicating with judges. “There really is a gulf between these two branches of the legal profession, and the gulf has been growing.” A “focus on practical instruction” in legal education would “create a greater faculty interest in judges,” especially those beyond the Supreme Court, and narrow the gap.

And here is my basic assessment:

In Divergent Paths, [readers] will find much that repays their time, but I’m not sure they will find a rewarding book as such. They will find “too much”—a “gallimaufry,” as he says (wonderfully) of a quote by Laurence Tribe—and also not enough: several books not one, sometimes conflicting in diagnosis and prescription, and too often wandering into fun but unfocused irrelevancies. . . .

Duncan Kennedy famously wrote that legal education is a machine for the reproduction of hierarchy. Divergent Paths wants to turn law schools into a device for the large-scale industrial cloning of Richard Posner himself. . . . I agree with most of Posner’s diagnoses and many of his prescriptions; I admire his work as a judge and a scholar; I wish more judges, lawyers, and law professors were like Posner. But all of them? By the end of the book, one can’t help recall a scene in the movie Being John Malkovich, depicting a world with nothing but Malkoviches. Even a world filled with first-rate Posners would be an unsteady place; one filled with inevitably less capable people, taught nothing but how to emulate him, would be calamitous. Whatever legal academics’ job is, it can’t be that.

 After the jump, I offer more substantial excerpts. One suggestion I make toward the end of the review is that instead of making recommendations for the future of law schools based, by his own admission, only on his knowledge of the elite law schools, Posner should have considered the possibility of "more tiering of law schools, not just as a matter of rankings but in terms of the role and strengths of different kinds of law schools. It’s also surprising that the book doesn’t consider the possibility of separating legal academic study from legal professional training, with fewer, less highly compensated, and more academic legal scholars teaching in departments of law, and more practical, doctrine- and instruction-oriented academic lawyers working in law schools." [For what it's worth, I have taught at five law schools, and in a week will begin a visit at a sixth, representing all "tiers."] I also write:

In focusing on the shortcomings of individual elite law professors while insisting that the whole legal academy serve as glorified valets to the federal courts, [Posner] ignores another possibility. Two features, above all else, distinguish elite law schools from lower-ranked schools: money and resources. What separates Harvard, Yale, or Stanford from most law schools is not the presence of airy theorizing or Supreme Court clerks, both of which can be found elsewhere. It’s that these schools have accreted a large number of generously funded centers and institutions, staffed with affiliates, fellows, and administrators, a number of whom have significant expertise in useful disciplines. Individual tenure-track faculty members at the elite law school faculties are now just the visible tip of a much larger corporate enterprise.

These varied centers now mostly serve as a research and advocacy arm of legal liberalism. They do some impressive work, no doubt. But it’s not unique work; and, varied and piecemeal as they are in their activities, they don’t achieve half as much as they might if they were properly coordinated. With their resources and ability to hire dedicated and qualified staff, and with more forethought and direction, the elite law schools could do a lot to study the kinds of questions Posner thinks are central to the improvement of the federal judiciary (or other branches of the profession). They would certainly be better qualified at this job than the general run of current law faculty. They would also be more qualified than the practically oriented faculty that he champions in his conclusion. Rather than retrofit the law schools into a rag-tag version of the Federal Judicial Center, why not build from existing and potential resources to fit the right tool to the job? In his compulsion to remake the judiciary and law schools in his own image, Posner’s usual Weberian instincts abandon him.

I thought, in light of my recommendations, that it would be nice to close this post with a "But see": Rebecca Roiphe's new article, Tilting at Stratification: Against a Divide in Legal Education. The abstract states, in part: "Critics suggest we divide law schools into an elite tier whose graduates serve global business clients and a lower tier, which would prepare lawyers for simple disputes. . . . The article draws on [ ] history to argue that there are no easy solutions. In order to fix the problems of legal education, we need to address the question of professionalism in general and distill what it is that is valuable about a separate legal profession. The profession should train all our lawyers in those skills. The intellectual and theoretical approach to the law is necessary to both rich and poor clients, therefore, all lawyers--not just those who graduate from elite schools--ought to be trained in the complex nature of the law and its relation to society, culture, and politics."   


More excerpts:

As with most of Posner’s books, reducing Divergent Paths to a dry précis gives no sense of the genuine intellectual treasures to be found in it. Its pleasures lie in its detours and divagations as much as in the main trail. “Having flailed at the American Law Institute for a few pages,” he writes at one point, “let me get back on track.” Throughout the book he flails away: at individual judges, articles, and ideas, at judicial piety and academic abstruseness, and at many of his other usual foils. He usually hits his target.

Sometimes—more often than usual for Posner—this becomes repetitive; for example, a 75-word passage appears, word for word, at pages 225-26 and 271. Frequently, he descends from acidity to crankiness. . . . [T]he book needed more ruthless editing and greater self-restraint. That extends to his epilogue, added at the last minute to throw in some harsh criticisms of recent Supreme Court opinions. Posner says he “thought it likely that some of those late-decided cases would cast light on issues discussed in this book.” The discussion is more distracting than enlightening—one more punch to throw before last call. It should have been cut.

Many other passages, however, retain the trademark Posnerian capacity to cut to the quick and separate sense from nonsense. . . . 

The heart of the book is its pairing of flaws in the federal judiciary and ways the legal academy could address them. Plenty of law professors today are eager for reform recommendations. They should be. Even if the legal economy recovers fully, many reasons for reform will persist. Among other things, law schools make questionable choices in faculty hiring and curriculum, and there is a disjunction between what schools teach and how they teach it, and the practical needs of students, the legal profession, and others.

But even those eager to praise any suggested reform of legal education should take a careful look at Posner’s recommendations. The problem is not their cost. Requiring law professors (like me) to retool or move on is hardly a good reason to resist reform recommendations—if they’re good ones. But the consistency, coherence, and effectiveness of Posner’s proposals are questionable.

There is a strong tension between Posner’s complaints about law schools and his prescriptions for reform. . . . One might think, [given his diagnoses], that Posner’s prescription would be: “Fewer doctorates, more doctrine.” Hire talented young lawyers to teach, and encourage them to do the doctrinal work at which they excel and which judges can understand and use. They won’t need much encouragement, given their particular (and limited) skills and their identification with the profession.

But it isn’t, or not quite. Posner urges that “the judiciary as an institution (as distinguished from its legal-doctrinal output) should be receiving a good deal more attention from the academy than it is.” Judges themselves—their psychology, their priors and incentives, their management techniques—are the rats that must be made to run the legal academic maze. The tools for that sort of study are organizational and psychological: statistics, management, organizational and institutional scholarship, behavioral economics and psychology, and so on. . . . Thus the first item on Posner’s list of recommendations: “Redirect focus of academic scholarship from legal doctrines and particular decisions to systemic and institutional issues.” So the prescription is actually “More doctorates (but aiming their studies at the judiciary), and (even) less doctrine.”

What good will this do? Empirical study of the judicial process and the management of the federal courts would surely yield some benefits. But Posner argues throughout the book that judges can’t understand or won’t listen to this sort of thing. . . . They wouldn’t necessarily do anything about it even if they did listen. The usual problem of horses and water would apply.

The references to rats and horses are apt here. I will add a third animal metaphor. In his book How Judges Think, Posner urged legal and other scholars not to accept judges’ descriptions of how they decide cases uncritically, but to bring an external and interdisciplinary perspective to bear. He wrote pithily, “Biographies are more reliable than autobiographies, and cats are not consulted on the principles of feline psychology.” Going an absurd step further, Divergent Paths aims to turn the entire legal academy into a center for the study of feline psychology. Since he wants law professors not only to study their subjects but to help them, by such tasks as “guid[ing] judges to reliable websites and away from unreliable ones,” he would also turn us into feline therapists and feline concierges. While he’s at it, since he wants judges, unlike cats, to listen to the people studying them, he wants us all to talk to the animals as well, like Dr. Doolittle. There is no reason to think judges would take any more kindly to our observations than cats would, or that the skills necessary for external study of the judiciary would make us better judicial therapists and servants, and vice versa. . . . 

There are two more important flaws with the book, both tied together by a certain self-centeredness and the usual human tendency, widely shared by legal academics, to look for one’s keys under the nearest lamppost. The book’s plea for future study of the judiciary is undercut by the certitude, specificity, and oddness of his prescriptions. Posner already seems certain not only of the flaws in the judiciary and legal academy but of their remedies, and this affects his recommendations in bizarre ways. Duncan Kennedy famously wrote that legal education is a machine for the reproduction of hierarchy. Divergent Paths wants to turn law schools into a device for the large-scale industrial cloning of Richard Posner himself. . . . 

I agree with most of Posner’s diagnoses and many of his prescriptions; I admire his work as a judge and a scholar; I wish more judges, lawyers, and law professors were like Posner. But all of them? By the end of the book, one can’t help recall a scene in the movie Being John Malkovich, depicting a world with nothing but Malkoviches. Even a world filled with first-rate Posners would be an unsteady place; one filled with inevitably less capable people, taught nothing but how to emulate him, would be calamitous. Whatever legal academics’ job is, it can’t be that.

Finally, Posner’s exclusive focus on the federal appellate courts and the elite law schools is odd. It makes sense to write what you know, but this is a sweeping set of prescriptions for so narrow a scope of study. It leaves out other branches of the legal profession and of government, most of the law schools in the country, and all of the state courts. Narrowing in at the outset leaves him, and us, unable to evaluate whether other legal institutions are in more urgent need of help.

It also affects and distorts his prescriptions. Despite the perverse tendency of the competitive job market in law teaching to create a whole nation of law faculty who mimic their mentors at the elite schools, there has also been a recent increase in differentiation and specialization among law schools, as they are forced to pay more attention to local employment markets. There could, and probably should, be even more of this. Posner notes that faculty at non-elite schools are still likelier to produce doctrinal work, although the snobbery of federal judges (or their clerks) may lead them to neglect it.

Why not build on this? Instead of a prescription that all law schools become judicial study centers, based only on his knowledge of a few elite schools, why not allocate the work more efficiently? Perhaps he should encourage more tiering of law schools, not just as a matter of rankings but in terms of the role and strengths of different kinds of law schools. It’s also surprising that the book doesn’t consider the possibility of separating legal academic study from legal professional training, with fewer, less highly compensated, and more academic legal scholars teaching in departments of law, and more practical, doctrine- and instruction-oriented academic lawyers working in law schools.

In focusing on the shortcomings of individual elite law professors while insisting that the whole legal academy serve as glorified valets to the federal courts, he ignores another possibility. Two features, above all else, distinguish elite law schools from lower-ranked schools: money and resources. What separates Harvard, Yale, or Stanford from most law schools is not the presence of airy theorizing or Supreme Court clerks, both of which can be found elsewhere. It’s that these schools have accreted a large number of generously funded centers and institutions, staffed with affiliates, fellows, and administrators, a number of whom have significant expertise in useful disciplines. Individual tenure-track faculty members at the elite law school faculties are now just the visible tip of a much larger corporate enterprise.

These varied centers now mostly serve as a research and advocacy arm of legal liberalism. They do some impressive work, no doubt. But it’s not unique work; and, varied and piecemeal as they are in their activities, they don’t achieve half as much as they might if they were properly coordinated. With their resources and ability to hire dedicated and qualified staff, and with more forethought and direction, the elite law schools could do a lot to study the kinds of questions Posner thinks are central to the improvement of the federal judiciary (or other branches of the profession). They would certainly be better qualified at this job than the general run of current law faculty. They would also be more qualified than the practically oriented faculty that he champions in his conclusion. Rather than retrofit the law schools into a rag-tag version of the Federal Judicial Center, why not build from existing and potential resources to fit the right tool to the job? In his compulsion to remake the judiciary and law schools in his own image, Posner’s usual Weberian instincts abandon him.


Posted by Paul Horwitz on January 20, 2016 at 07:43 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, December 23, 2015

"Religious Institutionalism--Why Now?"

Nelson Tebbe and I have a chapter with this title in a forthcoming (and terrific) book, The Rise of Corporate Religious Liberty, edited by Micah Schwartzman, Chad Flanders, and Zoë Robinson. Here's the abstract:

The recent rise of religious institutionalism in Supreme Court doctrine presents a puzzle. After all, the Court has been emphasizing groups at exactly the same moment when social scientists have been showing that Americans are disaffiliating from religious organizations at a rapid rate. What explains this apparent tension? We argue that multiple factors contribute in complex ways to the rise of group rights of religious freedom. But we also tentatively suggest an overarching theme. Once it is appreciated that religious disaffiliation is happening chiefly among those on the left of the political spectrum, it becomes possible to hypothesize that lawyers’ focus on groups and institutions reflects a countervailing impulse among religious traditionalists. If that is correct, then the rise of group rights of religion is happening alongside, not despite, religious disaffiliation. The two developments are aspects of a general phenomenon of polarization on questions of religious freedom.

I should say in the interests of fairness that Nelson was more than generous in keeping me on as co-author. We started the paper together but I was substantially sidelined by illness last year and my contribution to it dropped precipitously. I hope there's a little bit of me left in there, but I would feel bad about not acknowledging publicly that Nelson did the lion's share of the work, with his usual excellence. I was nevertheless pleased and grateful  to come along for the ride with him.

Let me offer some thoughts about the paper beyond the abstract, although I think most of them are explicit and/or implicit in the chapter. First, I think the general approach is useful and perhaps too often absent from legal scholarship of this kind. Doctrines emerge, develop, find a receptive audience or wither, and evolve in various ways and for various reasons, some internal and some external: path-dependence within doctrine, changes in the cultural surround or in the legal culture, strategic first moves and reactions to other moves, interest-group politics and funding, and so on. In thinking about these questions, and about where and how doctrine might move, it is valuable, in my view, to think at least somewhat from an internal perspective, but not only from that perspective. That's especially true if one is going to make pronouncements about what doctrinal developments say about our legal or political culture. All of this is more or less obvious, although I think people rarely tease out all the nuances of these relationships, and are especially likely to label strategic moves by those they disagree with as strategic while describing similar moves by their friends as sincere and inevitable. A fuller picture doesn't always emerge in the scholarship, however, both because of reasonable concerns about parsimony--it's difficult to make a single "point" given all these cross-currents--and because, general complaints about this notwithstanding, many legal scholars are still doctrinalists at heart, and/or hold a largely "internal" view of the law. In any event, it's worth noting that such moves can be both strategic and sincere. Arguments in favor of affirmative action in higher education on the grounds of diversity rather than remediation, for instance, increased significantly after the Supreme Court in Bakke channeled legal claims in that direction. But diversity was in the air before that, and even if there was an initial strategic motivation for focusing more on this, individuals and groups in time came to internalize it as a treasured value. Religious groups may have been driven by various developments, such as the Court's decision in Employment Division v. Smith, to push institutionalist arguments, but the idea was hardly foreign to them and, once such claims are made, others will end up internalizing their importance.    

Second, I think a key point in the paper is worth underscoring. Religious institutionalism can rise in importance at the same time as, and in part because of, a trend toward religious "disaffiliation and individuation" described in recent Pew polls about religious belief in the United States. One sometimes sees hints or suggestions in public and scholarly literature that the rise of the "nones" in American religious demography undercuts religious institutional claims. That's not quite right, although such a view may find a warm welcome in a legal and political culture that tends to "Protestantize" American religion and the structures that surround it. Reporting to her feckless colleagues on the latest purges in the Soviet Union, Greta Garbo in the movie Ninotchka says, "There are going to be fewer but better Russians." As, and in part because, many religious individuals become less strongly tied to particular church bodies or disciplinary orders, other individuals and groups will become more strongly tied to religious institutions and more convinced of their importance and the value of their maintaining some autonomy, particularly in the face of a legal and political culture that in their view disparages or denies the importance of such associations or sees them as wholly subordinate to the enacted will of the majority. Indeed, one view is that under such circumstances, it may be both more important and less dangerous (because those groups are smaller, and because the idea of exit will be highly visible in the surrounding culture and, as Charles Taylor suggests, more "available" to religious individuals) to allow those groups a space of their own, from which they can generate or preserve norms and ideas that critique the prevailing culture. 

At the same time, it is possible that the smaller and stronger ties of these groups, and their reaction to the surrounding culture, may make their beliefs or norms stricter, and their legal claims stronger and likelier to interfere with the general legal regime, including its beneficial aspects. The creation of "fewer but better," or smaller but stricter, religious groups may also, both by making it easier to monitor members and by creating stronger and more isolated enclaves, make exit more difficult for individuals, including vulnerable ones. How to balance these conflicting points is the stuff of the law and its response to pluralism. I would like to suggest, however--and this is not in the paper--that it points to a potential, oft-neglected, benefit of accommodationism: a willingness to accommodate such groups may reduce these groups' polarization and alienation from the general culture and desire to build a strong enclave around itself, and make it less likely that the end point will be one of strong illiberalism and/or insistent isolation from the culture.

Third, it's worth noting that however much particular ideas or strategies may be associated with one side of the debate at particular times, they often have a more complicated genealogy than that, and may well cross political lines at different points. Advocacy on behalf of society's "little platoons" is right now associated strongly with religious conservatives, for example, but in the 1970s, a concern with the importance of these groups could be found across both the left and right. (See chapter 6 of Daniel Rodgers's terrific book Age of Fracture.)

Finally, a couple of reading recommendations, both of them published after the initial drafts of this chapter. For a critical take on religious polling, see Robert Wuthnow's Inventing American Religion: Polls, Surveys, and the Tenuous Quest for a Nation's Faith. And for a wonderful argument that, "both normatively and historically, liberal political thought rests on a deep tension between a rationalist suspicion of intermediate and local group power, and a pluralism favorable toward intermediate group life, and preserving the bulk of its suspicion for the centralizing state," see Jacob T. Levy's Rationalism, Pluralism, and Freedom

Again, thanks to Nelson for letting me hang out with him on the page, and I hope y'all enjoy the chapter. I highly recommend the book as a whole; it has many great contributors who have turned out some very interesting chapters. 


Posted by Paul Horwitz on December 23, 2015 at 09:33 AM in Paul Horwitz | Permalink | Comments (1)

Monday, December 21, 2015

A Review of Andrew Hartman's A War for the Soul of America: A History of the Culture Wars

Andrew Hartman, a historian at Illinois State University, had both fantastic and poor timing in publishing this year his book A War for the Soul of America: A History of the Culture Wars. Fantastic in that the book turned out to be incredibly timely, due to the recrudescence of the culture wars on and off campus; poor in that the book is labeled as history and he doubles down on that label, writing, "This book gives the culture wars a history—because they are history. The logic of the culture wars has been exhausted. The metaphor has run its course." However much they enjoyed the book, reviewers looked around them and disagreed; indeed, they had enjoyed the book because it was so timely. 

Here is my review of the book for Commonweal. Given my field and its close relationship to the subject of the book, I was pleased to read it, although I ended up underwhelmed--by the effect his sympathies have on the analysis, by its over-reliance on a particular definition of power and resistance as the primary subject of the culture wars, and by the recent appearance of a similar but, I think, better book, Age of Fracture, by Daniel T. Rodgers. (As a side note, I would add that this and other histories don't give enough attention to the Dionysian side of 60s culture, which was relevant well into the 70s and which has never figured as much in the legal history/theory literature as it ought to.)

In the end, I think Hartman's claim about the culture wars being "history" is actually subtler and more interesting than other reviewers thought, although his claim--that the previous culture wars ended up neglecting questions of class and capitalism that will have to feature more prominently in any subsequent conflicts--should have altered and enriched both his history and the predictions he offers in the book more than it does. I close on a cheery note:

It cannot be a surprise that either liberatory or reactionary movements of this sort sometimes ended up preoccupied more with who would get to be department chair than with deeper questions of social and economic justice. Yet, early on Hartman does not have much patience for those who argued that the left had forsaken its working-class constituency in what he calls “normative America” for a new brand of emancipatory cultural politics. A more patient engagement with this argument would have allowed him to limn the limits of the “New Left” from the start. It might also have given him a little more sympathy, if not for the leading think-tank neoconservatives, then at least for all those bewildered people drifting within “normative America” itself. As it is, although this is not an especially partial or unfair account, there is no doubt where the author’s sympathies lie. Sometimes he conveys these very subtly, but even then they distort the overall picture. The left is described in essentially objective terms, allowed to speak for itself, sometimes criticized, but almost always forgiven. The right, by contrast, is psychoanalyzed and subjected to frequent spot-checks for concealed motives.

Hartman is pleased with the victories won by the “New Left,” but now urges us to place our focus on economic and not just cultural issues. But the culture wars he describes in this book have long conditioned us to see the personal as political and to identify justice narrowly with personal liberation. He is right to think that this approach leaves important issues off the table. But then, it always did. Why, the reader may wonder, does Hartman seem to notice this problem only at the end of his story? And why, as we enter a new era of similar conflict, should we doubt that the same mistake will happen again?


Posted by Paul Horwitz on December 21, 2015 at 01:31 PM in Paul Horwitz | Permalink | Comments (0)

Saturday, December 19, 2015

Donahoe v. Richards, the Shahada, and Education About Religion in Public Schools

In the nineteenth century, many common or public schools, believing that religious and moral education was important but facing doctrinal disagreements within the broad Protestant majority, adopted a practice that John Jeffries and James Ryan call a "least-common-denominator Protestantism" that avoided areas of controversy. In particular, Horace Mann, secretary of the Massachusetts board of education, instituted "a strategy described as 'a stroke of genius.' Mann insisted on Bible reading, without commentary, as the foundation of moral education." Students would simply read aloud the unadorned verses. As Jeffries and Ryan note, this was not at all satisfactory to the Catholic minority or Church officials:

Unaccompanied Bible reading, which was the cornerstone of the Protestant consensus, was to Catholics an affront. Public school students read from the King James Version, which the Catholic Church did not recognize. Indeed, the very fact of a direct and unmediated approach to God contradicted Catholic doctrine. The Douay Bible provided not only the officially approved English translation of the Scriptures, but also authoritative annotation and comment. Reading the unadorned text invited the error of private interpretation. As one cleric put the point in 1840: “The Catholic church tells her children that they must be taught their religion by AUTHORITY--the Sects say, read the bible, judge for yourselves.” [Para.] Religious conflict over Bible reading grew intense. In Maine and Massachusetts, Catholic students suffered beatings or expulsions for refusing to read from the Protestant Bible[.] 
A couple of arguments, relevant for present purposes, were made by the courts that upheld the imposition of discipline in these cases against students who refused to perform the exercise. One was that the courts should not ride herd too closely on particular decisions made by the schools--their choices of particular books or exercises, etc.; the remedy for that must lie in the political process. Another was that merely being required to read Bible verses, without commentary and without any obligation to believe or follow them, 
is not in fact, and is not alleged to have been, [instruction] in articles of faith. No theological doctrines were taught. The creed of no sect was affirmed or denied. The truth or falsehood of the book in which the scholars were required to read, was not asserted. No interference by way of instruction, with the views of the scholars, whether derived from parental or sacerdotal authority, is shown.
The Bible was used merely as a book in which instruction in reading was given. But reading the Bible is no more an interference with religious belief, than would reading the mythology of Greece or Rome be regarded as interfering with religious belief or an affirmance of the pagan creeds. A chapter in the Koran might be read, yet it would not be an affirmation of the truth of Mahomedanism, or an interference with religious faith. The Bible was used merely as a reading book, and for the information contained in it, as the Koran might be, and not for religious instruction; if suitable for that, it was suitable for the purpose for which it was selected. No one was required to believe or punished for disbelief, either in its inspiration or want of inspiration; in the fidelity of the translation or its inaccuracy--or in any set of doctrines deducible or not deducible therefrom.
Donahoe v. Richards, 38 Me. 379, 398-99 (1854); see also Commonwealth v. Cooke, 7 Am. L. Reg. 417, 423 (Boston, Mass., Police Ct. 1859) ("N]o scholar is requested to believe [the Bible], none to receive it as the only true version of the laws of God.").
Obviously, our views on the propriety and constitutionality of religious moral education in public schools have changed, although most people believe public schools should, must, or inevitably will engage in the moral indoctrination of their students. But I don't think that's the only reason many people would have a problem with the program described above, or with the reaction of those contemporary courts to the mandatory reading of Bible verses. I think the current intuition would disapprove of that exercise even if it were taken for granted, as it was at the time, that schools should engage in moral teaching, and that moral teaching involved a Christian component. Students in such a situation are being made to participate personally and vocally in an activity that engages serious questions of belief, and in which reading the verses, with or without belief, nonetheless enacts a kind of statement of faith or a violation of one's own existing faith. It's at least partly a performative act--somewhere in between making a promise or swearing an oath on the one hand, and pretending to get married while appearing in a play on the other, but far closer to the former than the latter. Students should not lightly be asked or required to do it, whether they are told to believe what they say or not.
Given that background, I think some of the reaction to the complaints about a Virginia school teacher who gave students the homework assignment of copying the shahada--the fundamental statement of faith of Islam and one of the five pillars of the faith, generally translated as "There is no God but Allah and Muhammad is his prophet"--misses something: misses, in fact, the kinds of concerns that make the courts' arguments in cases like Cooke or Donahoe unconvincing.
Lord knows that is no defense of the more heated reactions of parents and others, some of whom sent the usual array of vile threats and disgusting messages. (Also overheated, however, was the subsequent closure of the entire school system for a day by its officials, despite the absence of specific and credible threats.) I shouldn't need to say that, of course, but I want to be clear. Nevertheless, I don't think the defense of the exercise, described in the Washington Post and the Staunton News Leader with the following language, was quite adequate: "The assignment was meant to give students a sense for the art of calligraphy, . . . and the teacher did not have the students translate the statement into English, require students to recite the statement, or say they believed in it." The students were told that the Arabic script they were required to copy was the shahada, and what it meant. The purpose of the exercise was of course quite different from the nineteenth-century practice of reading Bible verses described above, although I imagine that there was a component of moral education involved in the present-day exercise. But the defense of the exercise is not that different, and I think we should react to this particular assignment with at least some caution.
None of this, of course, is meant to disparage the importance, or constitutionality, of religious and/or cultural education in the public schools, or the value, in building civilized citizens, of teaching them about a major faith and civilization in world history. That would be worth doing regardless of any questions of teaching tolerance or combating Islamophobia, for the simple reason that a decent education ought to educate; but of course that too is a part of the value of the lesson, and anti-Islamic sentiment surely had everything to do with the heat of the negative reaction.
That does not mean, however, that any concern about the exercise is illegitimate, or that any and all educational lessons taught with good intentions are equally constitutionally permissible or wise. I am not sure that asking students to copy out by hand the major vow of belief in and allegiance to a particular faith is a permissible or a wise lesson choice, even if an opt-out is given, and for much the same reasons that I think the courts were wrong to uphold the requirement that students read Bible verses aloud without having to believe in them. At a minimum, in responding to the whole incident, we should keep cases like Donahoe v. Richards and Commonwealth v. Cooke somewhere in mind. I have no doubt that students can be taught the words of the shahada, and the shema, and the Lord's Prayer and the Four Noble Truths of Buddhism and so on. But, despite teachers' general enthusiasm for more participatory and hands-on exercises, they should be more cautious in asking students to engage in performative or performative-lite acts or statements involving these or other faiths (including, incidentally, the students' own faiths).       

Posted by Paul Horwitz on December 19, 2015 at 12:22 AM in Paul Horwitz | Permalink | Comments (0)

Thursday, December 17, 2015


I see around the web that it's time for year-end book roundups and recommendations, especially for those seeking last-minute gifts and such. Here are a few, not specifically in law and not necessarily published this year. 

1) Now available in paperback, Zia Haider Rahman's novel In the Light of What We Know is superb. Booklist calls it an "expansive novel [that] sprawls over the past half-century and has as its primary settings the U.S., the UK, and South Asia. Its nameless narrator is an upper-class Englishman of Pakistani parentage, and its main character and secondary voice is the Bangladeshi-born Zafar, the narrator’s brilliant former Oxford classmate. Our narrator gets ensnared in the banking scandals of the early 2000s, and Zafar in the coterminous conflict in Afghanistan. This is, in part, a novel of international geopolitics going back to American involvement (or inaction) in the South Asian wars of 1971; in part, a novel of global finance; in referential detail, a novel of ideas; and, in addition, a novel of personal relationships in which issues of caste and class figure prominently." It's true that the book is substantially about politics and ethnic identity, but for me its many musings about social class, along with its perceptive depictions of failures of self-knowledge, are what make it worth reading. I'm not much of a reader of recent novels, but I thought this one was terrific. The author studied law and banking in the US and UK and has been both an investment banker and a corporate and international human rights lawyer; the book contains many lessons--not necessarily welcome ones. and they won't be learned anyway--for people of this ilk. James Wood's review, which convinced me to read the book, contains the following passages, which are worth reading in themselves and aptly describe why I liked the book and think it would be good for our usual audience and peer group here:

[W]hile “In the Light of What We Know” is full of knowledge, it is never merely knowing. It wears its knowledge heavily, as a burden, a crisis, an injury. This is because Rahman is interested in the possession of knowledge, and in the politics of that possession. Who gets to be called “educated,” and why? And what does knowledge, in a place like Yale or Oxford (or a city like New York or London), really consist of? Why should three or four years studying classics or economics, in élite and antique corridors, be a qualification for, say, running an N.G.O. in Kabul, or talking authoritatively about radical Islamism or human rights in Pakistan? Rahman is deeply suspicious of our claim to know things, and his long novel attempts to tell us, again and again, that we know much less than we think we do, that intellectual modesty in the face of mystery and complexity may be the surest wisdom. . . . 

Even knowledge itself, the novel’s narrator suggests in the book’s final, and distinctly religious, peroration, functioned as a kind of metaphor for Zafar: it was his attempt to find a home. He acquired knowledge—so much of it, and so greedily—not to “ ‘better himself,’ as the expression goes,” but

in order to lay ground for his feet to stand upon; in order, that is, to go home, somewhere, and take root. I believe that he had failed in this mission and had come to see, as he himself said in so many words, that understanding is not what this life has given us, that answers can only beget questions, that honesty commands a declaration not of faith but of ignorance, and that the only mission available to us, one laid to our charge, if any hand was in it, is to let unfold the questions, to take to the river knowing not if it runs to the sea, and accept our place as servants of life. 

2) Between some surgery and a fair quantity of pain medicine, last year and this one were somewhat lost, or at least misplaced, years for me. It is fortunate, then, that it was the year I finally "discovered" World War II as an abiding fascination and reading subject. Lord knows the world is almost as full of enthusiastic readers of WWII histories as it is enthusiastic writers of WWII histories. I am embarrassed that I joined their ranks relatively late in life. The gateway drug for me was Rick Atkinson's Liberation Trilogy, which covers the Allied war in Africa, Sicily and Italy, and Western Europe from the time of the Americans' entry into combat through V-E Day. Atkinson was a foreign and military correspondent for the Washington Post before turning to military history, and he is--unlike many newspaper reporters who have turned to book-length journalism--a superb writer, with an exceptional eye for both anecdotes and set pieces. I started for some reason with the third book in the trilogy, whose extended account of D-Day is brilliant. It's largely a clip-job, but an expertly done one, and its detailed endnotes constitute a perfect reading list for those who want to dive into the ocean of WWII history. After this, I dare say you will also want to read everything Max Hastings has ever written on the subject too, and then about the war in Russia, whose savagery and losses dwarfed that of the war in the West, and then about the naval war, and then, and then...Not an entirely fashionable historical subject, but never an outdated one; and given that our legal culture continues to sanctify FDR, reading about the war, about Tehran and Yalta, and about such dreadful figures as Joseph Davies--may his monuments be renamed--provides a nice partial antidote to that.

More below.

3) Peter Olsthoorn, Honor in Political and Moral Philosophy. Almost a law book! Certainly relevant for a good deal of current constitutional law. The publisher's description says: "In this history of the development of ideas of honor in Western philosophy, Peter Olsthoorn examines what honor is, how its meaning has changed, and whether it can still be of use. . . . Today, outside of the military and some other pockets of resistance, the notion of honor has become seriously out of date, while the term itself has almost disappeared from its moral language. . . . Wide-ranging and accessible, the book explores the role of honor in not only philosophy but also literature and war to make the case that honor can still play an important role in contemporary life." Bookend this one with Jeremy Waldron's recent Dignity, Rank, and Rights and Joanne Freeman's classic history Affairs of Honor: National Politics in the New Republic

4) Like everything he has written since Cryptonomicon and Anathem, Neal Stephenson's Seveneves is pretty damn imperfect. But the first two thirds, describing the end of the world and the loss of most of humanity, are tremendous fun.   

5) I'm writing about class and the legal academy right now (if "writing" is defined loosely and with infinite mercy), and here are some good books, some recent and starting with several by law professors, that have added usefully to my small store of knowledge on the subject: Lani Guinier's The Tyranny of the Meritocracy: Democratizing Higher Education in America; Sheryll Cashin's Place, Not Race: A New Vision of Opportunity in America; Joan C. Williams, Reshaping the Work-Family Debate: Why Men and Class Matter; Daria Roithmayr, Reproducing Racism: How Everyday Choices Lock In White Advantage; Mike Savage, Social Class in the 21st Century; and a superb older book, Jerome Karabel's The Chosen: The Hidden History of Admission and Exclusion at Harvard, Yale, and Princeton.

6) I'm reading Richard Posner's new book Divergent Paths: The Academy and the Judiciary right now for review purposes, so I won't say too much about it, except the following: it's a natural gift choice for law students, professors, clerks, etc.; it contains the usual full store of enjoyable Posnerian observations and apothegms; and there is a good book, maybe several, contained within the book, although I'm not sure that judgment applies to the book itself.

7) If you have time to kill and already invested some of your weeks and months in the first three volumes, I can recommend the fourth and final volume of Isaiah Berlin's letters, Affirming: Letters 1975-1997. The best volumes, sheerly from a reader's perspective, are the second and third, I think. But for those who are interested in Berlin and value pluralism--and I think pluralism is a subject that is curiously missing from many current discussions of law and religion in the United States, stuck as they are right now on the liberty-equality debate, although it is coming back as a topic--this volume provides a lot of fairly detailed discussion of that subject, as Berlin, in the autumn of his life, answers questions from correspondents, defends and clarifies earlier statements, and, while rarely confessing error, notes the questions his position can't answer.  

8) Thomas Vinciguerra's Cast of Characters: Wolcott Gibbs, E.B. White, James Thurber, and the Golden Age of The New Yorker is the newest and lightest of these books and my last recommendation. What can I say? The New Yorker was an endless stream of enjoyable figures, fights, stories, and legends, and they are very well told here. If you haven't already read a stream of books about The New Yorker in its heyday, this is a good place to start; if you have, there's more than enough here that's new to justify reading this one. I'm struck right now, in the middle of reading it, by the loss of two wonderful genres of American literature, of which this book provides many good examples: the letter and the telegram. (In a letter from Ralph Ingersoll to Harold Ross, Ingersoll writes, "The river looks very tempting this afternoon. I suggest--not entirely--facetiously--that you go over and jump in it.") People don't waste their best wit on emails, and anyway they are too afraid of being misunderstood in that affectless medium to risk it. Between the examples given in the book and the everyday example of online media, whether FB or Twitter or the Gawker family, and at the risk of committing the Golden Age fallacy, I am filled with the impression that somewhere along the way, America mislaid its rapiers and stilettos in the dark and picked up bludgeons instead.          


Posted by Paul Horwitz on December 17, 2015 at 10:19 AM in Paul Horwitz | Permalink | Comments (4)

Saturday, December 05, 2015

A Brief Update on the "Movie Night" Post

A few days ago I posted about the AALS's upcoming screening and discussion of the movie "Hunting Ground," which deals with campus sexual assault. I noted the seriousness of the issue and my expectation that discussion after the screening would be varied and useful. But I also noted that the movie has received a number of strong criticisms, some of them related to an incident involving a law school that receives prominent play in the movie. I linked to some of those, and to the filmmakers' detailed defenses of the film (while noting that some of their general statements in defense of the movie are "heated but weak"). I concluded:

Given that one of the filmmakers will be present for the screening and discussion, I assume those points will be fully aired. At the same time, given that [writer/director Kirby] Dick describes himself as "both an activist and a filmmaker" (a common feature of many current documentaries and one that raises important concerns, particularly for those of us with more conventional views on journalism), and that one of the film's producers wrote to . . . [a representative of] a potential interview subject, "We don’t operate the same way as journalists — this is a film project very much in the corner of advocacy for victims, so there would be no insensitive questions or the need to get the perpetrator’s side," I thought that people thinking of attending the screening might want to be aware of these criticisms, and better able to explore them during the discussion.  

In light of the hope for full and useful discussion--why else screen a movie by activists, one that has been sharply criticized for bending its narrative toward its goals?--I should note this recent story in the Harvard Crimson, in which the filmmakers, inter alia, double down on their attack on critics. Here's the key paragraph from the story:

In an emailed statement, “The Hunting Ground” director Kirby Dick and producer Amy Ziering . . . criticized the Law School professors, many of whom have been vocal critics of Harvard’s recently overhauled approach to handling sexual harassment cases, for their letter critiquing the film. 

“The Harvard Law professors’ letter is irresponsible and raises an important question about whether the very public bias these professors have shown in favor of an assailant contributes to a hostile climate at Harvard Law,” Dick and Ziering wrote.

This places the possibility of useful discussion after the screening, and hence, perhaps, the value of the AALS's choice to screen the film at all, in a somewhat new light. (Given how recent the statement is, I of course don't hold the AALS responsible for not anticipating it, although it is probably true that the filmmakers themselves turn out to have been less than ideal panelists.) There are surely more charitable ways to read that statement. A less charitable, but still reasonable, reading is that the filmmakers are, in effect, threatening any academics who publicly criticize the film, attempting to cow them into silence by warning that any statements will trigger efforts to encourage a Title IX investigation of their institution.

Although I doubt they have a leg to stand on, it's an unfortunate approach, to say the least. I hope that AALS members attending the screening will nevertheless feel free to ask any questions they like, positive or negative, and will press the filmmaker on this particular statement itself. I also hope the screening's moderator will make note of this statement before the discussion starts, both out of fair notice to any would-be questioners in the audience, and to make clear the AALS's view that attempting to pre-emptively chill discussion is no way to address an important and pressing issue.   

Posted by Paul Horwitz on December 5, 2015 at 11:25 AM in Paul Horwitz | Permalink | Comments (0)

Friday, December 04, 2015

The CIA Learned From the Master

I'm grateful to Rick for posting an excerpt from that CIA document on organizational sabotage. I was surprised, when vast numbers of people started posting it on my Facebook feed, to find that the Slate article talked in general terms about "toxic workplaces" and that my 'friends' who were posting it--most of them academics--did not immediately relate it to university governance. For, as a commenter on Rick's post notes, it is academic governance to the life. It used to be even more so; when academics actually governed universities, and university governance also involved coordination among and between colleges, it could not more closely have resembled the CIA's pamphlet. Now university governance has been centralized and leadership has been assumed by, essentially, professional managers who may happen to have doctorates in some subject. (On the whole, and for all its costs and losses, flaws and absurdities, I think that is both inevitable and a probable improvement.) But it still very much characterizes the governance of individual faculties and departments.

I offer all this by way of pointing out that the much-shared CIA document bears a great similarity to a classic satirical work on academic politics, the Cambridge classicist Francis Cornford's Microcosmographia Academica. Indeed, I wouldn't be surprised if the author of the CIA pamphlet was aware of and cribbed from Cornford's essay. Every denizen, friend, or frenemy of the academy ought to read that short, hilarious, instructive work. I would add that it's short enough to print out and bring along to faculty meetings--mostly to have something to read, but also as a field guide and useful source of advice. (There is also a nice published edition with a historical and explanatory essay--makes a fine Chanukah gift!) Of course it applies more broadly than its original context of academic politics at Cambridge in the late 19th and early 20th centuries--if Wikipedia is to be credited, pieces of it pop up as dialogue in Yes Minister--but the university was its inspiration and it still applies there, at least within individual schools and departments. The CIA pamphlet is fun, but clearly some donnish young analyst recognized that for instruction in such matters, one must learn from the best.

Incidentally, it reminds me of a wonderful quote from the newest volume of letters by Isaiah Berlin. In it, Berlin is describing his friend John Sparrow, the long-serving Warden of All Souls College: 

In College, to which he was in a sense devoted, his principal achievement was blocking--with the greatest ingenuity, style and brilliance--the slightest change in its arrangements. He did not always succeed, of course, but his efforts in that direction were wonderful to behold . . . . [Despite occasional opposition on Berlin's part,] I cannot deny that I watched his manoeuvres to outwit and stymie his colleagues with the most fascinated, if somewhat disapproving, admiration. His virtuosity in that respect was, in my experience, unparalleled.



Posted by Paul Horwitz on December 4, 2015 at 10:25 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, December 02, 2015

Background reading for "Movie Night"

Yesterday the AALS made the following announcement about an event at its upcoming annual meeting:

The AALS Law and Film Series presents feature and documentary films chosen for their cinematic and legal value, identifying film resources for possible classroom instructional purposes, as well as for raising general awareness of law and film. For each of the two nights of film showings, we will present films chosen by the AALS Annual Meeting Film Advisory Committee. There will be brief discussions and commentary in connection with the films. . . .

Friday, January 8, 7:30 pm

The Hunting Ground is a 2015 documentary film about the epidemic of rape on American college campuses. The film follows several survivors of sexual assault as they encounter retaliation and pushback at every level of campus life. It details the lack of effective institutional response as the students discuss the failure of college administrators to support them and the toll reporting these crimes took on their lives. The film reunites writer and director Kirby Dick and producer Amy Ziering, the team behind the Oscar-nominated documentary The Invisible War. Join moderator Professor Jessica Silbey for a discussion after the film with Director Kirby Dick.   

Speaker: Mr. Kirby Dick, Chain Camera Pictures Inc. 

Moderator: Jessica Silbey, Northeastern University School of Law

I have not seen The Hunting Ground and cannot comment on its merits. It seems worth noting, though, both that the movie is prominently features a case involving Harvard Law School, and that a number of professors at the law school issued a public letter criticizing both the film and its treatment of that incident. They charge in the letter that the documentary "provides a seriously false picture both of the general sexual assault phenomenon at universities" and of the student accused in that specific incident and the process in that case. The Times article also links to this critique of the film, and specifically its treatment of that case, by Emily Yoffe in Slate. 

None of this, of course, is meant to question or even to comment on the very serious issue of campus sexual assault, which has been a concern of mine at my home institution. I assume that critiques of the film, and open-ended discussions about how to address the larger issue, will be very much a part of the moderated discussion and that this has always been the AALS's intention. The filmmakers have a response to the professors' letter here and a response to Yoffe's piece here. They are more detailed, certainly, than the responses provided by the filmmakers in the Times story and in Yoffe's piece itself, or here, all of which are heated but weak.

Given that one of the filmmakers will be present for the screening and discussion, I assume those points will be fully aired. At the same time, given that Dick describes himself as "both an activist and a filmmaker" (a common feature of many current documentaries and one that raises important concerns, particularly for those of us with more conventional views on journalism), and that one of the film's producers wrote to the attorney/relative of a potential interview subject, "We don’t operate the same way as journalists — this is a film project very much in the corner of advocacy for victims, so there would be no insensitive questions or the need to get the perpetrator’s side," I thought that people thinking of attending the screening might want to be aware of these criticisms, and better able to explore them during the discussion.  


Posted by Paul Horwitz on December 2, 2015 at 10:37 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, November 25, 2015

Bagenstos and "The Long Arc of the Accommodation Debate"

Howard always does a fine job of promoting his corner of Jotwell; I do not. But here is my con law jot on Samuel Bagenstos's excellent article "The Unrelenting Libertarian Challenge to Public Accommodations Law." Jotwell is devoted to writings that the editors and reviewers "like lots," but one can "like lots" an article that one doesn't entirely agree with, or that is not wholly in line with one's priors. When I can, I prefer to select articles of that sort for my own (rare) jots. So here is a jot on an article that I think superb and that "has troubled me for a year now." It is also, I suggest, one of the first and still one of the best of the current burgeoning line of what I call [anti-] "neo-Lochnerism" scholarship.

A contrary perspective can be found in the same journal issue in this article by Richard Epstein, but my discussion is along different lines. It spotlights the article's arguments and strengths, while emphasizing the implications of Bagenstos's observation that the balance between the "public" and "private," or "civil" and "social," spheres may prove permanently unstable and continually (but not constantly) contested. (In my view, legal academics are therefore unlikely to make unique or lasting contributions to the core conflict.) The strong critical insights Bagenstos brings to bear on previous attempts to fix the line between permissible and impermissible regulation apply well to the libertarian arguments he discusses, but they also apply to the other side of the debate.

One thing the article suggests, by comparison with later articles on "neo-Lochnerism," is that although many current liberal or progressive articles in the law reviews make use of Critical Legal Theory or Crit-type arguments to undermine their opponents and thus attempt to entrench a more egalitarian or progressive legal regime, there is a startling unwillingness in that literature to name CLS as the source of these undermining arguments, and still more reluctance to acknowledge that those arguments might undermine or destabilize their own positions. I should add that this point emerges from a reading of Bagenstos's article against some of the more recent literature; it's not a criticism of Bagenstos's article itself. Such, perhaps, is the inevitable fate of the Crits, who are applauded by normatively oriented legal scholars who are trying to resist some legal regime, but treated as unpersons when these scholars are trying to establish or entrench such a regime.

Some excerpts after the fold. If you haven't already, read Bagenstos's article!  

Samuel Bagenstos’s excellent article, The Unrelenting Libertarian Challenge to Public Accommodations Law, has troubled me for a year now. Anyone seeking to elaborate, and in some cases defend and expand, the developments it describes and, I think, implicitly criticizes, must reckon with it. As this Jot argues, however, so must supporters of Title II, who may find that their arguments defending it, and their reassurances about its scope and limits, are equally subject to the undermining logic of Bagenstos’s own critical—or Critical, if you like—argument. As he concludes, the conflict over just “how deeply the antidiscrimination norm may properly penetrate into previously ‘social’ spheres” is a real one, and unlikely to go away, for reasons that apply to both sides in the debate....

No matter their priors, people interested in public accommodations laws can profit a great deal from this article. Libertarians will find much valuable history and analysis, and perhaps an invitation to display greater candor or self-awareness about the nature of their project. Those who champion religious accommodation, even in the realm of public accommodations, for non-libertarian reasons will also find cause for concern here. For reasons both strategic and sincere, few supporters of religious accommodation want to attack entirely the underlying logic of laws forbidding discrimination in public accommodation, at least where race is concerned. Much of their own project consists of efforts to draw reasonable lines between for-profit and non-profit enterprises, or between the public and private or civil and social spheres. In doing so, they will have to reckon with Bagenstos’s article, which reveals the potential instability or incoherence of those efforts.

And defenders of an expansive reading of public accommodations laws, in the face of religious or other challengers and seekers of exemptions? They, too, ought to have reason for concern after reading Bagenstos’s article. That is perhaps the best evidence of its success as legal scholarship, of its genuinely analytic and descriptive nature. This is not simply a liberal critique of the libertarian challenge, but a critical take, drawing on the literature of Critical Legal Studies. Like the public-private distinction, he argues, the distinction between civil and social rights turns out to be “unstable and continually”—we might even say essentially—“contested.” Here, he cites Duncan Kennedy. Similarly, efforts to draw a distinction between commercial and expressive associations are “unstable.” He acknowledges that multiple readings and legal options are available in response to what, quoting Jack Balkin, he calls a “pervasive welfare state.”

Little wonder, then, that “[w]e continue to struggle over the proper placement of the civil-rights/social-rights line, nearly fifty years after Congress and the Supreme Court supposedly laid that distinction to rest.”(P. 1220.) .... 

If there is a surprise in the current neo-Lochnerism literature, it is that so much of it relies on Critical Legal Theory’s insights, yet virtually none of it cites the literature, or acknowledges the double-edged nature of those insights. A Westlaw search for articles containing the terms “Lochner” and “Hobby Lobby” since the beginning of 2012 yields 43 results; add “Duncan Kennedy” to the mix and the number plummets to two. One is mostly irrelevant, and the other is Bagenstos’s article. To reveal the instabilities in another’s argument is human; to fail to notice that you have also dug a hole under yourself is, well, all too human. It is telling, perhaps—whether of extreme certitude or great insecurity is not clear—that these efforts to entrench a new liberal settlement routinely deploy the Crits’ analytical moves, but otherwise consign the Crits’ names and works to the memory hole.

Therein lies the relative weakness of the new defenses of public accommodations laws against religious challengers, and the scholarly strength of Bagenstos’s piece. It does indeed suggest a more sweeping arc to the narrative of challenges to public accommodations laws, one connecting past, present, and perhaps future. It does so on a sound basis, mostly without appealing to essentially irrelevant arguments about the challengers’ motives or funding..... 

Most important, it recognizes that the instabilities and uncertainties in this area are inevitable and universal. The question “how deeply the antidiscrimination norm may properly penetrate into previously ‘social’ spheres”—whether its limits are substantial, whether the government may override associational choices altogether, or whether the balance rests at some unstable point in between—is and must be a subject of continuing contestation and re-evaluation. Every new era, with its fresh controversies, demands its own renegotiation—if not of the unstable line between “public” and “private,” then of the reasonable reach and limits of state power in practice. Hence the haunting nature of Bagenstos’s fine article. 


Posted by Paul Horwitz on November 25, 2015 at 11:15 AM in Paul Horwitz | Permalink | Comments (0)

Monday, November 23, 2015

Platinum Cards of Social Change II

In a post a couple of months ago titled "Social Movements: The Platinum Card of Social Change," I offered some thoughts on a Balkinization post by Mark Graber. There, Graber wrote, "The Constitution of the United States remains an effective means of combatting governmental policies that inflict stigmatic harm on members of the upper-classes, but a far less effective means of combatting government policies that inflict material deprivation on the lower classes." I suggested in response that "Graber's statement would still be largely true if it were extended beyond the Constitution and the courts, to say that social movements are a relatively effective means of serving the social interests of the upper classes, and a relatively ineffective means of serving the material interests of the lower classes." I concluded with this observation/prediction:

One might question whether the current prominence of the Black Lives Matter movement serves as a counter-example. I doubt it. For one thing, it's too early to know how successful the movement will be. For another, it's possible that the movement's greatest tangible reforms will end up being directed toward stigmatic harms shared by African-Americans of all socio-economic levels and not material harms suffered by the poorest in the community. Finally, and I suspect this is true of most or all social movements, at the end one would want to know how much of the actual payout resulting from the movement and whatever reforms it achieves is siphoned off, cy-pres fashion, by more affluent sectors--giving rise to more jobs by professional consultants, for instance, or resulting in foundation grants to think tanks and most certainly to universities and their many institutes

That sentence was recalled for me the other day by the announcement that Brown University "expects to spend more than $100 million over the next 10 years to deal with issues of racism and diversity at the institution." That announcement, of course, stands alongside Yale's recent announcement of a $50 million diversity initiative--directed primarily at faculty diversity, not at students.  

Since my prediction was based on the same historical experiences and tendencies, if not inevitabilities, that underlay Graber's post, there's no back patting involved here. I just thought the Brown announcement, taken together with Yale's and (doubtless, given both genuine sentiment and competition in the elite university market) others to come, was a striking example. One might add the following:

1) This shouldn't be seen just as a response to recent campus protests, I think, but should be seen as a response in some measure to BLM and other protests, debates, and social movements over the past year or so. A lot of the recent discussions have focused on universities and campus issues in isolation, but they should be seen as having some relation to a larger social movement. 

2) One needn't approve or disapprove of how private universities choose to allocate their resources to note nevertheless that if the most substantial acts of resource redistribution in response to such movements takes place at elite and/or well-funded universities--and, moreover, is often directed at faculty and administrators rather than students or applicants--this is not, perhaps, a response directed at those institutions or sectors of the population that most urgently need resources and reforms. We could, I suppose, view universities as serving as vanguards of social change; but we could also view the story as one of a form of capture or siphoning of the energy of social movements toward narrower and more elite interests.

3) I say nothing here about the motives of the institutions in question, or of those who end up devoting greater efforts toward, and/or enjoying more success at, resource redistribution within elite institutions than elsewhere. My assumption, however, is that we should apply to the universities' actions the same kind of analysis we would apply to the actions of other large corporations. I assume there is a good deal of sincerity in these actions (just as, in fairness, there is a good deal of sincerity when a tech company pushes for equal benefits for same-sex couples, or a religious closely held corporation sues to avoid complicity in the provision of coverage for abortifacients). But I also assume, as I would with other corporations, that sincerity alone does not result in the ostensible movement of tens of millions of dollars. Presumably there are also intra-institutional politics and resource disputes involved, and possibly these announcements are also efforts to buy peace, occasionally to buy silence or co-opt various actors, and to compete with other institutions in the university market. 

Posted by Paul Horwitz on November 23, 2015 at 11:01 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, November 18, 2015

Some Interesting Data From the Yale Law Journal Survey

A statement from the Yale Law Journal announces the release of two reports as part of a two-year project of "address[ing] our diversity challenges and identify[ing] ways we can better foster an inclusive community." One of those is described as qualitative. The other is quantitative: Patterns in Yale Law Journal Admissions and Student Scholarship, by Ian Ayres and Anthony Cozart. Many of the data are quite interesting, with "interesting" here meant more literally than the word generally is in blogging; the word is used with no intention of signaling irony, suggestiveness, or implicit judgment.

By way of background, I should note that I am (slowly, slowly) at work on a book about social class and the American legal professoriate, with the general and, I hope, non-partisan thesis that social class, both currently and as a matter of background, influences the individual and cultural surround of law professors and, hence, affects the issues they are most likely to view as salient and to make a focus of their writing. This is (I will argue) often implicit and relatively rarely acknowledged; that in turn often takes social class both as a subject and as an admitted influence off the table, and makes class itself a less salient or frequently examined issue or identity aspect than other aspects of identity that receive frequent discussion. Without here suggesting how scholarship might change if things were different, and what topics might be more frequently discussed and (as important) accorded more prestige if they were--and certainly without suggesting that it would or must necessarily come from a particular political position--I suggest that more self-awareness and -examination would have an effect on the body of scholarly work produced by law professors, if greater recognition were given to class and its effects on who we are and what we see and do. (Needless to say, I'm happy to hear from correspondents on this project--especially those law professors who think their own experience and/or background is highly unusual in one direction or the other, or conversely who think their background is utterly typical, and might be willing to share that experience and their observations and views.)

My project focuses on the professoriate, not the students. In the case of Yale, however, that distinction is famously thin and the data on students might be viewed as a study of embryonic law professors. Much of the interesting data appear in a chart at pages 7-9 discussing the characteristics of all applicants, including transfer and third-year students, to volumes 123 through 125 of the Yale Law Journal. There is this, for instance, on the political views of the applicants:

Political Views:

Democratic, Liberal, or Progressive 35%

Republican, Conservative, or Libertarian 9%

Moderate 17%

Other (e.g., Independent) 6%

Did Not Disclose 44%

I do not find any of this terribly surprising (and I  hope people don't equate "interesting" with "surprising"). But I am curious about the large percentage who did not disclose their political identification. There are all kinds of reasons one might refuse to disclose this, and having no reason at all or asserting that it ought to be irrelevant would be fine with me. But it is much higher than, say, the number of students who did not disclose or provided no information about their racial identification. Among other possibilities, I'd be interested in knowing whether many of these students were conservative and unwilling to say so. Or, rather, were they liberal or progressive and unwilling to answer for more strategic reasons--because they thought it would be detrimental to have too large a percentage of the class openly identified as such?

Highly interesting as well are the data on what the study calls "Family Characteristics." Of the students surveyed--who, remember, were students who had applied to the YLJ, not just the editors of that journal--46 percent disclosed family incomes of $100,000 or greater, including 19 percent from families with incomes over $250,000. (By comparison, those with family incomes under $60,000 made up 11 percent of those surveyed. Again, a high number of students--23 percent--did not disclose any family income information. On parental education, fully 45 percent of the journal applicants surveyed reported that both parents had attended graduate school--kind of a patrimonie des clercs. (No data are given on the percentage of applicants with at least one parent who attended graduate school.) Of the students themselves, 29 percent had attended Harvard, Yale, or Princeton, and 43 percent some Ivy League university, while 35 percent attended a private non-Ivy university; by contrast, the 2011 CHE Almanac showed 73 percent of post-secondary students attended public colleges and universities and 0.4 percent attended Ivies, with 16 percent attending private colleges and universities. Only six percent of the applicants surveyed provided no information about their educational background. Also, ten percent had also attained a master's or doctorate.    

All interesting, and of course there is much more in the study. For my purposes, I regret that the portion of the study that looks at students whose notes or comments were accepted for publication focuses on race and gender only, not on family or educational background. 

Posted by Paul Horwitz on November 18, 2015 at 08:26 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, November 11, 2015

A Good Week for Civil Liberties and (Maybe) Old-Fashioned Liberalism

It is now a commonplace assertion that in various ways, our social dialogue, especially on college campuses, is echoing or repeating the debates over "political correctness" that gained great prominence in the late 1980s through the mid-1990s. Although an article by Jonathan Chait helped lend a lot of attention to the "we're reliving the 90s, give or take Kurt Cobain" thesis, it was on many people's minds for some time before that. Initial critical responses to Chait's argument were interesting. Many were primarily ad hominem, while studiously avoiding the thesis itself; others agreed with the thesis and deplored some excesses while describing it as an "internal problem"; nothing to see here, folks! While there was certainly some skepticism about the general claim, few denied it outright. (I have no problem with the skepticism as such, incidentally. How to characterize the mass of people's views, when to conclude that anecdotes are indicative of a social trend and when they are not, and what weight to give it are standard problems of recent history and subject to standard contests. It is fair, however, to note that it is a common problem. We have long since accepted, more or less, a standard narrative of the 1960s in America that makes sweeping characterizations about the wider culture based on the complex, mixed actions of a relative few, and that asserts a connection between the hippies and protesters of the United States and more revolutionary movements in Europe, rather than seeing them as incidental or exceptional, or finding more kinship between these American individuals and 50s liberals, or hedonists of any age, although the long-term arc of that generation was at least as much careerist, self-serving, and establishment-oriented as revolutionary. Moreover, contemporary progressives also rely on anecdotes to make sweeping and optimistic, albeit different, arguments about the narrative of our own time. Such is the ineluctable nature of contemporary historical argument.)

The events of the last week--at Yale, especially, and the incident involving a reporter at Missouri--have shifted that narrative rather quickly, although perhaps no more justly. Anecdotes are still anecdotes. Still, Chait (sorry to focus so much on him; it's not a matter of strong identification or agreement, so much as that he nicely represents and records the shifts I'm discussing here) is probably right to observe, with a certain amount of earned satisfaction after the personally directed drubbing he took, that it is okay for more people, including supporters of the movement, to talk about "political correctness" now. We needn't and shouldn't make much of the label itself. The point is that more people are now willing to accept as an actual trend an impassioned movement stressing identitarian issues, strongly privileging a forceful form of egalitarianism over potential competing liberty interests, arguing for a radical departure from traditional interpretations of free speech rights, and insisting that, both as a matter of initial description and in those cases where they must be balanced against other interests, free speech rights conventionally understood should be subordinated to equality interests. That is, indeed, the 90s debate redux. Of course there are differences--in controversies, language, institutions, and so on. There are also differences between mallards and blue-winged teals. But the kinship is clear and more people, on both sides of the debate, now accept it with less caviling or outright resistance. 

What was missing was the ability to foretell where things would go next. In the 90s, ultimately many lessons were learned from the movement, but its more non-liberal edges, particularly in the area of free speech, were smoothed over. Ultimately, there was significant pushback from liberal institutions and individuals, on and off campus, who reasserted their views and authority--or hegemony, if you prefer.

My sense is that the events of the last week have gone a long way to complete that half of the 90s-analogy equation. The critical--or reactionary, if you prefer--response has been swift and pretty widespread. Civil libertarians, rather thin on the ground this past decade, have been more vocal. Most important, perhaps, and this was true and essential in the 90s as well, many of the critical voices have come from within the liberal, and even the progressive, fold (if one thinks of the two terms as involving more than propaganda strategies and sees an actual difference between them, as I do). We always and necessarily see through a glass darkly. But my sense is that, precisely because of and not despite these high-profile incidents, this has been a very good and encouraging week for traditional civil libertarian views of free speech. 

Two notes are worth making here. The first is that, although my preferences are perhaps plain, this is intended mostly as descriptive, and whatever agreements or disagreements I may have with particular movements and arguments, my description does not depend on any conclusion that the current campus movement has no legitimate grievances or insights to offer. It has both, in my view--although, of course, that hardly requires unquestioning acquiescence on characterizations, goals, or remedies. Nor, although I tend to have fairly traditional liberal and civil libertarian views on free speech and related matters, does the increased likelihood as of this week that those traditional views will reassert themselves, on the ground and in public dialogue, immunize them from ongoing criticism and revision. Differing views about broad, fundamental, and incommensurable goods and values are always on the table. It is no more illegitimate for progressives of a strongly egalitarian cast to push for a recalculation of the balance between liberty, equality, dignity, and so on than it is for religious conservatives to argue for a readjustment of the balance between private conscience and public legal obligations. These things are always up for debate and renegotiation, and arguments about who is on the "wrong side of history" have little intellectual value on this side of the Eschaton. I suspect the recent incidents will lead to a reassertion of the hegemony of more conventional and less radically egalitarian liberal views on free speech; but I will be perfectly content if this is not accepted uncritically as a good thing. 

The second and, to my mind, more interesting question is whether, if I'm right about the general prediction that this was a good week for traditional civil libertarian and conventional liberal views, much or any of that good will end up credited to the account of what used to be a fairly substantial social force: liberals and liberal institutions. If the 90s debate ended up with a reassertion of intellectual or institutional authority by liberals, as against more radical views on campus, that depended on the existence and power of both establishment liberals and liberal establishments. It made a difference that there was a Henry Louis Gates to write "Let Them Talk," a New Republic to publish it, and a White House to stock the magazine as its in-flight reading (as TNR's publicity department never tired of reminding people back then). Are the same institutions there today, or as likely to assert the same views? The New Republic has changed owners and philosophies, demonstrated an eagerness to disavow virtually the entire magazine's past in response to criticisms of its current status as a vertically integrated thingamajig, and was silent on all these issues for a week (despite running countless other items on transient matters) until it ran a piece today--and that piece was largely about validating and appealing (in the sense of appealing for their readership) to student activists, while mostly studiously avoiding any discussion or position on civil liberties questions. The Missouri ACLU spoke out about matters of press access. But the ACLU as a whole, given issues on which it has switched positions or avoided much vocal activity altogether, is less strongly associated with liberalism or even conventional civil libertarianism today than it was 20 or 50 years ago. Its public prominence on these issues has largely been claimed by groups solely concerned with campus civil liberties, or by groups more closely associated with conservatism. (Often, rightly or wrongly, the former groups are categorized by many as members of the latter set of interest groups, just as the ACLU was traditionally lumped together with liberal interest groups by many despite asserting that it had no political valence.) The center of liberalism, or progressivism, has shifted considerably, a matter on which I again take no normative position here. Having shifted, it's not clear that there will be as many liberal groups or thinkers ready, willing, or able to take on the role, or acquire the credit, that ultimately accrued to conventional liberal figures and institutions 20 years ago.

My sense, and prediction, is that this will have turned out to be a good week for the reassertion of more conventional, old-fashioned, liberal and/or civil libertarian views on matters of campus speech, free speech more generally, and the eternally difficult balance between liberty and equality. But I am much less confident that any benefits or acclaim for this will accrue to liberal groups or institutions, as opposed to groups and individuals that identify as conservative. If I'm right about that, I will tend to think of it as cause for regret, although I don't think my feelings about it are terribly important.  

Posted by Paul Horwitz on November 11, 2015 at 01:46 PM in Paul Horwitz | Permalink | Comments (0)

Wednesday, November 04, 2015

Other Data I Would Like on Bar Passage--and Some Questions Not Entirely Susceptible to Data Analysis

I have learned a lot from both the serious and the casual work of Michael Simkovic. This is not entirely a matter of normative agreement, or at least I hope it's not, since the "greatest new scholar ever"/"worst villain since Stalin" dichotomy that tends to follow in the wake of work of his posts does seem normatively driven and rather silly. And I think it's both fine, and correct, to say that failure to pass the bar exam on the first try is not the end of a potential lawyer's career. That said, I would like to know more than he provides in this post.

In particular, I would like to know first-time and subsequent bar passage rates by school. It is true, as Simkovic writes, that the failure to pass the driving test on the first time is not generally viewed as precluding an opportunity to take it a second or third time. (Although perhaps we should be stricter with driving tests, and in any event my intuition about driving tests seems different from my intuition about, say, failing the medical boards multiple times. Driving and practicing medicine are both privileges, and both are dangerous activities. But no one thinks in terms of a right to be a doctor, and while driving helps in all sorts of primary activities, medical school is a long hard slog for the specific purpose of engaging in the practice of medicine and "MD-advantage" jobs.)

But if a driving school has a record of sending off its students to fail the driving test on the first attempt, and particularly if it consistently has a worse record than competitor schools with a similar client base, surely that suggests that there are problems with that driving school--even, in some cases, that the school is taking undue advantage of its students. Moreover, the worse the driving school's record is, the more likely I am to suspect that subsequent passage has much to do with the driving student's own efforts to study for and retake the test, perhaps more than once, and that the driving school itself did not contribute significantly to that ultimate success. In such circumstances, it would be fair to conclude that if other schools achieve better results with something like the same cohort, students may be made worse off by having gone to the lower-passage driving school rather than another school. Turning to law and speaking more generally, perhaps the ability to pass the test on subsequent tries, possibly despite rather than because of the education provided by that particular school, indicates either problems with using the bar exam as a barrier to entry at all, or with insisting on an ABA-accredited law school degree as a prerequisite to taking the exam, or some combination of the two.      

I would also like to know more about subsequent careers. Simkovic focuses mostly on future earnings for those lawyers, asserting that first-time bar exam failure is probably correlated with lower earnings ability but arguing that this matters less than the value-added to those eventual lawyers of having attended law school. That may well be true--for the lawyers. But I'm also--perhaps primarily--interested in the clients, beside whose needs, problems, and disadvantages the current or future well-being and state of relative disadvantage of law students seems to pale in both magnitude and importance.

What is the disciplinary profile of lawyers who failed the bar exam the first time, or second or subsequent times, compared to that of lawyers who passed on the first round? This LSAC report on a study of lawyers admitted to the Connecticut bar between 1989 and 1992 found that "approximately 6.7% of the never disciplined group failed the Connecticut bar examination on at least one occasion prior to admission, as compared to a nonsignificant difference of 10.7% of the severely disciplined group (see Table 6), and 16.9% of the less severely disciplined group (p < .05, Table 5)." But the study has appropriate caveats about its limits and about problems obtaining some data, especially about discipline in other jurisdictions. And I would want to know more about whether lawyers taking the bar exam in Connecticut fit a similar profile with lawyers taking the exam in other states (like Florida or California) and attending a different array of schools. I also would want to know something about the number of complaints filed, not just discipline imposed. It's a problematic number, not only because complaints are not proof of wrongdoing but because some clients may be more likely to complain with or without reason. On the other hand, lots of grievances stemming from genuine problems of poor management or low competence or unfairness to clients are disposed of without proceeding to final disciplinary decisions.  

I don't know whether there are other studies out there. I do note this report based on an examination (by reporters, not professional social scientists) of a much larger number of people taking the qualifying exam for stockbrokers, which suggests that those who failed the test repeatedly had worse disciplinary records than those who passed the first time. I would similarly want to know, regarding the bar exam, whether the likelihood of disciplinary problems went up with multiple failures. After all, few people, if anyone, think that people have a right to take the bar exam an indefinite number of times. So we might be interested, for clients' sake, in setting a cap on the number of times one can take the bar exam. Fail me once, shame on you; fail me eight times, shame on us.  

 The story also notes that one response contemplated by the Financial Industry Regulatory Authority was to disclose to investors the prior failure or failures of the stockbroker. Perhaps we could balance the interest in allowing lawyers to take the bar exam multiple times against the need to protect clients and provide them with relevant information by requiring lawyers to disclose to clients their prior failure on the bar exam. Just as law students should be treated as adult agents and allowed to make their own decisions whether to attend law school, as long as the schools are providing accurate information, so clients might be given that information and permitted to decide for themselves.     

Most of these questions are just that--questions. I'm not criticizing what Simkovic does provide, or strongly disagreeing with the conclusions he offers; to the contrary, I'm grateful for the post. I simply would like to know more before signing on to particular conclusions or recommendations too whole-heartedly. I would especially want to know more about the welfare of clients as well as the future success of lawyers. And I take it Simkovic would agree that none of what he does say precludes a number of possible concerns and conclusions or normative views.

Taking it as a given that first-time failure does not say enough about subsequent success or competence as a lawyer to justify stringent rules barring subsequent retaking of the test, and that the first-time bar passage rate does not tell us everything about a law school that we would want to know, I take it one might still conclude, depending on additional data but also on some reasonable normative views, that: 1) a high first-time failure rate might indicate problems at that school; 2) high subsequent failure rates would also be cause for concern about that law school; 3) if first-time or, perhaps more likely, repeated failure of the bar exam correlates to a greater likelihood of subsequent complaints or discipline, that should be cause for greater concern, given that the primary concern of state bars and accrediting agencies, if not the law schools themselves, should be the welfare of clients; 4) other measures, like disclosure of failures to pass the bar exam, might help address concerns for client welfare and are not out of the question; 5) given the relevant information, we might be able to think productively about setting a cap on the number of times one can sit for the bar exam; and 7) none of this is dispositive on the question whether barriers to entry into the legal guild should depend on one or both of a degree from an ABA-accredited law school and/or passage of the bar exam as presently constituted. 

Finally, a few words on this passage:      

It would be strange if newspapers claimed that those who fail a road test on the first try are doomed to never obtain a drivers license, will never be able to hold down a job, and should never have enrolled in high school in the first place.  But in the world of legal education, members of the press too often make comparably misinformed claims about law students and the bar exam.

It's just an analogy, of course, and thus of limited probative value; lawyers over-rely on arguments by analogy, in any event. As it happens, I agree with some of what it suggests. But it's a little odd. The most serious concern with the analogy is that it links the driving test to education in general, not to driving schools in particular. We generally require every child to enroll in high school, treating it as a gateway to responsible work and citizenship in general; we do not treat a legal education as necessary for all. If a particular high school failed to graduate a substantial number of its children, we would of course want to know what external factors, such as poverty, contributed to that. But we would also worry that the school was failing in important respects, especially if similar schools with comparable cohorts were doing a better job of education, as reflected (imperfectly, perhaps) in graduation rates. It would be strange if someone claimed that someone who fails to pass a driving test on the first try is doomed never to be able to hold down any sort of job, driving-related or not, but I've never heard such a claim. Conversely, given appropriate data, one might reasonably be more concerned about whether those who fail a driving test two, three, or more times should be employed in a job whose primary activity is driving a fast, heavy, dangerous vehicle. Concern for the future earnings of that individual might be viewed as less important than the possibility of that individual inflicting harm on innocent third parties. Newspapers may well be wrong to say (if they have said it) that a first-time bar exam failure suggests that the individual will never be a competent practicing lawyer and should never be able to retake the test, and should not even have been able to enroll as an undergraduate. They might be on more solid ground if they suggested that schools that show a low bar passage rate as compared to similar other schools might be doing a disservice to their students and might have problems that need to be addressed. And they certainly ought to factor the well-being of clients, and not just lawyers and law students, into their reporting or opining. Again, however, it's merely an analogy and less important than the material provided in the rest of the post, for which I'm grateful.       


Posted by Paul Horwitz on November 4, 2015 at 10:35 AM in Paul Horwitz | Permalink | Comments (0)

Sunday, November 01, 2015

The Lawyering-Up of Bin Laden's Killing, Project Censored, and the Long-Noted Downside of the Culture Wars

I finally got around yesterday to reading Charlie Savage's book excerpt in the New York Times earlier this week, "How 4 Federal Lawyers Paved the Way to Kill Osama Bin Laden." It's a fascinating story and well worth the time. Among the newsworthy items in the story are the apparent lockout of the Attorney General (despite urging from the head of the National Counterterrorism Center that the AG be briefed), the Office of Legal Counsel, and the State Department from any role in offering legal advice on the raid; the narrow compass given to any reading of obligations to accept surrender, which really was more of a clear instruction to kill Bin Laden unless he was "naked with his hands up"--in effect, according to the account, soldiers were told that if he was wearing clothes, Bin Laden should be shot and killed; and the particularly flimsy legal excuse for burying him at sea. ("The Geneva Conventions call for burying enemies slain in battle, 'if possible,' in accordance with their religion—which for Muslims means swift interment in soil, facing Mecca—and in marked graves. Still, some Islamic writings permit burial at sea during voyages. The burial memo, handled by Admiral Crawford, focused on that exception; ultimately, burial at sea is religiously acceptable if necessary, and is not a desecration, it said." An odd reading of the facts in the case of a man captured and killed in northeastern Pakistan, hundreds of miles from the Arabian Sea.) The story is, one might say, more about legal patinas than about law. Noah Feldman has a nice column about it, and there are interesting posts by Eric Posner and Jack Goldsmith. But there's not all that much more. 

After a decade and a half of debate over legal issues surrounding the waging of the war on terror, the relationship between law and the war and terror, and the effect of both on executive branch power, one would hope to see more discussion than this! "Discussion" doesn't mean criticism, condemnation, or hyperbole, although it is clear that at other times and if penned by different hands, the memos on the killing and the burial, at least, would have provoked some of all three. "Discussion" means discussion. And it is surprising--and, I think, dispiriting--just how few writers and sites that once would have been all over this story have bothered even to mention it so far.

Focusing on those progressive sites that have written often about war-on-terror issues, using this list, and using search terms like "Laden," "Bin Laden," and "Savage," I found: 1) nothing in The Nation, which did however offer a lengthy story on the 29th about how old prisons are being sold for use as "sites of social change"; 2) nothing in Mother Jones, which on Friday offered "5 Reasons You'll Love This Book About Ruth Bader Ginsburg, a.k.a. Notorious RBG"; 3) nothing on Talking Points Memo, whose banner photo and headline today announce, "John Oliver Doesn't Want Trump On His Show"; 4) nothing on Think Progress, which did find room for stories on "[chef] Anthony Bourdain's Wake Up Call to Trump on His Deportation Plan" and the Houston "Bathroom Ordinance"; 5) nothing on Daily Kos (recent "most shared" story: "New Anonymous video confirms threat to reveal 1,000 members of KKK & invites public to join"); 6) nothing on AlterNet (featuring "5 Comically Crazy Right-Wing Moments This Week"); 7) nothing on CounterPunch (whose lead stories include "J.K. Rowling and the Prisoners of Israel"; at least it's foreign "reporting"); 8) a 47-word item on Rachel Maddow's blog--huzzah! (lead item: eight paragraphs on Bernie Sanders talking about whether he believes in God on the Jimmy Kimmel show); 9) nothing on Salon (lead stories include a feature on the "brilliant 'Satanists' who drive the faith-deranged nuts," which seems redundant, and why "the war on women is not a war at all; it's a one-sided assault by sad, insecure little men"); and 10) nothing on In These Times, which currently leads with a 20-paragraph film review discussing how "The new documentary The Black Panthers, Vanguard of the Revolution is full of insights for today’s racial justice activists." Out of nostalgic affection for an old and much-diminished friend, I checked The New Republic--formerly self-identifying as liberal but widely condemned as center-right, now definitively progressive--and found nothing, although there is a fine story on "the most progressive paid leave bill in America," written by the director of a "national network of coalitions" that advocate for paid leave bills. If there was anything on Slate, I couldn't find it--can anyone find anything on Slate?--but there was no shortage of standard culture-war stories.

This was a rough search, and I'm sure there were some items squirreled away, here or elsewhere. But if that result doesn't suggest not just a paucity of coverage, but practically a news blackout, I'm not sure what does. If only out of an undue fondness for dictionaries, I have never been a big fan of Project Censored, whose actual focus is not on censorship, but on significant stories that have been "that have been overlooked, under-reported or self-censored by the country's major national news media." "Overlooked, under-reported, or self-censored" sounds about right in this case. I guess it has a new project to pursue. 

Many of these sources have in the past run plenty of stories about Bin Laden and Bin Laden's killing; obviously, given the latter, they ran many stories during the Obama administration, including critical ones. But, as I noted above, for the most part the work of these sites these days is more or less one of full-time culture-war coverage. No stone is left untured--if that stone was thrown by a former Olympic decathlete who now out-earns Croesus by appearing on reality television. Foreign coverage, or coverage of important but (apparently) less sexy legal issues in the war on terror, not so much (unless the issues involve potential threats to readers' safe access to the Internet from the beleaguered frontiers of Park Slope).

We needn't belittle so-called culture war issues to lament the lopsidedness with which they are covered and other issues neglected. Most of my work these days relates to culture war issues. That hardly means the subject is important--scholars (one hopes) work within their areas of expertise, on issues that fade in and out of public prominence and that may or may not be widely viewed as important--but it does suggest that I find them interesting and important enough to spend time on. But we might look back to the last heyday of the culture wars, in which some worried that the whole idea of the culture wars was "literally manufactured" in order to drive up votes on the right and "pre-empt intelligent discussion" of other important issues, or that, in Thomas Frank's words, "The culture war is a contest largely fought out between square corporate ideologues and hip corporate ideologues." Or, to quote someone from the other side of the divide, Paul Weyrich, "Yes, [social issues] are emotional issues, but that's better [at drawing voters] than talking about capital formation." (The quote and the first brackets are taken from Reva Siegel and Linda Greenhouse's 2011 essay about Roe v. Wade and backlash.) More recently, Andy Koppelman, long a strong advocate of same-sex marriage, has also recently argued that "American politics increasingly embodies [the] mantra: Eat the Poor," and that "[t]he American Left's focus on the culture wars was inevitable, but it has been unfortunate to the extent that it has distracted us from [other, especially economic] issues." 

I'm not sure I agree with all of those accusations entirely. The identitarian and other issues lumped generally under the rubric of "culture wars" are important, in my view, then and now. And, although it is easy and common to assume that when the other side does something, it's a deliberate and cynical ploy, clearly many leaders and foot-soldiers on the conservative side of the culture wars were sincere about foregrounding these issues--although I'm sure there were plenty of political strategists eager to deploy them for more cynical purposes, including demonizing the opposition and getting out the  vote from supporters. (Similarly, although I don't doubt that the modern Democratic Party is very sincere on these issues as well, it's also true that it deployed them in 2012 and the 2014 midterms to satisfy important constituencies, demonize the opposition and reinforce the support of individuals who were more likely to donate and to show up at the polls, and avoid talking more than necessary about foreign policy.) In any event, that the issues are important does not preclude the recognition that they may have overshadowed, indeed dwarfed, other issues that also are important, including economic but also, and crucially, foreign policy issues. 

Nor do I think the news blackout I observed above is the product of some vast left-wing conspiracy. One assumes they focus where and how they do because they are desperate, like everyone else in the media, for readers and revenue, and readers (and hence advertisers) are more interested in culture-war issues than foreign or economic policy. Indeed, although the Times ran Savage's story, it too has shown a decided preference for culture-war over foreign policy issues lately--especially in its online version, where the terror behind its hunt for market share has been all too obvious. There has always been an isolationist, self-interested streak in American culture and politics, one that is little interested in developments overseas, no matter how dire, and it seems pretty strong to me right now, on both the left and the right. In the American mind and media, a single-person shooting somewhere in this country has always been worth at least a foreign famine or epidemic or two. It is also worth noting, in the media context and especially the online media context, that the culture war is much, much less expensive to cover and much easier to opine on freely.     

Perhaps, as this article (from a conservative site, if it matters) argues, part of the reason also has to do with the possibility that "none of these [non-culture-war] developments is part of any kind of normal political debate right now." On this view, Congress is frozen, generally unlikely to act except, at most, to block things; thus, "just about everything that’s actually going to happen in national-level politics is going to be happening by executive fiat, by the president using, or attempting to use, his unilateral power," and "[w]hat doesn’t get done by executive fiat will be done by the courts." If that is so, it suggests that the focus on culture war issues and not economic or foreign policy issues has a structural cause, as well as reflecting the general American indifference to how the executive acts on foreign policy matters and, indeed, foreign policy altogether; it is not simply wholly ideological or partisan. But, of course, that structural concern is an important reason why one should care about Savage's story, regardless of whether one thinks that the patina of law was adequate in this case or that it's a damn good thing that Bin Laden was assassinated and buried at sea. On the evidence of my rough search, people, including many who have cared about such issues in the past, either don't care anymore or have given up trying to do anything about such issues--have given up even bothering to note when relevant stories arise. At the risk of speaking too vehemently, that seems quite unfortunate to me.        


Posted by Paul Horwitz on November 1, 2015 at 10:52 AM in Paul Horwitz | Permalink | Comments (0)

Saturday, October 31, 2015

New From OUP and Greenawalt: "Interpreting the Constitution"

Thanks to Oxford University Press, I received a copy this week of Kent Greenawalt's new book, Interpreting the Constitution. It looks terrific. As OUP's description of the book indicates, it is one in a series of books by Greenawalt on legal interpretation:

This third volume about legal interpretation focuses on the interpretation of a constitution, most specifically that of the United States of America. In what may be unique, it combines a generalized account of various claims and possibilities with an examination of major domains of American constitutional law. This demonstrates convincingly that the book's major themes not only can be supported by individual examples, but are undeniably in accord with the continuing practice of the United States Supreme Court over time, and cannot be dismissed as misguided.

The book's central thesis is that strategies of constitutional interpretation cannot be simple, that judges must take account of multiple factors not systematically reducible to any clear ordering. For any constitution that lasts over centuries and is hard to amend, original understanding cannot be completely determinative. To discern what that is, both how informed readers grasped a provision and what were the enactors' aims matter. Indeed, distinguishing these is usually extremely difficult, and often neither is really discernible. As time passes what modern citizens understand becomes important, diminishing the significance of original understanding. Simple versions of textualist originalism neither reflect what has taken place nor is really supportable.

The focus on specific provisions shows, among other things, the obstacles to discerning original understanding, and why the original sense of proper interpretation should itself carry importance. For applying the Bill of Rights to states, conceptions conceived when the Fourteenth Amendment was adopted should take priority over those in 1791. But practically, for courts, to interpret provisions differently for the federal and state governments would be highly unwise. The scope of various provisions, such as those regarding free speech and cruel and unusual punishment, have expanded hugely since both 1791 and 1865. And questions such as how much deference judges should accord the political branches depend greatly on what provisions and issues are involved. Even with respect to single provisions, such as the Free Speech Clause, interpretive approaches have sensibly varied, greatly depending on the more particular subjects involved. How much deference judges should accord political actors also depends critically on the kind of issue involved.

Students of the Constitution and constitutional interpretation will want to rush out and grab this book. Kent, a mentor and former teacher of mine, recently celebrated his fiftieth year of teaching and has published about seven books and many articles in the past decade, including this terrific forthcoming book on legal exemptions, especially religiously motivated ones. Wow.      

Posted by Paul Horwitz on October 31, 2015 at 03:30 PM in Paul Horwitz | Permalink | Comments (0)

Media-Bashing: Always in Season, But a Strategy of Mixed Effectiveness

This is a particularly timely week to look at media-bashing and to wonder how well it works as a strategy for institutions subjected to unfavorable press coverage. When, as we saw this week, an institution is subjected to negative, critical coverage in the (roughly speaking) conventional/mainstream press, it is quite common for the institution to react by suggesting that the press itself is the problem, not the conduct that was subjected to press scrutiny. Not without reason, of course. The coverage may indeed be inaccurate. It may be slanted, possibly for reasons of some substantive, often political, bias, and even more often because the press tends to favor particular kinds of narrative: populist narratives, such as the big institution sticking it to the little guy; scandal-oriented narratives; and narratives that focus on the negative aspects of a story rather than taking a holistic view of the balance of good and bad, costs and benefits, in the overall story. Anyone who has been the subject of a story knows the frustration not only of specific inaccuracies and a lack of basic expertise on the part of the reporter, but also of the reporter focusing on a "story" or narrative that does not fully reflect reality in all its details and complexities. To be the subject of coverage involves a painful loss of control over one's story. 

That said, criticizing the coverage rather than addressing the "issue" is a common public relations move not just for those reactive reasons, but also as a simple matter of institutional strategy. It can be effective, to varying degrees and in varied ways. 1) Where there are clear problems with the coverage, sometimes the storm of criticism of the press can lead reporters and editors to correct the inaccuracies and do a better job going forward. 2) More generally, media-bashing can get the press to back off, to be more hesitant and timid about covering the issue or institution altogether. If the criticism is harsh enough and catches on, it can make the press more pliant and more willing simply to report whatever the subject wants it to. 3) Media-bashing can change the subject of public discussion, from the institution that's being criticized to the press itself. Making the press the story will draw a strong, positive, angry reaction from fervent supporters of the institution under criticism, as well as from those who dislike the press generally. Especially where the institution that was subjected to negative press coverage would like to take the heat off itself and sweep any genuine problems under the rug, putting the heat on the media can be at least a somewhat effective strategy.

But, aside from any normative problems that people might have with such a strategy, it has its costs. Although the press-bashing strategy will, as I said, appeal to strong supporters of the institution under criticism, many others will have a very different reaction. Where they see some institution that has been the subject of negative press coverage complaining about the coverage, they will, if anything, conclude even more strongly that the negative coverage was well-deserved, that there must be both smoke and fire, and that the institution is using criticism of the press as a way of avoiding dealing with its own genuine problems. This set of reactions and conclusions might be problematic too, but they are inevitable--and history suggests that such conclusions are often justified. The problem with Watergate really was Watergate, not the nattering nabobs of negativism. And, at least sometimes, when the press focuses on a particular narrative that the institution thinks is the wrong one, it's the press that's right, not the institution. It's not unfair for, say, the chief executive of a major pharmaceutical company to say in response to a spate of critical coverage, "Why focus so exclusively on that one drug we made that killed a few children, due to poor testing on our part and an eagerness to rush the drug to market so we could realize huge profits? What about all the effective drugs we market, the huge investment we have made in careful testing procedures, and our distribution of lifesaving drugs in poor countries?" The executive may be right, on balance. Perhaps the press should have done a better job of reporting both the good and the bad. But surely many readers will conclude that, whatever the CEO may think, the negligently produced, greed-motivated drug that killed a bunch of children is the real story.

In sum, attacking the press, instead of focusing on the problem that was the subject of negative press coverage, can be a sound short-term strategy. It can "redirect anger away" from the subject of the story and onto the press. Given the press's imperfections, inaccuracies, and reliance on particular narratives, this criticism is rarely without any justification. But many people will react to the media-bashing by concluding that there must have been something to the critical coverage after all. They will conclude that the criticism of the press is a "cynical ploy to rev up the [criticized institution's] base and to give themselves cover." They will end up distrusting the institution even more than they did before the negative coverage began. And, if the institution really does suffer from a substantive problem, the media-bashing will distract it from dealing with the problem, and instead convince it that instead of reform, all it needs is better PR.

All of this is pretty well-known, of course, and media-bashing is a "time-honored and sometimes well-timed tradition," even if it is often short-sighted and, in the long run, unwise. But this was a good week to remember all these lessons. I will leave it to readers to decide whether all this was brought to mind for me this week by the GOP reaction to the candidates' debate on CNBC, or to the bevy of law professors and deans who took to the webs this week to deplore the New York Times's editorial criticizing law schools* and argue that the legal academy should devote more of its resources to criticizing the press and demanding more positive coverage, or both.  

*I have only read about the editorial; I have not read the editorial itself. My general rule of thumb is that there is rarely any good reason to pay attention to newspaper editorials at all, and I am surprised when anyone does. It sounds as if the editorial was poor, just as it sounds as if CNBC really did do a so-so job at the candidates' debate. As with GOP criticism of CNBC, however, so with the lawprof reaction to the editorial and to press coverage of law schools more generally: the possibility that the press did a poor job does not tell us whether press-bashing is a useful and/or sincere strategy. Nor does it tell us whether there is nothing, or something, to the press's critical coverage. 


Posted by Paul Horwitz on October 31, 2015 at 03:09 PM in Paul Horwitz | Permalink | Comments (0)

Monday, October 26, 2015

Methodological Case Prerequisites and the (Mild, Ironic, but Real) Reproduction of Hierarchy

Michael Dorf and Larry Solum have a very interesting and mutually respectful dialogue on constitutional interpretive methodology, here (Dorf), here (Solum), here (Dorf), and here (Solum). Key to the discussion is a prerequisite offered by Dorf and labeled by Solum as a species of "Canonical Cases" objection to originalism. In Dorf's most recent words:

[T]here is something wrong with an argument that is sometimes offered to rescue those brands of originalism that produce the "wrong" results in sacrosanct cases like Brown v. Board. The argument asserts that this is not a worry because originalism is compatible with stare decisis, which preserves Brown. As I explained, that argument misconceives the problem, which is that the rightness of Brown and perhaps a few other cases are settled intuitions. It is not sufficient that an originalist judge would not overturn Brown. Any acceptable approach to constitutional interpretation (or construction) must say that Brown was rightly decided.

This reminds me of a classic line that can be found in various constitutional law articles (a good overview is provided in Laura Kalman's great book The Strange Career of Legal Liberalism. The line runs roughly as follows, in the words of one of my articles: "Admission to polite legal circles requires one to avow that Brown was wholly correct and Lochner terribly wrong." It's been around for some time but is nicely presented, quoting Cass Sunstein, in Balkin and Levinson's fun article on The Canons of Constitutional Law

A third reason for increasing interest in the composition of the constitutional canon in particular has to do with the perceived threat to the beloved precedents of the beloved Warren Court . . . . For example, Cass Sunstein, a well-known liberal constitutional theorist, has insisted that “an approach to constitutional interpretation is unacceptable if it entails the incorrectness of Brown v. Board of Education.” This is more than a claim that Brown must be taught to law students . . . . Rather, Sunstein is arguing that Brown is normatively canonical. One can no more criticize it than one can suggest that Mozart is a wildly overrated composer of music for eighteenth-century dinner parties. One establishes oneself as a cultured person by affirming Mozart's genius; one establishes oneself as a properly acculturated lawyer by affirming Brown's correctness.

I suppose it bears saying that I approve of the decision in Brown. And I can see some sense in an approach that treats canonical cases as a prerequisite. But I frankly worry about using the canonical case approach as a prerequisite in discussions of constitutional methodology, or of much else--even when the canonical case is the sainted Brown. Partly it is that I worry about starting with the canonical approach. Substantially, I wonder whether one should talk about it being necessary for a judge in particular to say, in reasoned-elaboration fashion, that Brown was "rightly decided." I could more easily sign on to a prerequisite that said that constitutional methodology, or even the general legitimacy of the Constitution, must allow or even ensure that the outcome in Brown happens, but I'm less sure that this means it must happen through judicial review. Someone must interpret the Constitution to allow for Brown, but it might be some other official or it might be the people themselves, and the role of the Constitution itself might or might not be fairly minimal and post-hoc.

I also worry about those possible "few other cases." Brown alone, or Brown and Lochner? Brown and Lochner only, or those two plus Roe and/or Casey? Just them, or them plus most of the Warren Court's canonical cases? A case here and a case there, and you've got some real money, so to speak. These kinds of approaches end up doing a lot of rhetorical heavy lifting that I doubt helps us think afresh, and that really try to stall or freeze the game at a particular point in time or in a particular way. Although individual treatments vary in their skill and persuasiveness, I think this kind of rhetorical/political game figures a lot in current discussions of Lochner and various so-called "new Lochners" or "new Lochnerism." The phrase purports to be descriptive but is equally (or more?) prescriptive and preclusive, using social embarrassment as a lever.    

In a broader sense, though, I worry that this kind of thing, which I think still accurately characterizes the general sentiment of the gatekeepers of the legal academy, is less about constitutional methodology and more about the gatekeeping itself. A substantial part of my project in teaching constitutional law to students is to teach them the kinds of methods and arguments that won't get them laughed out of constitutional courts. Learning the modalities of constitutional argumentation is not much of a barrier to presenting all kinds of positions and views or pursuing all kinds of political projects, but it does require them to be translated into the kinds of moves that courts will accept as legitimate legal argumentation. The students learn how to get in the game and stay there. But while I'm happy to teach them something about what polite society demands of them, I don't want to preclude their rejection of polite society, or their individual interests in pushing the boundaries of what constitutes a polite society.

Although overwhelmingly politically liberal, the legal academy is also highly conservative and anti-radical. Indeed, while I find a lot to appreciate in the project of blogs like the Heterodox Academy, I worry that these discussions are too much about making sure that the academy makes enough room for doctrinaire conservatives, or doctrinaire conservatives and doctrinaire libertarians, alongside doctrinaire liberals, and not enough about really widening the scope of our discussions. In the legal academy in particular, I worry that we don't make enough room for, let alone positively encourage, people whose views or approaches or priors are more genuinely radical. I wonder what conversations and possibilities we miss as a result.

On those occasions when radicals slip through, we get some very interesting discussions. They can even include second thoughts about Brown itself, viz. Derrick Bell's thought-provoking "dissent" in Brown. To use Robert Cover's phrase, they can be interestingly and valuably jurisgenerative and not jurispathic. Polite society might fear those imagined legal worlds, but in a highly conservative academic field within a highly conservative profession, polite society will still get plenty of innings, and might occasionally end up learning from the radicals or altering its own views. Moreover, starting with this conservative bent can blind us to the degree to which certain debates about fundamental values are necessarily going to recur and, in new ways and contexts, become new sites of contestation (sorry) about those values. Those contests are social and political, not doctrinal, and legal academics (or even, to a lesser extent, judges) cannot really, or indefinitely, erect doctrine as a barrier to that kind of contestation.

Consider the debate over what was "off the wall" or "on the wall" in the first major round of Affordable Care Act litigation. It may be that the legal academy's conservatism, and its investment of its energy in maintaining the barriers of "polite society," led it to a massive failure to predict the viability of this litigation and some of the ideas presented there. More likely, I think, is that what was going on, when various legal academics treated it as self-evident that some line of argument would be rejected as "off the wall," was rhetorical, political, and performative--an effort to ensure, by declaring implicitly, that certain ideas were unacceptable. Saying "Decent people eat with forks" is not just a descriptive statement: it's performative as well, a way of enforcing social norms--against, say, people who eat (perfectly politely) with chopsticks, simply by declaring those norms with assurance and shaming the norm-violator. The same phenomenon is going on in law and religion right now, with such (silly) rhetorical moves as the placement of "'religious liberty'" in scare-quotes as a way of declaring that certain ideas about what "religious liberty" means are simply not accepted by decent people.  

We can and should recognize the many ways in which the legal academy presents, reinforces, and reproduces hierarchy. I tend to think we should resist it, but at a minimum we can try to spot and acknowledge it, and thus reveal to ourselves the ways in which we enact and enforce our own fundamental conservatism. Whatever we think of those cases, let alone their outcomes, we should see the standard "Brown good, Lochner bad" truism as one of those ways. Mild in itself, it bespeaks a larger conservatism about ideas and priors. It is also routinely, easily, and silently extended to a wider range of "polite" views and norms and an effort to reject contestation, even when the contestation is real, unavoidable, and rages outside the university gates. Especially as academics, we should welcome more than we do what Balkin and Levinson call the "perpetual state of intellectual tension" that comes from rejecting such canon-centered approaches. We should acknowledge that contestation--not about racial equality or the evils of segregation, surely, although Bell and others make clear that more can be said about this--about fundamental values is always ongoing; it cannot be resisted by stating formulae, and it should not be resisted by subtle gatekeeping, or by attempting to keep constitutional radicals outside the gates. All this is, of course, pretty far afield from Solum and Dorf's core discussion. It's also probably impolitic for me to say any of this, since I have the usual personal ambitions within our polite academic society. So be it.        


Posted by Paul Horwitz on October 26, 2015 at 09:02 AM in Paul Horwitz | Permalink | Comments (0)

Saturday, October 24, 2015

"Thank You for That [Awful] Question"

I am mostly out of the business of giving blog advice for teaching job hopefuls, largely because I've repeated my advice too many times and it's all archived. It can be summarized easily enough: (a) Everyone should read Martha Nussbaum's "Cooking for a Job" article, hopefully with concern rather than as a "how-to"; (b) although it makes sense to direct advice at hiring candidates, hiring faculties are both the least-cost-avoiders and the ones with a greater moral obligation to do it right, so (a) applies especially to them. But I did want to comment on something said in response to Rhett's post. One of the virtues of both tenure and a long stint on a blog is that you can get away with adding a little sour to the sweet, like putting a lemon wedge on a glass of iced tea. I'm not sure this counts as advice, exactly, especially because the faculty members most in need of hearing it are perhaps the least likely to take it. Call it, rather, an observation about what has in my experience become a pretty strong norm at most schools not just at job-talks but in workshops and talks of all sorts, and one I think we need to ease back on.

On Rhett's post, a commenter identifying as "AnonHiringChair" writes:

I would also add a reminder that, during questioning, you always make the person asking the question feel good about herself. I've seen many times when a member of my faculty asks a less-than-great question and the candidate's response makes clear to everyone in the room that it was a less-than-great question. Fast forward to voting and the faculty member in question frequently finds another reason to argue against the candidate. Bottom line: When you make the person asking the question feel bad about herself, it will redound to your detriment (and conversely, when you can make the person asking the question feel good about herself, it will redound to your benefit).

Of course this is perfectly sensible advice for job candidates, and my experience over the last few years suggests that it's been drummed into many candidates, especially those coming out of fellowships. Like many such norms, however, it is not used just by job candidates; many speakers have a frequent habit of identifying many, most, or even all questions they receive as "good" questions.

I am certainly not complaining about civility at job-talks and workshops. But like most such sensible advice, I wonder if this one hasn't been applied too much and too mechanically. I have nothing against "bad" or dumb questions as such, as should be clear from my own long record of dumb questions on such occasions. Self-serving (and self-citing), irrelevant, or pointless questions, yes; we should avoid those. But, as with journalists,  it's more important for academic questioners to engage and clarify than to worry about looking smart. Still, since we all know that there is such a thing as a bad or dumb question, and that they make frequent appearances at job-talks and workshops, I wonder whether there aren't better ways to be civil and respectful than to respond promiscuously or automatically with "That's a great question" every time a question is asked. When I ask or am asked a dumb question, I am perfectly happy to give and receive the words "Thank you for the question." In particular, when I ask a dumb question, I think it's not unreasonable to expect courtesy in return, but I definitely don't expect (or want, really) flattery. "That's a good question" risks becoming both excess verbiage and a mere tic. In a sense it may reveal a problem with a good deal of both academic and civic discourse: not enough plain civility, and too much flattery and mutual back-patting, as if people have forgotten that it is quite possible to be polite in a clear and economical fashion without also concerning oneself with the feelings and ego of one's interlocutor. Our society worries too much about feelings and not enough about common courtesy. 

There is, of course, an added concern about being too quick to call something a good question. As complaint department staff have long known, it is possible for a polite statement, properly delivered, to mean its exact opposite. The more glaringly dumb or irrelevant a question is, the more likely it is that the statement "That's a good question" will be heard by everyone in the room, with the possible exception of the questioner, as conveying the statement "What in God's name were you thinking when you asked that?" This is another virtue of simple but non-substantive civility: "Thank you" need not be taken as rendering a judgment on the question, and thus mostly avoids the problem of irony. (I actually think the legal academy needs much more irony, but that's a subject for another time.) 

And one more problem: I have found, and not infrequently, that "That's a good question" is sometimes followed by an answer that avoids or evades the question rather than make a good-faith effort to answer it. One quite understands the impulse when the question is genuinely irrelevant, although there are more or less effective ways to pivot from such a question. But occasionally the question actually is good, and when a questioner has both identified a question as "good," however perfunctorily, and then not answered it, the exchange is usually underlined for me as especially dissatisfying. That's one more reason that "Thank you" is such a useful phrase. Indeed, it should be possible to be civil, but also to civilly explain how and why a particular question is, in fact, off-base or irrelevant or outside the scope or what have you, or conversely to acknowledge in a polite and responsive rather than defensive fashion that the question is good and requires more thought. 

None of this negates the general usefulness of the commenter's advice, especially since, as I observed up front, those faculty who most expect flattery from a speaker are least likely to be satisfied with anything less. But these are the kinds of general norms that all of us who sit through or deliver endless talks should think about at least a little, and like all such norms they require some individual pushes in the right direction. In particular, I don't mean to place the burden on job-talkers; I notice it when a job-talker is too free with flattery, but I don't hold it against him or her.

But there are others who perhaps need the advice to emphasize and expect civility rather than flattery, not to evade questions labeled as "good," and, as a general rule, to avoid calling bad questions good. Habits of this sort, first adopted when one is a supplicant, end up becoming part of one's repertoire even when one is "just" a workshop speaker, with no job riding on the outcome of the talk, and end up being assumed or expected by faculty audiences as well. The legal academy and perhaps most academic fields may well need more civility, but not more flattery. Ideally, workshop speakers who are not job supplicants, and who indeed are already tenured and rooted somewhere, could certainly afford to ease up on this tic. Faculty audiences should train themselves not to expect or encourage it. And advisors to job candidates, especially those who send large numbers of fellows and such out into the world, should certainly carefully consider the costs and benefits of the advice they give, and remind their charges that this advice, like all advice, should be used sparingly and with care rather than heaped upon every question, no matter how bad it actually and obviously is.          


Posted by Paul Horwitz on October 24, 2015 at 11:45 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, October 21, 2015

An Important New Fact, or a Report on the Coal Industry From the Newcastle Boosters League?

I admire what I have read of the work of Jean Cohen, a Columbia political scientist--particularly her Regulating Intimacy: A New Legal Paradigm, which discusses and uses "reflexive law" as a means, in the words of the book's jacket copy, to approach debates over "the regulation of intimate relationships" in a way that is "free from the liberal and welfarist paradigms that usually structure our legal thought. This new legal paradigm finally allows us to dissolve the tensions among autonomy, equality, and community that have beset us." It is always useful to escape from the standard prisons of our thought and to think perpendicular to and across the usual and tedious left-right divisions that channel and stymie so much intellectual work in the United States.

I am thus struck by the abstracts to two new papers by Prof. Cohen. I look forward to reading the papers, which are on subjects of great interest to me. But I am surprised by what she chooses to foreground in those abstracts. Here is one:

This article focuses on an expansive conception of religious freedom propagated by a vocal group of American legal scholars – jurisdictional pluralists – often working with well-funded conservative foundations and influencing accommodation decisions throughout the US. I show that the proliferation of ‘accommodation’ claims in the name of church autonomy and religious conscience entailing exemption from civil regulation and anti-discrimination laws required by justice have a deep structure that has little to do with fairness or inclusion or liberal pluralism. Instead they are tantamount to sovereignty claims, involving powers and immunities for the religious, implicitly referring to another, higher law and sovereign than the constitution or the people. The twenty-first century version of older pluralist ‘freedom of religion’ discourses also rejects the comprehensive jurisdiction and scope of public, civil law – this time challenging the ‘monistic sovereignty’ of the democratic constitutional state. I argue that the jurisdictional pluralist approach to religious freedom challenges liberal democratic constitutionalism at its core and should be resisted wherever it arises. 

I think the subject is important and worthwhile. But I am struck by the description of American legal scholars "often working with well-funded conservative foundations and influencing accommodation decisions throughout the US." The other abstract repeats this language almost verbatim, adding the additional description "well-funded conservative foundations like the Beckett Fund for Religious Liberty." Evidently this information was important enough both to place in the abstract and to repeat in both papers.

On the whole, I don't mind and rather favor descriptions of the ways in which legal academics often work hand in glove with well-funded advocacy and/or ideologically charged organizations. Many legal academics, in my view, are not "academic" enough; although I'm something of an institutional pluralist about this and believe that there is room for several models of what the academic or legal academic role involves, including a more normative, goal-oriented, advocacy-oriented model, my first allegiance is to the traditional, Fishian model of "academicizing" the issues one addresses and remaining relatively indifferent to whether one is aiding and comforting the "left" or the "right" in its current struggles. 

And there is one respect in which the information in Cohen's abstract might be taken as informative. Neither pluralism, nor jurisdictional pluralism, nor religious accommodationism, are inherently politically conservative activities. Rather, positions of this sort, or contrary positions, tend to tack back and forth across "sides," depending on the issues and context of the day, but sometimes emerge as issues and strategies dear to one side, and take root long enough to affect and alter the surrounding views of that side for a time. So it can be interesting, descriptively and for purposes of sociology and intellectual history, to note when that has happened. Similarly, it can be interesting to note the ways in which strong religious accommodationism has shifted from a mainstream liberal position--the Court's decision in Employment Division v. Smith was, at the time, labeled the most "illiberal" decision of its Term in the Harvard Law Review--to one that is viewed negatively, sometimes outright critically, and even as requiring  the strategic use of ironic single quotes to propagandize the view that it has nothing to do with "'religious liberty.'" In recent times, one can witness both that shift, and the way in which it propagates across and between well-heeled liberal advocacy groups and their intellectual water-carriers, with effects on the distribution of funds, the position of groups, and the center of gravity of liberal legal scholarship in that field. 

Still, to foreground the (too-frequent?) hand-in-glove relationship between issue-based or ideological advocacy groups and legal scholars seems like something everyone knows about all too well. Is it worth that placement in an abstract, in a way that suggests that the information is unknown or novel and important?  Does doing so, and in the language used by Cohen, not carry with it a kind of unwarranted suggestiveness, as if one is revealing something secret and shameful? And is the description and its sotto-voce suggestiveness only partly accurate, thus rendering some of that suggestiveness positively misleading? I have advocated some measure of what Cohen calls jurisdictional pluralism in this area, but I have not worked with the Becket Fund (I interviewed there once long ago, when liberals were allowed to be seen in its presence, but chose not to work there) and do not broadly share the political or substantive goals of "well-funded conservative foundations." Conversely, some individuals whose liberal credentials are at least as good as Cohen's have also worked with the Becket Fund, even if some have taken to misdescribing the political and substantive views of those individuals.

And to do so in what comes off as a one-sided fashion is particularly misleading and unfortunate, lending the air that one group is engaged in some kind of covert and intellectually suborning conspiracy while the other simply involves a happy and fortuitous coherence of positions. Moreover, it is not a little ironic coming from a scholar at Columbia--my alma mater, and one I am perfectly proud to be associated with. The Becket Fund's 2012 financial snapshot shows contributions just under $5 million and assets under $2 million. In the following year, the Center for Reproductive Rights showed contributions of over $17 million and assets of almost $36.5 million. Among its good works is the joint Center for Reproductive Rights-Columbia Law School Fellowship, associated with Columbia's Center for Gender & Sexuality Law. This is not a condemnation. I presented my paper on Hobby Lobby at Columbia and faced many good and fair questions from the faculty there, including several fellows and/or faculty associated with the center; I was grateful and enjoyed meeting everyone. Its fellows do good work there and have gone on to do more good work. But it makes the unidirectional nature of the language in Cohen's abstract all the more odd.

Writing descriptively about alliances between advocacy groups and legal academics is not a bad thing. Neither is trying to tease out its implications for intellectual work by those academics and, perhaps, worrying about, or at least debating, whether legal academics are rather more affected by the "legal" part of their job description than the "academic" part. The actual work produced can, of course, still be judged by its own merit, and one hopes that at least some of that work will cut in interesting ways across the same old tired divides. But surely everyone recognizes that in the nature of things, given the generally liberal political priors of most legal academics, there will be countless examples on the liberal-left side of the same phenomena put forward by Cohen, with the same general implication of coordination and/or a potential influencing or distorting effect on independent legal scholarship. Maybe Cohen did not foreground those alliances in her abstract because everyone already acknowledges their existence, importance, and strategic and intellectual effect, so much so as to take this all for granted. But the one-sided focus still seems odd to me.    



Posted by Paul Horwitz on October 21, 2015 at 10:14 AM in Paul Horwitz | Permalink | Comments (0)

Monday, October 12, 2015


New from Cambridge University Press and newly arrived on my desk is Religion and the State in American Law, by the late Boris Bittker, Scott Idleman, and Frank Ravitch. (Individual chapters were also contributed by Jennifer Ann Drobac and Jill Wesley, Angela Carmella, and Cynthia Lee Starnes.) Here is the CUP page for the book. I have unfortunately been unable to post much for the past few months, but it's well worth making the extra effort to bring attention to this book. It seeks to provide, as the book jacket says, "a comprehensive and up-to-date overview of religion and government in the United States, from historical origins to modern laws and rulings." The topics are broad, extending well past the standard narrow treatment of cases dominated by the Religion Clauses to include contracts, torts, family law, and a number of other areas; and the coverage is similarly catholic, ranging deep into the lower court caselaw. It is truly an impressive book and a fascinating and useful treatise. I'm not sure what the authors' or the press's update plans are, but I hope they will keep the enterprise going at least a little bit. It is also remarkably well-priced at some $37 on Amazon and $45 list--highly unusual for a book of this kind.

If I were to recommend a very short list of essential books on religion and American law, I would first recommend my books and then, after an awkward silence, more honestly and accurately would recommend this book, along with Kent Greenawalt's two-volume Religion and the Constitution and perhaps this book on religious organizations in the United States. It looks great and I congratulate the authors on their achievement.

Posted by Paul Horwitz on October 12, 2015 at 04:40 PM in Paul Horwitz | Permalink | Comments (0)

Saturday, September 05, 2015

Social Movements: The Platinum Card of Social Change

At Balkinization, Mark Graber offers what he calls "a different take on Kim Davis." (And thank goodness. I cannot say that the stories and FB posts that have made their way into my media feed have been especially illuminating.) His short take: "Put more broadly and more polemically, the fuss over Kim Davis demonstrates that the Constitution of the United States remains an effective means of combatting governmental policies that inflict stigmatic harm on members of the upper-classes, but a far less effective means of combatting government policies that inflict material deprivation on the lower classes."

Of course this seems true to me. I would add three caveats and one more point that seems to me to be a natural next step to his argument. It is certainly fair to say that marriage is hardly limited to the upper classes, but he is right that it is generally essential that the stigmatic harms also be suffered by the upper classes to gain traction. It is also fair to say, and some advocates for concentrating on same-sex marriage argued along the way, that the SSM movement has or will realize many indirect benefits for gays and lesbians--call them "trickle-down" benefits. But, aside from how one feels about trickle-down arguments, Graber's observation still holds even if this is true: it still involves focusing first and foremost on a harm shared by the upper classes and an issue that interests them.

Finally and probably most important by way of reservations, one might argue that the problem with Graber's statement is its focus on the Constitution rather than the law in general. On this view, the Constitution has a lot to say about individual rights of this sort and very little about economic rights. One might even believe this argument to be true in some objective sense, insofar as one believes there is a clear constitutional text that reflects itself in the rulings of the courts. But I don't find this argument especially convincing. Twenty years ago it was not clear at all that the Constitution spoke to the state's role in marriage itself, although it was quite arguable, in the interval between Romer and Lawrence, that it spoke to how the law penalized personal conduct related to sexual orientation. It was not much more or less clear at this point that the Constitution guaranteed a right to same-sex marriage than it was forty or fifty years ago that the Constitution would not soon be read to guarantee economic rights for the poor. There were surely class-based, or class-relevant, reasons why the Constitution ultimately yielded few results for that movement, and considerable results for the same-sex marriage movement.

The "next step" point is this. Once we reach Gruber's conclusion about the Constitution as a mechanism for social change, we ought to consider what this says about the social movements that have been a part of this story as well, and that are always relevant to legal and constitutional change. In my crowd, the tendency to idolize judges is an on-again, off-again thing, and the notion that judges mostly end up giving traction to legal cases that benefit the upper classes would hardly be shocking. But they do tend to have a more on-again, on-again affection for social movements, and even to treat them--or at least those movements they support--as genuinely popular in nature. And yet it seems to me that Graber's statement would still be largely true if it were extended beyond the Constitution and the courts, to say that social movements are a relatively effective means of serving the social interests of the upper classes, and a relatively ineffective means of serving the material interests of the lower classes.

Two small points about this. First, one might question whether the current prominence of the Black Lives Matter movement serves as a counter-example. I doubt it. For one thing, it's too early to know how successful the movement will be. For another, it's possible that the movement's greatest tangible reforms will end up being directed toward stigmatic harms shared by African-Americans of all socio-economic levels and not material harms suffered by the poorest in the community. Finally, and I suspect this is true of most or all social movements, at the end one would want to know how much of the actual payout resulting from the movement and whatever reforms it achieves is siphoned off, cy-pres fashion, by more affluent sectors--giving rise to more jobs by professional consultants, for instance, or resulting in foundation grants to think tanks and most certainly to universities and their many institutes. Second, and as usual, the general point carries across ideological lines. Even if one believes the Tea Party movement was at some point a genuine popular movement among less affluent right-wing Republicans, it is certainly true that its financial benefits were enjoyed largely by people whose first or second homes are clustered within ten miles around the Capitol building.

Posted by Paul Horwitz on September 5, 2015 at 05:52 PM in Paul Horwitz | Permalink | Comments (0)

Wednesday, August 26, 2015

Possible Reasons for Ambivalence to a Large Increase in AALS Dues for "Public Outreach"

On Monday Professor Michael Simkovic proposed a substantial redistribution of AALS resources to "public outreach efforts" aimed at better "explaining [legal education's] value to the press and the public," including such things as feeding individual journalists with "personally tailored content that each journalist is particularly likely to find relevant and interesting based on [his or her] past coverage and the stories they are currently researching." He also proposed that such "efforts could be funded by a 50% to 100% increase in annual [AALS] dues (roughly $5,000 to $10,000 for the smallest law schools and $15,000 to $30,000 for the largest) for the next 3 years."

Someone else will have to speak to how likely the latter proposal is to actually occur. I would have thought "not very," but I could be wrong and I don't have any special information about this. I wish the post had provided some evaluation of the proposal's likelihood of moving forward, since it might be inefficient for me to allocate my time to pondering the issue if it has little chance of happening. But perhaps no basis for an estimate is available.

My assumption based on general experience is that, at least in terms of the legal blogosphere, views of such a proposal will be heavily and perhaps excessively influenced by one's priors concerning law schools and the costs, benefits, and value of legal education. But I suspect that many law professors might be ambivalent about or opposed to such a proposal, even if they share (or are agnostic about) Simkovic's conclusions about those issues. 

Here are a few reasons why, even if they agree generally with Simkovic's other arguments about legal education, they might nevertheless hesitate to support his latest proposal or even oppose it. I have made an effort throughout to impose an important constraint on this post: I have avoided any reasons that require one to take issue with Simkovic's prior conclusions about the benefits of legal education and the state of the legal/legal education economy. I will relax that constraint a little at the end of the post, and we will see that once we do so, professors may have many other reasons to disagree with the proposal to have the AALS launch an expanded "public outreach program." That is true even if they agree with the basics of his conclusions elsewhere but take issue with particular aspects of his argument and its implications. At least initially, however, I want to remove the possibility (given what I see in the legal blogosphere, the certainty) of motivated reasoning based on readers' thoughts about whether legal education is worth it for prospective law students. The list follows after the jump.      

  • Simkovic argues that the AALS is a suitable body to carry out the "public outreach" effort, and to receive the extra funds to support it, because the AALS is "the closest thing in the law school world" to a "trade association." Some law professors might reach a different conclusion. They might believe that the analogy is mistake: The AALS is or should be a learned society, not a trade association. They might further believe that the proper role of a learned society is inconsistent with the more aggressive lobbying and image improvement (or laundering) efforts that a trade association might undertake.
  • Relaxing the last point a little, some professors might believe that even a learned society can disseminate information about its branch of the academy, or about the related profession it serves, as well as serving as a more intellectual and disciplinary forum. Moreover, they might believe that a public outreach effort that consists of correcting errors in stories and suggesting true and meaningful new stories is consistent with the AALS's role. But they might believe that a much-expanded PR staff would not act in anything like that modest and restrained fashion. They might be concerned that eventually and inevitably--and perhaps even right off the bat--the PR staff would view its job as offering uniformly sunny stories, reflexively criticizing or soft-soaping any negative stories about legal education, attempting to convince reporters that minor errors in negative stories are more egregious than they are while minimizing or waving away errors in positive stories, and so on--doing, in short, what PR professionals often do. They might even fear that in some cases the PR staff would end up propagating messages that are false or misleading--in a general sense, and against a background of academic allegiance to truth-seeking values, if not as a technical legal matter. They might believe that any such tendencies, or indeed the mere risk of such conduct occurring, is inconsistent with the values that a learned society should exemplify. In short, they might worry that even if an outreach project started modestly and carefully, it could end up as an aggressive sales job or an act of whitewashing, in a way that would depart from or corrupt the AALS's proper role as a learned society.
  • Some professors might simply dislike the AALS. That's not me, I should add; I am a member of some administrative committees, have served as an officer of various sections, and despite some reservations I generally think well of the annual meeting (although I wish it were held elsewhere). But clearly my view is not shared universally within the legal academy. One regularly hears very negative views of the AALS expressed by law professors--and that's just the ones who actually attend the annual meeting. One assumes that many such professors would hardly welcome assigning an enhanced role to the AALS or significantly increasing dues to that group, even temporarily. Some of them may think, specifically, that the AALS is not sufficiently competent, or competent in this area, to justify the significant increase in fees. (I am describing the potential, and indeed likely, view of others, not my views.) 
  • Some professors might simply distrust the AALS. Distrust is different from dislike or hostility. Even a professed admirer of the AALS, its mission, and its history and accomplishments might nonetheless be distrustful of a proposal to increase annual dues by 50 to 100 percent. Simkovic proposes that this be a short-term increase, but they might fear that the increase would be extended or slide into a permanent one. Simkovic notes in his post the likelihood of collective action problems for law schools. Similarly, some law professors might fear agency problems with his proposal. They might fear that some of the funds would end up going to other uses, being used to favor particular schools or messages, being used to give undue positive publicity to the AALS itself and thus enhance its own position, and so on. Leaving aside those kinds of concerns, they might, as I noted above, distrust that the AALS would run its public outreach program in a modest way, or fear that it would end up "messaging" in a false or misleading positive direction in a way that,in their view, would or should be inconsistent with the integrity of a learned society. In addition, while the AALS staff is fairly stable, its top leadership changes regularly, and they might be unwilling to support increased dues for such a program given that fact and their fear that a future AALS head might be less trustworthy than the current leadership.   
  • Some professors might have problems with efforts undertaken to provide positive outreach on behalf of the AALS as a whole. They might be concerned or convinced that some law schools should not exist or do not properly serve the interests of their students, and thus prefer not to double the dues paid to the AALS so that such schools can receive 1/200th of the benefit of positive publicity that they do not deserve. Those professors may believe, at least as a moral matter, that there are limits to the phrase "we're all in this together."

As I noted at the start, these possible reasons do not require anyone to disagree with Simkovic's prior conclusions about legal education, or indeed with most of what he says in his post on Tuesday. We can thus, I hope, see that people might well question or oppose his proposal without being motivated, knowingly or not, by hostility to his conclusions on that subject. But there is a middle case too. It is possible that some of his readers share his general conclusions about the value of legal education but disagree or quibble with specific details of those conclusions, or of the conclusions he reaches over the course of Monday's post itself. That is hardly an outrageous or law-school-hostile position to be in. For those professors, there would be further possible concerns:

  • Without questioning his general conclusions or even the general proposal, they might be skeptical about some of his conclusions, and thus about whether the proposed outreach program would be worth the significant increase in dues. They might, for instance, wonder whether it is clearly or demonstrably true that "newspapers will on average have cost each prospective law students tens of thousands, or even hundreds of thousands of dollars. The total economic harm across all prospective law students could easily be in the low billions of dollars." Or they might doubt the suggestion (as I read it) in Simkovic's posts that critics of legal education were effective or successful in driving down law school enrollments. (Those groups may have claimed otherwise, but as he notes, they are potentially self-interested too, and claims on their own behalf may be disbelieved or taken with a grain of salt.) By the same token, they might doubt the likelihood that an AALS public relations program would be all that effective. Or they might conclude that those deans and others who spoke out on behalf of legal education--even if some of them were questionable standard-bearers and not all the criticism and public notoriety some of them faced was mere "retaliation" or lightning-roditude--did not get much of a positive result for their efforts. Any or all of this might lead them to conclude that an expanded AALS effort is not demonstrably necessary, that it is likely to be ineffective, or if effective is not sufficiently likely to be effective enough to justify a substantial increase in AALS dues.
  • Professors might share Simkovic's general conclusions but believe that the costs and benefits of a legal education are not distributed in an equal fashion across the board. They might believe as a normative matter that their primary responsibility is to ensure that those prospective students who might suffer harms as a result of choosing to attend law school are discouraged from doing so, and that encouraging attendance by those students who might benefit over the long term from law school to attend is only a secondary duty. Similarly, even if they believe that some or many students might benefit financially from law school over the long run despite working at jobs other than as practicing lawyers ("JD advantage" jobs, etc.) and that there is nothing wrong with an individual's "choosing" to do such work rather than practicing law, they might believe that the legal academy's primary responsibility is to the legal profession. As a result, they might hesitate to support an expanded public outreach program that would spend some or much of its time pointing to the financial benefits accruing to students who do not become practicing lawyers, or to support a PR program that would not make an adequate effort to moderate its message or name those schools or circumstances, if any, in which a student might be worse off as a result of choosing to attend law school.  

More broadly, and in conclusion, is a point that has been at least implicit throughout this post. Regardless of whether one agrees with Simkovic's general conclusions about legal education or not, or agrees with it in large measure but not entirely, or agrees or disagrees with his reasoning in Monday's post about the logic of and need for a public outreach program and major increase in AALS dues, many professors' conclusions--I would think all professors' conclusions--will not turn on the data or logical reasoning from those data alone. (In any event, they might believe that while some of the logical reasoning is solid, other aspects of that reasoning involve too much overconfident speculation from too little data--for instance, speculation about the dollar cost of "bad" newspaper stories.) Much will turn on their normative views. And some--or many--law professors may have normative reasons to be concerned about such a proposal, or to oppose it outright. Whether such a program is a good idea turns in large part on what thinks about the role and responsibility of law professors; the role and responsibility of legal education (to train lawyers? to train anyone who wants a law degree no matter what they do with it? to teach the law for its own sake regardless of employment outcomes?); the role and function of the AALS; how to weigh long-term financial gains against short-term joblessness or positive aggregate outcomes against particular negative outcomes; whether the US needs more lawyers or not and, perhaps more important, whether too great a number of law students may involve admitting too many students who should not be turned loose on clients at all; the morality of public relations generally or of particular kinds of public relations techniques; the morality of "quick-response teams" and the moral risks involved in introducing a David Brock mentality into the heart of our learned society; the possible tension between PR operations and the more straitened academic virtue of truth-seeking and of candor and integrity in addressing disputed public matters; and so on.


Posted by Paul Horwitz on August 26, 2015 at 11:41 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, August 19, 2015

Some Law and Religion Book Recommendations

As promised, and despite the slight detour. I'll start with a few. For the most part, these are descriptions, relying heavily on the usual sources (introductions, jacket copy, etc.), not reviews, although I'll have occasional observations. Nor, of course, should I be taken to agree with all these books' premises and arguments.   

The first is one I'm delighted to commend to all readers. It doesn't meet all the criteria I mentioned that lead to the risk of neglect, and I very much hope it will be widely read and discussed. The book comes from Kathleen Brady, a fellow at Emory's Center for the Study of Law and Religion and a wonderful friend to many in the law and religion community. Her new book, The Distinctiveness of Religion in American Law: Rethinking Religion Clause Jurisprudence, has been some time in the making, and I have been anticipating it with enthusiasm and impatience. It is well worth the wait, and has benefited from the extra time by being able to include recent developments, including extensive discussion of the Hobby Lobby decision. As Brady observes, the past two decades or so have seen "[t]he rapid ascent of equality as a central norm in religion clause jurisprudence." "In this view, the central value served by the religion clauses is equality, not only among different religious denominations, ... but also and most significantly between religion and nonreligion." She continues, "[W]e have been unable to move beyond our preoccupation with equality because we have been unable to articulate a convincing account of why religion should be treated differently than nonreligion under the First Amendment." That is the project of her book: "to provide a convincing account of religion's distinctiveness" and examine its implications for Religion Clause jurisprudence. I look forward to reading the whole thing and hope many others will take a look.

Recent events are also at the center of another new-ish book, The Crisis of Religious Liberty: Reflections from Law, History, and Catholic Social Thought, released in late December. Edited by Stephen M. Krason, it comprises a series of essays reflecting on "significant challenges to the freedom of religious conscience and expression in the United States today." The chapters "explore the nature and basis of religious freedom in terms of Catholic social thought"; I found particularly interesting Gerard Bradley's discussion of Dignitatis Humanae, Vatican II's Declaration on Religious Liberty, which marks its half-century anniversary this year. Other contributors include Robert George, Randy Lee, Robert Destro, and Kenneth Grasso. Not that it matters, but despite my great affinity for Catholic legal scholars, this doesn't happen to be my tradition or, in the case of many arguments in the book, my own perspective. (Nor, of course, would every Catholic agree with everything here.) But so what? I found much of the discussion interesting, enlightening, informative, and provocative, and given the sweeping claims that are often made about Catholic doctrine and/or authority elsewhere, it's good to turn to these thoughtful CST-centered accounts. Agree with it or not, this book has received too little attention. It deserves more.

I mentioned the 50th anniversary of the Declaration of Religious Liberty, which will be the subject of much discussion this year, if for no other reason than that it offers a dignity-centered account of religious liberty and dignity talk is all the rage these days. Those interested in the topic might want to turn to a new book written and edited by David L. Schindler and Nicholas J. Healy Jr., Freedom, Truth, and Human Dignity: The Second Vatican Council's Declaration on Religious Freedom: A New Translation, Redaction History, and Interpretation of Dignitatis Humanae. I suppose I can't describe its contents any more succinctly than that second subtitle. In addition to the official text, in side-by-side Latin and English and a lengthy appendix providing the conciliar interventions of Karol Wojtyla, later Pope John Paul II, the book also features an extensive interpretive essay by Schindler on the Declaration and the right to religious freedom.

Finally for now, I was intrigued the other day to discover a new collection titled Religion as a Category of Governance and Sovereignty. Edited by Trevor Stack, Naomi R. Goldenberg, and Timothy Fitzgerald, it is challenging but fascinating. The book jacket summarizes: "Religious-secular distinctions have been crucial to the way in which modern governments have rationalised their governance and marked out their sovereignty--as crucial as the territorial boundaries that they have drawn around nations. The authors of this volume provide a multi-dimensional picture of how the category of religion has served the ends of modern government. They draw on perspectives from history, anthropology, moral philosophy, theology and religious studies, as well as empirical analysis" from a number of countries. An essay by Tisa Wenger, for instance, uses a history of Pueblo Indian groups to discuss the ways in which "[g]overnment reserves the right to police what goes on in the 'religious' sphere, but also what is considered 'religion' in the first place and by extension who can claim 'religious freedom,' as well as what precisely they are 'free' to do with it." 

This is a wonderful book for those of us in the field who are interested in thinking about the nature and limits of state sovereignty in relation to religion. Of course it cannot and does not tell a simple story about any of these concepts: "religion," sovereignty, the state. And that is its attraction. The book relies heavily on critical theory, and (if it matters) much of the politics in the book is what one might expect from scholars drawing on that toolkit. As I've observed elsewhere, however, in the United States at this moment, critical theory may be particularly useful for those advancing positions outside of the mainstream liberal consensus on contemporary American church-state disputes such as the contraceptive mandate litigation, and in any event it can lead in surprising and unusual directions. It's striking to me that so much recent public discussion has focused on arguing that something or other is or isn't "religious freedom" or "religious liberty" and rejecting any competing definition by putting scare quotes around the phrase, as if punctuation is enough to settle such a question. Meanwhile, a raft of other concepts and assumptions--about the state, state power, state sovereignty, third-party "costs" or "harms," the "rule of law," what constitutes an exception, and so on--have been used by many mainstream authors without serious discussion or interrogation at all. In law, at least, you can tell a great deal about an argument based on what the author chooses to see as a complex or contestable term, one that raises "baseline questions," and so on--and what the author chooses to treat as clear, simple, and uncontestable, all evidence to the contrary. This book can help enrich and complicate all such discussions.


Posted by Paul Horwitz on August 19, 2015 at 12:30 PM in Paul Horwitz | Permalink | Comments (0)

Tuesday, August 18, 2015

Coming: A "Tilted" List of Recommended New Titles in Law and Religion [WITH UPDATE]

I've been laid up for a good deal of the summer and it's been a good time to read in my field---or browse, anyway, although some of my reading gets done properly. There is no question that law and religion scholarship has exploded in quantity and interest lately, for obvious reasons. I may not agree with all the directions that the literature has taken, but these have certainly been interesting times for it, with a lot of new writers whose primary interests have come to overlap with law and religion. Over the next few months I'll be mentioning some new titles of particular interest. They will primarily be books, not articles. The recent profusion of published monographs and collections in and around the field has been just as impressive as that of journal articles, and with the usual gains in thoughtfulness and expertise--particularly on religion itself, whose treatment in the new legal literature is weaker--that books bring compared to law journal articles. [NOTE: A slight update is offered at the bottom of the post.]

Although I certainly welcome and have been reading "all comers," my list of notices and recommendations will be tilted. In this post, I wanted to say something about how and why. The list will have something of a religious and/or conservative tilt. (The "and/or" definitely applies here.) This has little or nothing to do with my own religious views or politics, and a lot to do with academic diversity and pluralism. 

Successful academics in the fields I read in most tend to be heavily networked, and fairly conventionalist in their views. They do a good job of discussing and promoting decent books in their field that come from roughly within their circles and are not too heterodox for that circle, including political heterodoxy of a generally liberal or left-of-center kind. At least in my academic/cultural milieu, if a book meets those qualifications I can rest assured that I will see discussions of the book, generally positive and supportive, everywhere--if one defines "everywhere" in the way that Pauline Kael once defined the universe of anti-Nixon voters. They will be noted on my Facebook feed, given substantial attention on the blogs I read, and, despite being academic books, will receive a number of reviews in those mainstream liberal publications that still review books. Amazon's algorithms will recommend a dozen other books of roughly similar views--and their authors, I notice, are often the same ones conducting the favorable discussions online.

To take an example, I'm currently working on a review (for a print magazine reaching a sub-sector of the same liberal audience, thus underscoring my point above) of Andrew Hartman's A War for the Soul of America: A History of the Culture Wars. Since I'm still reading it, I won't comment on its merits. But it's fair to say that it's within the political mainstream of the academic milieu I'm talking about--my milieu--and that, for an academic title, it has gotten an enviable amount of attention from the usual academic and journalistic sources; it picked up another review, for an intellectual but general audience, just yesterday. It's not especially surprising that I read the U.S. Intellectual History Blog, or that it has gotten plenty of discussion there, or that Hartman writes on that blog, or that, from my perspective, the blog's community largely shares the same priors. Given that they share some basic assumptions, it's also unsurprising that the reviewers have generally been positive and supportive, despite some disagreements on particulars.

All that is to be expected. It's the way things--our limited attention spans, online algorithms, the current politically polarized culture, the culture and politics of the mainstream academy, elites, and/or the "symbolic analyst" class--work. As Miss Brodie said, "For those who like that sort of thing, that is the sort of thing they like." Although I'm happy to acknowledge it's natural, however, I won't say it's fine, especially for academics. It's lazy, contrary to academic values, and perpetuates an unhealthy form of elitism. It hides from view large numbers of ideas, arguments, and information that ought to be a part of the "standard" conversation and are not--are, indeed, in some sense treated as both beneath notice and below the salt.

Not all of this is ideological, by any means. There are both conservatives and traditionalist religious believers who are given attention within the conventional milieu, although they are exceptional, and these individuals are usually well-networked members of the elite who share some of its conventions. But it is certainly true that given the academy's conventionalism and given the politics of my sector of the academy, a lot of conservative and/or religious writers and books end up hidden from notice, out of the loop, out of the algorithms, not part of "the discussion." (There is an additional and, I think, related problem. A lot of good books that fall within mainstream liberal or progressive thought, or that are more radically leftist or "critical," and that do receive reviews and attention from conventional academics, have potential payoffs and benefits for conservative or religiously traditionalist arguments and groups. Those possibilities are generally neglected. I suspect that wouldn't be as likely if the reviewers gave more thought to books, ideas, and groups outside their usual political and intellectual milieu.)  

Doubtless these authors, neglected within what I would consider the mainstream academic milieu, have milieux of their own, although I doubt they have an equal tendency to ignore conventional academic works in their field. But whether they do or not does not excuse anyone else from the general duty to read more widely and give appropriate attention and publicity to a wider range of books and views. Of course, many of the books and articles I read fall within the mainstream of what "everyone" else is reading, and my recommendations will often reflect that. But it seems to me that many heavily discussed books that fit the usual, not-to-be-spoken of qualifications receive too much attention, while many other books get none at all, and for the wrong reasons. I hope to even out the balance a bit, and to tilt a lance or two in doing so.

UPDATE: Elsewhere, a friend writes in with this observation: "I'm not sure whether the category is politically or theologically conservative, or both -- and how these relate to 'traditionalist.' One may be theologically conservative, traditionalist, and yet also quite left on critical issues, in a narrow-political sense." Fair point. I was assuming two categories: politically conservative, especially on social issues--at least in the legal academy, fiscal conservatism does not necessarily lead to one being ejected from the club or ignored by the conversation--and religious in a traditionalist way, since it's obviously possible to belong to the milieu I'm discussing here while privately holding religious beliefs, or to be religious in a milquetoast mainline way, or to be religious in a way that affects one's desire for justice but still make arguments in essentially a secular or secularist way. Deep attachment to a traditionalist religious community with thick beliefs and practices and the desire to witness those commitments in one's arguments, on the other hand, is I suspect not going to be characteristic of most people who make it into the conversation. I suspect that is even true for some whose views are left but still deeply traditionalist--I am guessing, to borrow a Catholic term, that it depends on how much of your seamless garment you let show--but admittedly I had traditionalist religious conservatives primarily in mind. Although this may help clarify--a little--what I meant by the terms I used, I agree that the terms raise a number of questions, and I'm not sure I chose the best descriptors.    



Posted by Paul Horwitz on August 18, 2015 at 02:27 PM in Books, Paul Horwitz | Permalink | Comments (0)

Saturday, August 08, 2015

Garnett et al. on Tax-Exempt Status and Religious (and Other) Organizations

Should government insist that all private organizations comply with its own sense of the good? Most people, I think, still agree that the answer to this question is no. However strongly they feel that those public values are the right values, and however devoutly they may hope that all people and all groups come to share them and to act accordingly, they still believe for various reasons--not least a sense that the public-private distinction, however imperfect and vulnerable to critique, represents an important value of its own--that government should not and perhaps cannot rigorously or ruthlessly enforce what Nancy Rosenblum has called a "logic of congruence" between public and private organizations. To quote Robert Post, they reject the view, one that is nonetheless attractive to many more stringent liberal egalitarians, that "cultural conflict about essential moral values should be suppressed" by bringing private groups in line with public values. For many pluralists, to quote Post again, it is particularly important that the First Amendment--and in the view of some, not only that amendment but broader constitutional values and limits--"establish antihegemonic domains in ways that liberal egalitarian values never can." 

Currently, this issue is again something of a flashpoint in law and politics. That is not surprising to those who think there is something to the idea that we are living through something of a revival of the disputes of the 1990s. Although I think most people still reject the logic of congruence--many more, if we step outside of the usual elite, privileged province of the professional/managerial class, including academics--I dare say that within that province, the momentum right now is on the other side. And for most if not all of us, there are limits. Some of the most difficult cases involve those in which private organizations receive governmental aid. Still further out on the edge are cases in which private groups do not receive direct subsidies or participate directly in government programs, but simply receive the same tax-exempt status that many groups do. This is one area that has become more contested of late, most obviously but not exclusively in the area of sexual orientation equality. 

Our friend and fellow Prawfs writer Rick Garnett discusses that question in a new editorial co-written with John Inazu and Michael McConnell. The title, which I gather its writers did not choose and might not be completely comfortable with, is "How to Protect Endangered Religious Groups You Admire." They argue, in brief, that we should, at a minimum, be willing to protect religious non-profits that provide significant contributions to the public good despite their now heterodox views.

Read the whole thing. Feel free to disagree. I will add two points. I agree, in sensibility at least, with a point made by Marc DeGirolami in a recent post about the editorial: "We use the language of 'exemption' when we speak of the taxable status of nonprofits, but it would be better instead to think of their nontaxable status as marking a boundary of the government's power to tax." Reasonable disagreement is available about whether "power" is an apt word here, but for those who believe that whatever the extent of state power, it ought not lightly be exercised in a way that circumscribes civil society and a vibrant pluralism, the sensibility is right. Second, it ought not be only pluralists, and certainly not only social conservatives, who support these arguments. This is an argument that liberals ought to be taking seriously now, especially as progressive thought continues to drift in a more illiberal direction. 

Posted by Paul Horwitz on August 8, 2015 at 04:07 PM in Paul Horwitz | Permalink | Comments (0)

Thursday, July 23, 2015

Hiring Notices, University of Alabama School of Law

I'm happy to pass along these hiring notices for my law school. Feel free to email me if you have any questions, and of course first and foremost to contact Dean Brandon or Professor Hill, per the notices below. 

D. Paul Jones & Charlene A. Jones Chair in Law

The University of Alabama School of Law seeks nominations and applications for a University level Chair-holder. The School of Law has achieved a high level of excellence in the quality of its faculty, students, administration, and staff. We seek to build on our standing as one of the leading public law schools in the United States through recruitment of a Chairholder with a national or international reputation for scholarship and teaching of the highest caliber. We welcome nominations and applications in all fields of law. Most candidates will have a J.D. degree from an accredited law school. Exceptional candidates who possess an advanced degree, such as a Ph.D., and who have scholarship related to the law involving interdisciplinary, jurisprudential, empirical, or social scientific work may be considered without holding a law degree. The University of Alabama embraces and welcomes diversity in its faculty, student body, and staff; accordingly, the School of Law actively welcomes applications from and nominations of persons who would add to the diversity of our academic community. Salary, benefits, and research support will be nationally competitive. The School of Law will treat all nominations and applications as strictly confidential, subject only to the requirements of state and federal law. Interested candidates should apply online at Nominations should be e-mailed to Dean Mark E. Brandon at The position will remain open until filled. Please refer any questions about the hiring process to Dean Brandon at

Assistant Professor / Associate Professor / Professor

The University of Alabama School of Law anticipates making at least two tenured or tenure-track appointments to its faculty, to begin in the 2016-2017 academic year. The Faculty Appointments Committee seeks applications from entry-level candidates with excellent academic records and demonstrated potential for exceptional teaching and scholarly achievement. We also welcome applications from lateral candidates who possess outstanding academic credentials, including demonstrated teaching ability and a record of distinguished scholarship. Although positions are not necessarily limited by subject matter, we are particularly interested in the following academic subject areas: business law, commercial law, employment law, family law, and labor law. Most candidates will have a J.D. degree from an accredited law school. Exceptional candidates who possess an advanced degree, such as a Ph.D., and who have scholarly interests related to the law involving interdisciplinary, jurisprudential, empirical, or social scientific work may be considered even without holding a law degree. The University of Alabama embraces and welcomes diversity in its faculty, student body, and staff; accordingly, the School of Law actively welcomes applications from persons who would add to the diversity of our academic community. Salary, benefits, and research support are nationally competitive. The School of Law will treat all nominations and applications as confidential, subject to requirements of state and federal law. Interested candidates should apply online at The positions will remain open until filled. Please refer any questions about the hiring process to Professor Julie A. Hill, Chair of the Faculty Appointments Committee for the 2015-2016 academic year (email:

Posted by Paul Horwitz on July 23, 2015 at 04:58 PM in Paul Horwitz | Permalink | Comments (0)

Monday, July 06, 2015

Empathy, Sympathy, Compassion, and Sentimentality (and Obergefell)

At The Faculty Lounge a few days ago, Calvin Massey had this nice, short take on empathy, the Constitution, and Obergefell. The post responded to a recent op-ed by Kent Greenfield, which argues that "[t]he difference between Justice Anthony Kennedy’s majority opinion [in Obergefell] and the lead dissent of Chief Justice John Roberts is empathy, and lack thereof." Massey does not take issue with the premise that empathy had a role to play in Obergefell. But he suggests that "there was another path that would have bridged the passionate empathy of Justice Kennedy and the sober reading of constitutionally protected liberties of the Chief Justice": namely, to hold that full faith and credit demanded the recognition of out-of-state same-sex marriages, while leaving the states with some right to define marriage as they wish. He concludes: "Empathy itself cannot be the ratio decidendi of constitutional law, but neither must it be absent."

A lot of careless things are written and said about empathy and constitutional interpretation. Both Massey and Greenfield's pieces, although I disagree with aspects of each of them, are better and more interesting than that. Greenfield, for instance, favors the use of empathy as an important element in constitutional interpretation, at least in cases that allow for judgment calls. But he does not think it is sufficient as an interpretive guide. A balance is required. "Judging with feelings alone can be disastrous. But cold intellect can lead to error as well." 

In writing about these issues, it is important to keep some distinctions in mind. In particular, it is important to distinguish between sympathy, empathy, and compassion. I go into these distinctions below the fold, at the usual Horwitzian length. I sympathize with those whose understandable reaction is "tl; dr." They can skip to the last paragraph of the post, where I sum up my conclusions. I will go one better than that here and offer an even shorter summary: Most people who praise judicial empathy during a judicial nomination and confirmation process actually care about judicial sympathy or compassion. By contrast, nothing about judicial empathy requires a judge to favor the claims of the more sympathetic or disadvantaged party. Indeed, one of the most valuable aspects of judicial empathy is that it helps the judge in speaking to the loser of the case.    

Empathy, as one dictionary has it, is "the ability to understand and share the feelings of another." It is similar to but not the same as sympathy: "feelings of pity and sorrow for someone else's misfortune." It is possible, even common, to be sympathetic but lack empathy: to care deeply about the suffering of others without actually understanding those others or even making much effort to do so, to be sincerely charitable but also ignorant or condescending.

To pick up on another issue that has been discussed a great deal at The Faculty Lounge recently, empathy is arguably a vital ingredient of good ethnography, and of many other academic disciplines in the humanities and social sciences as well, often including law. Understanding the experiences, perceptions, and perspectives of one's subject can be an important part of one's work. Sympathy, on the other hand, may be largely irrelevant to academic work. I care what an ethnographer can tell me about the perceptions and feelings of his or her subjects. But I should not have to care how the ethnographer him- or herself feels about those subjects. I think it is fair to say that quite a few many contemporary academics believe otherwise: they think that sympathy for the disadvantaged subject is as much an academic duty as understanding. One may perhaps note here that one element of sympathy without empathy--and of valuing one's own sympathy, and especially one's display of sympathy--is the note of self-concern that can creep into such writings.     

To this distinction we must add another: the distinction between empathy and compassion, or (more finely) between sympathy and compassion. Although some definitions treat sympathy and compassion as synonymous, popular understanding of the word seems to distinguish compassion from sympathy by treating compassion as involving not just fellow-feeling for another's suffering, which is sympathy, but the desire and, perhaps, the concrete act of doing something to alleviate that suffering. Some of these terms, it seems to me with respect, are used too interchangeably in Greenfield's op-ed, or in the sources he cites, such as Justice Blackmun's notorious "Poor Joshua!" dissent in DeShaney, in which Blackmun wrote that given arguments on both sides of the case, "I would adopt a ‘sympathetic’ reading, one which comports with dictates of fundamental justice and recognizes that compassion need not be exiled from the province of judging." 

It is possible to argue that empathy is, if not always, then certainly often a required element of judging. It is often valuable, and sometimes legally necessary, to understand a case from the perspective of one or both parties: to understand, for instance, how and why someone experiences some legal stricture as a burden or an injury, or something of the subjective intent of the claimant. It may be particularly important in cases where the judge is either ignorant of relevant facts about that person's experiences, beliefs, and feelings, or even predisposed to view the claimants perspective as alien, irrational, or distasteful. Why do Sikh claimants care so much about wearing a ceremonial knife? Faced with a 24-hour waiting period, why doesn't a pregnant woman seeking an abortion simply rent a lovely hotel suite for a night and come back refreshed in the morning? Decisions in these cases are aided by making an effort to understand the perspective, factual and subjective, of the claimant. 

Greenfield, who argues for the value of empathy, implies that it is unnecessary in "cases where the solution can be discerned by sheer force of intellect." If the legal rule says the speed limit is 55 miles per hour, as opposed to saying that one must drive reasonably under the circumstances, no empathy is required to apply it. Even cases involving "objective" standards, such as driving reasonably, may require only technical skill at understanding the relevant elements that go to make up reasonableness, without anything more. I think empathy can be of value in even those cases, in various ways. Not always, surely. But it may guide one's sense, if not of how the legal question should be decided, then of how the decision's consequences will play out for the party, or of how the party is likely to react and respond to the decision. It is possible, although I can imagine arguments to the contrary, that empathy may also be useful in forming or modifying objective legal standards such as reasonableness. 

Legal decisions can be aided by empathy. But empathy does not decide those cases. Most important, it does not decide them in favor of the subject of the empathetic exercise, nor in favor--to underline the key distinction made above--of the more sympathetic party. One may empathetically understand, and from that perspective treat as significant, the experience of a significant burden on the religious exercise of an individual who owns a large crafts-store business and who faces a legal mandate with respect to the treatments covered by his company's health insurance policy. And yet, whether or not one also feels empathy or sympathy toward employees who are themselves affected or burdened by the exemption sought by the business owner, one may still conclude that the claim for an exemption loses. The employer may lose not because the employees seem more sympathetic, or because one also understands their burden, but for various legal or policy reasons that are take precedence over the judge's empathy: for example, because the statutory term "person" cannot be understood to reach corporate entities or for-profit businesses, or because no exemptions should be available from generally applicable policies, or because the government has met the burden of showing the compelling nature of its own interest and that it is as narrowly tailored as possible, or because economic efficiency interests require a ruling for the government, or because, regardless of the judge's empathetic exercise, he or she concludes that the court lacks jurisdiction in the case. One's exercise of empathy may even lead one to conclude that, whether under the law or as a general matter of justice, one now understands that the claimant's conduct was highly unsympathetic, and/or worthy of condemnation and punishment. For purposes of legal interpretation, to understand all is not to forgive all.

It is also important to note here the regularity with which empathy and sympathy are confused or poorly thought out in talking about things like judges' roles or what qualities a judicial nominee should possess. If I am right that empathy can help a judge better understand the claims, cases, and parties before the bench, then I think it is a useful quality even for those judges who believe that the law itself ultimately requires calling "balls and strikes"; it may still help one understand the shape and size of the strike zone, so to speak. When many people use the word "empathy" in talking about judicial nominees, however, they really mean that they want those judges to be sympathetic or compassionate. They may differ among themselves concerning the scope of the judge's discretion to act compassionately, in the number of cases that must perforce be decided in a formalist or legalistic fashion. To some degree, however, they believe that where the judge has discretion, it should be used in favor of the more sympathetic party--that the judge has a duty in such cases to act compassionately toward that party, to comfort the afflicted (and, perhaps, to afflict the comfortable).

Many people were clearly thinking in these terms about the nomination of Sonia Sotomayor. And certainly this is the import of the statement from Justice Blackmun in his DeShaney dissent that I quoted above. To act as Blackmun, and many other public commentators, demand frankly does not require much empathy at all. Neither pity nor compassion necessarily entail all that much understanding of the object of the sympathy. Many a Jellyby has felt or acted sympathetically toward some group readily identified by convention or common sentiment as a suffering or subaltern group, while displaying little interest in experiencing that group's life and feelings as his or her own. It takes sympathy or sentiment, not deep understanding, to write "Poor Joshua!" And if I am right that empathy involves understanding some claimant but does not compel a ruling in favor of that claimant, then I will go out on a limb--a small one, I think--and suggest that if faced with a choice between a generally empathetic judicial nominee and a generally sympathetic or compassionate nominee, many people would prefer the latter to the former. Nor am I going out on much of a limb, I think, if I add that they would feel this way even if that nominee was not especially empathetic, but was instead condescending, or politically programmatic, or moved by noblesse oblige, or simply adequately informed as to mainstream modern elite views about which groups should be understood as deserving of sympathy. On this view, understanding the unfortunate is nice, but pitying and helping them is far more important. 

In my view, there are still good reasons to favor empathy in judging even if that judge feels compelled to rule against the sympathetic party. It can matter, I think, how one tells someone that he or she has lost the case. Ideally, we do not want losers to reject the justice system altogether, nor--this may be a mildly controversial point, but I think even those who would controvert it would at least agree that it is sometimes true--do we want groups that are on the cusp between liberal and illiberal to become fully illiberal, rejecting entirely the notion of participating within liberal society, or to encourage illiberal groups to become still more radicalized. This is one argument in favor of religious accommodations (how far in favor is another matter), and against a pro-"martyrdom" approach to Free Exercise law, that I think has received too little attention. (I do make the point briefly in this book.) At a more mundane level, even if we are just interested in a marginally greater degree of social peace, or in having the loser comply with the judgment and thus ensuring final settlement of the controversy, we may want to speak to the loser in a way that acknowledges their perspective rather than treating it ignorantly or with contemptuous indifference.

While it is difficult to write a seriously empathetic opinion, for or against the claimant, it is much easier to write a sympathetic--a merely pitying--opinion. For what it's worth, I agree with Greenfield that the section of Justice Kennedy's opinion in Obergefell treating the facts of these and any more cases is better than that: it exhibits at least some empathy, not just sympathy and/or compassion. And it is at least fair to say that Chief Justice Roberts's opinion exhibits less visible sympathy for the same-sex marriage claimants than it could or should have.

I would add to that, however, these qualifications:

1) I do not know how well or poorly Roberts actually understands the claimants' experiences and perspective, how empathetic he actually is or was toward those claimants. That he votes against recognizing a constitutional right here is not strong evidence that he lacks empathy toward the claimants. Empathy, I have suggested, entails understanding a person's claim, not ruling in favor of it. It is perfectly possible to show genuine empathy toward a claimant but still conclude that the Constitution contains no such right, or that one should avoid creating new substantive due process rights, or that democratic change is better than constitutional entrenchment, even with respect to claims whose compelling nature one fully understands.

2) It is arguable that, regardless of the legal conclusions drawn by Roberts and the other dissenters, a stronger empathetic sense toward the claimants could or should have led them to write their dissents differently, acknowledging the powerful nature and meaningful experiences behind their claims more strongly than they did and defending the value of their legal views notwithstanding the claimants' own experiences and perceptions.

3) Empathy need not be exercised only toward the "sympathetic" parties, as one judges that question. It is relevant for understanding more deeply the interests, experiences, and likely reactions of all the stakeholders in the case. I do not think this is especially true of Justice Kennedy, but it is certainly true that some public commentary displays little deep understanding of the experiences and perspectives of some opponents of a constitutional right to same-sex marriage. That one disagrees with them does not mean one cannot or should not attempt to genuinely understand them, as opposed to merely drawing swift and stereotyped conclusions about their thoughts and feelings. The result of an empathetic exercise may be that some of those opponents come off looking worse--more dishonest, or holding views that from the perspective of the empathetic person are more deserving of condemnation than they initially thought. Others among those opposing the claimants' side might come out looking better; at least, one might better see the complexities, varieties, and ambiguities within that opposition. All this might better help one speak to that side as well, reducing, however marginally, the risk of turning those groups still more illiberal or encouraging them to resile from the social contract altogether. Or it might help the judge to understand better all the issues and competing stakes and values involved in the next set of cases that come up, such as those involving religious accommodation, or polygamy, or something else. In a divided, pluralistic, and complex society composed of groups and individuals with a huge number of different views, emotions, arguments, and reactions, most of whom at least think they are acting in good faith and for the right, empathy is rarely wasted.   

Finally, I would add, somewhat more speculatively, my sense that these issues--the nature of and differences between empathy, sympathy and compassion--can offer some link between the substance and the style of a judicial opinion. I suggested above that it is possible to be sympathetic or compassionate without being truly empathetic. I have also written elsewhere bemoaning the poor writing of Justice Kennedy's majority opinion. (Many people have voiced that opinion, including a number of staunch supporters of same-sex marriage. I suspect many more legal academic supporters of same-sex marriage feel the same, but feel constrained not to say so publicly. They do not want to look unsympathetic.) I also suggested that Kennedy's opinion displays at least some empathy, not just sympathy or compassion.

But that is a question of degree. And it may be that the evident weaknesses in Kennedy's writing in Obergefell are related to a tendency on his part to possess or display more sympathy than empathy. Writing that is sympathetic or compassionate, but lacking in true empathy--in a serious effort to experience the claimant's experiences and perceptions as one's own--may be more likely to be somewhat superficial, to lack real depth. It may display a higher degree of sentimentality. That may be especially true of those who care especially about the conspicuous display of sympathy--a common trait in our highly sentimentalist society, one in which phrases like "I think..." are often tellingly reworded as "I feel...," in which feelings are often treated as creating moral claims on others and are frequently prioritized or valorized more highly than reasoned judgments. Although I don't doubt the sincerity of Kennedy's sympathy on these issues, I think it is fair to say that his writing also gives the sense of his strong desire to be seen as sympathetic. 

This is not all bad. Empathy, especially universal empathy, can be paralyzing. (To quote a song by James McMurtry: "He saw both sides of everything/And found he could not move.") Sympathy and compassion may tend to produce more concrete action than empathy alone; certainly compassion ought to, although most of us know people who are highly, publicly sympathetic but do little or nothing about it. Academics--traditional academics, anyway--may be more concerned with contemplation or understanding than with action, and more disdainful of shallow sympathy or sentimentality. Claimants themselves can hardly be blamed for caring more about winning than about being "understood." 

Still, there is some value in getting our terms right and thinking through these issues with some care, especially as long as they figure in judicial nomination talk. The most important conclusions, I think, are these: 1) Many advocates of judicial empathy are actually more interested in judicial sympathy and compassion, provided that the nominee is sympathetic toward the right people. 2) Empathy, properly understood, is a valuable quality in judicial nominees. Properly understood, however, empathy does not require that the judge rule in favor of the more "sympathetic" claimants. 3) Empathy may be especially valuable not just in helping judges to understand the claims before them, but in helping them to speak to the parties. An empathetic opinion may be especially valuable in speaking to the losers in the case. It can help increase the degree of compliance with the judgment, give judges a better sense of the stakes in this and future cases, and encourage losing groups, especially illiberal ones, to stay within civil society rather than becoming more illiberal or radicalized. 4) Judicial empathy may be especially important in cases involving religion, or other groups whose beliefs, reasons, motives, and strong feelings are not "publicly accessible." 5) Judicial sympathy, without real empathy, may result in more sentimentalist judicial writing. 6) Nevertheless, for those who understandably care more about getting the "right" judgment than about getting the best or deepest judicial opinion, there are reasons to value sympathy more highly than empathy. But they should not be surprised if, along with the outcomes they want, they also see an uptick in shallow or preening opinions. 

Posted by Paul Horwitz on July 6, 2015 at 09:56 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, July 01, 2015

A Minor, Albeit Fruitless, Suggestion for the Supreme Court's Schedule

As a Canadian, I have long felt that the way people in wintry climes deal with the weather is not so much by displaying unusual hardiness, and more by forgetting utterly each spring just how bad winter is and not remembering it until the next winter rolls around. (The same, I find now, holds true for summers in the Deep South.) I feel rather that way about the end of Term of the Supreme Court each year.

I assume that it would be possible for Congress to redraw the Court's schedule to require it to operate on a continuing basis, with the continual rolling out of decisions, including those in "big" cases, rather than ending each year with a single, overpacked issuance of "blockbuster" opinions. I'm sure I'm wrong on some of the details, but I do believe the Canadian Supreme Court's schedule works closer to that than to the American model. This scheduling change would not do away with all of the aspects of the mighty "end of Term" that disturb me--which, alas, I will not detail here, or at least not right now--but I think it would help. I am less certain that it would be within Congress's power, but it would not be a bad thing either if it required the Court to issue opinions (or to DIG the case, hold it over for reargument, or otherwise deal with it) by a date certain after oral argument in each case, putting the whole institution on something like the ten- or twelve-day deadline regime that Justice White used to insist on for his clerks as they wrote opinion drafts. It might not suit the Justices' plans for Aspen, Vienna, or wherever else they care to spend their summer, but obviously that is of little concern to anyone but them. 

Both rules, I think, would mitigate, although hardly eliminate, some of the worst by-products of the Court's intersection with politics. Aside from having other matters on their plates, however, I imagine that the political branches see some benefit to them in having blockbuster releases around the same time that incumbents and challengers are on the hustings, giving them a windmill to tilt at and an occasion for fundraising. If for no other reason, I doubt that they have much incentive to propose or insist on any changes to the current schedule. Too bad!

Although I will decline for now to list the things that disturb me about the end of Term and the commentary that surrounds it, I will make one observation: I find it distressing that much of the academic commentary around the end of Term, including academic commentary written for the public, is aimed at the goal of reducing or eliminating the multiple or alternative meanings suggested by any major decision of the Court--indeed, as I observed in an article last year, at rendering some of those meanings "unutterable"--rather than proliferating them. Of course there are many good or understandable reasons that this should be so, as well as the many bad and understandable reasons for it. But I still find it distressing, and I wish that more academics, when it comes to rendering judgments on contemporary events, operated on something like the semi-apocryphal schedule suggested by Zhou Enlai.   

Posted by Paul Horwitz on July 1, 2015 at 03:18 PM in Paul Horwitz | Permalink | Comments (3)

Monday, June 29, 2015

Southern California Law Review on "Religious Acommodation in the Age of Civil Rights"

Not that it would be of much interest to anyone. I mean, it's not like it's been in the news much lately. But I commend to readers the new issue of the Southern California Law Review, which contains a number of interesting articles, of distinctly varied views, on this topic, stemming from a conference at Harvard Law School last year. A link to the Law Review page is here. Alas, the articles are kind of interspersed with other recent material in the journal, but the titles are pretty clear. I haven't read all the articles in it yet, but I can at least recommend those I have read, by Rick Garnett, John Inazu, Andy Koppelman, Steve Smith, and Mike Helfand. Other papers from the conference, published in the Harvard Journal of Law and Gender, can be found here. (I don't know how they determined which article would go in which journal.) Again, I have not read everything in that issue, but can highly recommend the articles by Mark Tushnet and Tom Berg.

A propos of John Inazu's article, I will just note that I think both Hobby Lobby and the next storm of religious accommodation cases and controversies make the question of pluralism an especially important one. In particular, I think it is the best source of ideas for those of us who continue to believe that there is an important role for religious accommodation (without prejudging here the limits of that accommodation), and who may want to find new language and arguments both to explain that view and to offer an alternative to some of the recent memes that have gained some popularity around these issues. It's not as if nothing has been written on the subject of pluralism before, but I think the subject is due to undergo something of a revival. I hope to write in that vein in the next little while, and I know John has a lot more to say on the subject. 

Posted by Paul Horwitz on June 29, 2015 at 04:01 PM in Paul Horwitz | Permalink | Comments (0)

A Hallmark of an Opinion: Justice Kennedy's Writing Style and How Much--or Little--it Matters

Although I think I disagree with him on some aspects of his post, I very much appreciate that Richard's post on Justice Kennedy's opinion in Obergefell doesn't simply line up on one side or the other of the usual "tastes great"/"less filling" debate on Kennedy as writer (or editor--I don't know how much Kennedy writes versus edits, although in the "big cases" the chambers voice is quite consistent). My sense is that Richard is positively disposed as far as the writing in Obergefell is concerned, whereas I opt for the "less filling" side. But Richard's post is mostly concerned with saying some more interesting things about the opinion and judicial opinion writing more generally. Let me try--mostly--to do the same thing here. I want to ask whether and how much it matters that Kennedy tried to write an opinion for "the people" instead of a more specialized audience. I conclude that the answer is: not much. An opinion on a deeply personal hot-button issue of this sort will attract attention regardless of how it is written, and a ruling that one favors on such an issue will receive praise regardless of how poorly written it is. Kennedy's continual striving after deep emotional affect in opinions of this kind is not only poorly accomplished, but mostly needless.    

Just to lay my cards on the table at the outset, I don't think the writing in Obergefell--especially the most-cited, most-shared writing, such as the peroration--is very good at all. Andy Koppelman, long an ardent supporter of same-sex marriage, writes of it: "All of Kennedy’s worst traits—the ponderous self-importance, the leaps of logic, the worship of state power—were on display." It is noteworthy but not surprising that Kennedy's writing is often worst precisely in those cases where it clearly matters most to him. In those cases he displays the same failing as a writer regularly enough for it to be a pathology: The deliberate and strenuous effort to achieve the grandeur that he believes fits the occasion. The double-entrendre of the word "Hallmark" in the title of the post is intended. Why do we turn to Hallmark cards on important occasions, and why are they so trite? It's not because the occasions are unimportant or meaningless. To the contrary, experiences like love, marriage, and death are inexpressibly important and moving. Therein lies the problem. Writing that manages to convey something of that sense is great but passing rare. Most of the time, the wisest approach is simplicity and even silence. Generally, when one tries to do more than that, the words used are not only inadequate, but extremely well-worn. Hence, even sincere efforts end up in triteness. I'm not sneering at Hallmark. No wonder many of us, knowing our own words fail us, turn to it on such occasions! And, given those occasions, no wonder its hackneyed phrases are such poor tokens of our feelings.

When he waxes mystical or sentimental or homiletic, Kennedy cannot help but write Hallmark card sentiments. His peroration in Obergefell is one such instance. Given what I have said about the difficulty of expressing the inexpressible, one may sympathize--up to a point. By now, however, he ought to have recognized the problems of trying to do so, so hard and so earnestly. It's like attempting to hang-glide over a huge and gorgeous cliff: the idea is romantic enough, but there's no half-measure of success--just complete success or crashing disaster. Kennedy does not succeed--and an attempt at this sort of writing, if it fails, ends up in hackneyed and clichéd prose. He seems utterly incapable on these occasions, when deep feelings and his own historical legacy are at stake, of remembering that less is more.

In a roundabout way, this critique brings me to my primary point, one that is closely related to some of what Richard writes below. Before this opinion came out, I used to joke that all of Kennedy's current and former clerks should conspire together. Each should send him a copy of the Court's opinion in Brown v. Board of Education with a suggestive little note along these lines: "I reread this recently and thought of you. What a great opinion--short and simple with little grand emotion!" Perhaps he might be persuaded, or reminded, to write such an opinion in the SSM case. For surely it was clear that Kennedy would, and did, seek to write the opinion in this case for the American public--or at least for those citizens, not necessarily lawyers, who would judge his eventual legacy and place in history. Richard emphasizes this point and writes below, "[T]he key question is whether Obergefell speaks to the people." Famously, this was also the goal of Chief Justice Warren when he wrote the opinion in Brown.  

Kennedy's peroration was indeed widely shared in what, for those of my class and political cohort, is the usual places: Facebook posts, The New York Times, Slate, and so on. But I wonder if that is especially good evidence that Kennedy's writing in Obergefell was a success. I doubt it, for two reasons.

First, consider Brown itself. Warren wrote a short, non-professional opinion in Brown with the intention that the whole opinion would be widely republished in full in newspapers, and read by millions of average Americans. And Brown does indeed matter to millions of Americans and command their loyalty and affection. But the fact is that Warren's opinion has always been more cited than quoted. And what is most likely to be quoted is not an emotionally affective sentence of the Kennedyesque sort, but a simple, dry, powerful legally oriented sentence: "We conclude that, in the field of public education, the doctrine of 'separate but equal' has no place." Warren never attempts to capture the emotional depths of the evils of slavery or segregation--sensibly enough, since it would be nearly impossible. The few sentences in the opinion concerning things like feelings of stigma suffered by children are still not of the Kennedy school of emotional "eloquence," and in any event they're not half as well remembered as the simple sentence quoted above. In Obergefell, Kennedy seeks not just to be read, as Warren did with Brown, but to be wept over, for the opinion to become a sentimental favorite and provide evidence of the writer's great sensitivity of feeling. Warren decidedly did not seek these things. But twenty years from now, I suspect that Brown will still be the better known and more fondly remembered of the two opinions. Warren made the wiser choice here.

What about all that glad and grateful sharing of the peroration? By no means do I wish to belittle the positive public reaction. (I will note, however, that in any other context, I would be quite surprised if so many of my peers would agree so readily that "no union is more profound than marriage," and in other contexts I could imagine a statement like that coming in for much criticism by the same people.) But I must discount it a little. I want to suggest here that almost any quotable sentence--good or bad, emotional or not, voicing this sentiment or some other idea altogether--that Kennedy wrote in an opinion making clear the constitutionality of same-sex marriage would be shared and praised by the same people, for the simple reason that it is a quote from an opinion upholding same-sex marriage

Consider a couple of examples from Slate, which is more or less designed to embody the mainstream of professional/managerial-class, politically liberal or "progressive" opinion. Naturally, it hailed the last paragraph of Obergefell as "one of the most beautiful passages you'll likely read in a court case." Fully in line with Kennedy's almost certain hopes, the author notes that he teared up on reading it. This past fall, Judge Richard Posner issued an opinion upholding gay marriage in Baskin v. Bogan. Unsurprisingly, it was shorn of all the ponderously voiced Hallmark sentiments that Kennedy can never resist. But Slate, while recognizing that Posner was not appealing to those kinds of sentiments and certainly did not "sound like a man aiming to have his words etched in the history books or praised by future generations," liked it just as much, if not more, calling it a "deeply moral masterpiece."

I would suggest that one conclusion one might draw from the similar reaction to these two very different opinions is that it just didn't matter that much what Kennedy wrote. The ruling--not the sentiment, and certainly not Justice Kennedy's sentimentality--was the thing. That the paragraph was shared does not mean that it was good writing--with all due respect, it clearly is not--or that it managed to express the inexpressible (it didn't), or that it voiced just the right sentiment for the occasion. (Many people who shared it do not always believe that marriage is the most profound of unions.) It was shared because people were thrilled that the Court had just upheld same-sex marriage rights. Just about any phrase, sentimental or not, fresh or clichéd, conveying the basic result would have done just as well. What Kennedy did was far more important than what he said, or even whether he was attempting to speak to the public or not. 

Of course, many people, lawyers most certainly included, don't care much one way or the other about the style, or writing competence, of a judicial opinion. I have no complaint about that. I do tend to be interested in those matters, and have been for some twenty years. In Kennedy's case, my interest is enhanced by a combination of the particular style--the strenuous reaching after grandeur--that he consistently adopts, the remarkable failure of those efforts in the hot-button cases on which he writes, the importance of those issues to me and others, the overwhelming amount of attention devoted to Kennedy and his words in legal and non-legal circles, his occasional tendency to talk about that fame in portentous terms, and the remarkable degree to which he continues making the same mistakes. For people who care about those things, it is understandable that his writing style and its shortcomings in Obergefell should draw attention. I have no problem with those who are not interested in the style of the opinion, who care only about the outcome or the quality of the reasoning; my disagreement is aroused only when what is evidently poor writing is praised as writing

I will note, however, that many critics, including supporters of the outcome reached here, have on this and other occasions criticized Kennedy for, in effect, devoting more effort to reaching grand and emotionally affective language than to achieving clarity or logic in these cases. In the post I linked to above, for example, Andy Koppelman suggests that Kennedy's opinion in Obergefell suffers from "leaps of logic." One might forgive those lapses more readily if there was a strong public need for the kind of opinion Kennedy did write. To the extent that the real outpouring of public emotion comes from the outcome and not the language, however, that allocation of his time and resources seems all the more needless. Under the circumstances, why not aim for clarity rather than depth of feeling?  


Posted by Paul Horwitz on June 29, 2015 at 03:08 PM in Paul Horwitz | Permalink | Comments (0)

Saturday, June 27, 2015

Critical Theory and Ideological Drift: Normal, Mutual, and Potentially Productive

It takes a while--a very long while, sometimes--for serious analyses of a new Supreme Court opinion on a socially contested issue, let alone one often cast as the contested issue of our times, to shake out and emerge from the welter.

There is a kind of common pattern to events. First comes the unstinting praise, the joy and relief, the casual forgetting of inconvenient predictions--and, on the other side, outrage, defiance, scorn, calls for constitutional amendment, the campaign posturing, and so on. Perhaps a few voices emerge, a couple centrist and a couple radical, with serious critiques, but they are rare and rarely heard. Certainly, given the usual divvying up of sources in news stories between the representatives of liberal conventional wisdom and those of conservative conventional wisdom, those views rarely gain any hearing outside limited niches. People who support the outcome but question some of the reasoning, or much of the writing, are also often understandably wary of speaking too early. They do not want to spoil the moment, or be misunderstood as not supporting the cause. They also fear professional obloquy for going against the consensus; they know that in the academy as elsewhere, one is generally better off being conventional or silent on such matters rather than taking the risk of unconventionality. Or--somewhat like me--they think of profound wrongs and injustices done to the group served by the opinion, weigh the little wrongs of the opinion against the greater good gained and joy felt, and are reluctant to seem like spoilsports, even though they know that this is surely not a sound academic consideration. A conventional wisdom emerges and solidifies. The discussion that follows later may be more credible and thoughtful, but now faces an uphill battle.

In the medium term, over the next year or two, one can expect much of the constitutional law division of the academic corps to turn to what one might call its primary job description in our times: serving as a kind of collective esprit d'escalier for Justice Kennedy. A similar call to duty arose after United States v. Windsor was released. Volumes of articles since then have sought to rewrite Kennedy's opinion in Windsor, to explain what it "really" meant, to uncover its purported hidden genius, to argue more or less convincingly that it's much better or clearer than people have said--or, failing all that, to defend the virtues of obscurity in judicial opinion writing. It is astonishing how much of the legal academy and its resources have become devoted to serving as post-issuance re-drafters of the opinions of one lone judge. Some time after all that, the real work of analysis may begin--although now, as I said, it will labor in the face of the headwind provided by the conventional wisdom that by now has already formed.

All this is to say that I'm holding off for a while on offering my broader thoughts about Justice Kennedy's opinion in Obergefell, other than to note that it is shorter than I expected but still suffers from Kennedy's usual failings as a writer, that I am very glad at the outcome but not enough so to treat poor writing as great writing, and that this case will be much easier to teach than Windsor.

I did, however, want to pick up on Jack Balkin's post from yesterday titled Sam Alito, Critical Race Theorist. Balkin writes, on the evidence of Alito's dissent, that "social and religious conservatives are reviving left-wing arguments made in the 1980s and 1990s by radical feminists like Catherine MacKinnon and by critical race theorists like Mari Matsuda." He concludes, on a note of--what, exactly? Amusement? Disbelief? Scorn? None of the above?--as follows: "Sam Alito as Mari Matsuda and Catherine MacKinnon. Talk about your ideological drift."

Although I saw it somewhat differently, I agree in general terms. I am moved to point out that I wrote something similar three weeks ago. There, I focused less on Critical Race Theory in particular than on critical legal theory more generally. I wrote, similarly if more cheerfully:

The scholarly legal analog to the "left-wing postmodernist criticisms of truth" and "Continental intellectual"-aping literature that McIntyre refers to above is Critical Legal Studies. As I've suggested elsewhere, in the fields that I'm most concerned with, especially law and religion, the most fertile population for such skeptical criticism these days comes from the right, not the left. There are a variety of reasons for this, I'm sure, but I suspect the most important one is that conservative positions on these issues are now more clearly minority positions than they used to be in the legal academy (as opposed to the courts themselves, although the ground may be evening up there as well). Insofar as CLS was born and used in large measure as a device for fighting guerrilla actions by undermining and sabotaging the overly confident assertions and assumptions of the majority, it makes sense that it would now be more useful for legal conservatives. In my view (see the linked article above), Steve Smith has for a long time made particularly productive and skillful use of it in his work. . . . I would not be surprised if its use increased on the right in public/constitutional law scholarship. This is a good thing, in my view, and has been little remarked upon.

I do not mean to minimize the differences of detail or perspective between our two posts. Among others, I focused on "CLS" while Balkin focuses on "CRT." Still, I am understandably receptive to the argument that some of the ideas that characterized critical legal theory of either variety in the 80s or early 90s, or some of the identity politics of that era, are now re-emerging on the right side of the field. I think it sensible and unsurprising. I do not think it takes much cheek on Alito or anyone else's part. There is no doubt that Alito is not one's idea of an "outsider." But then, neither is Hillary Rosen. Such is the nature of American pluralism, of shifting social tides, and of the vast and varying circles of the American elite, that its members may feel, rightly or wrongly, simultaneously like insiders in some arenas and outsiders in others. In any event, as I argued in the earlier post, critical approaches are in large part strategic devices, and it makes sense that individuals or communities within the legal or political sphere that consider themselves to be fighting a rearguard action will take up the tools that fit their perceived position.

Apart from agreeing in broad terms with Balkin while thinking that this is neither terribly surprising nor especially "rich" of Alito, I do want to offer two somewhat different points. First, Balkin focuses entirely on Alito and on "social and religious conservatives," and not at all on the majority, or on liberalism or the left. As I suggested in my earlier post, however, one may expect to see reversals or "ideological drift" on both sides. In an era in which the Court and the legal establishment were viewed by the left as bastions of conservative ideology, it was not uncommon to see writing that critically challenged the clarity, determinacy, or the very meaning of general values like the "rule of law" and mocked rote invocations of those values as pompous, credulous, strategic, manipulable, deliberately obscuring of true power relations, or all of the above. In contrast, these are the days of frequent naive enthusiasm among liberals on the left about the rule of law and of capacious legal values like equality or dignity; of regular invocations of those terms and values without much critical second thought; and of appeals to legal approaches, like originalism, that used to be the sole province of the right and the target of specifically "critical" criticism on the left. Ideological drift, like Freaky Friday, generally involves two partners switching places.  

Second, let me suggest that in the longer run, once the initial run of praise, condemnation, and rewriting has taken place around Obergefell, there will be a continuing role for critical theory, of the CLS or especially the CRT variety, that involves more than just poking fun at Alito or giving new strategic tools to the right. It is neither a controversial nor, as I am making it here, a critical or negative point that the decision to treat SSM as the spearhead of the movement for LGBT rights was a strategic one, and that part of the goal involved focusing on an issue and an institution seen as solidly bourgeois and middle-class. Although considerable consensus emerged around this issue for various reasons, including both sincerely held views and strategic ones, as well as the lockup of financial resources within the movement, it was the subject of significant initial debate within the LGBT community. There remain critics who worry about the reification of institutions, like marriage--that most profound of unions--that ought to be queried, queered, or even eliminated. For the most part, and whatever their self-conception may be, American progressives are basically bourgeois individuals with solid middle-class values. They talk more these days about economic inequality and reform, but end up doing and achieving more on non-economic social issues that concern themselves and their own interests (although those interests are certainly also shared by others outside their class). They would rather win with Hillary than lose with Warren or Sanders, and that means focusing on social and culture-war gains and once again relegating more thorough or radical economic reform, let alone the serious rethinking of basic social institutions or conventional power relations, to the sidelines.

None of this ought to be surprising, although it is raised nowhere near as often as it might be. I do not raise it here for purposes of criticism or derision. My point is simpler than that. Surely, beyond simply pointing to Alito and likening his words to those of critical race theorists of the past, there will remain a more serious and fertile task for the remaining devotees of CLS or CRT. Obergefell is an obvious rich subject of analysis and criticism through lenses of that sort. The decision, and our generation, surely merits a new and equally applicable go-around with some old ideas. No doubt an article is out there just waiting to be born, with the title of Obergefell and the Interest-Convergence Dilemma.

Posted by Paul Horwitz on June 27, 2015 at 09:14 AM in Paul Horwitz | Permalink | Comments (0)

Monday, June 15, 2015

Why Indeed?: A Few Words in Favor of Per Curiams

At the CoOp blog, Gerard Magliocca has an interesting post, with even more interesting comments, on the use of per curiam opinions by lower courts. I am not terribly interested in the occasion that drove it: a per curiam opinion of the Fifth Circuit upholding Texas abortion regulations. The case is substantively important, of course. But the concerns evoked by the issuance of the opinion per curiam--in effect, how do we know how to blame for such an important opinion?--are, like recent concerns about the possibility that the Supreme Court might hear appeals from three-judge district courts that are actually composed of conservatives, arguably too driven by present concerns and thus too subject to inconsistencies and short-term thinking. Still, I think this is an instance in which a discussion evoked by transient political matters eventually ends up raising more interesting, and perhaps more deeply political, questions than it was intended to. The question is raises for me is this: Why shouldn't all panel decisions, except for those few in which no one else joins the opinion itself, be per curiam? 

In his post, Gerard asks bluntly "whether per curiam decisions should still exist," arguing that "[w]e deserve to know who wrote a published opinion" and that, except in cases of true shared authorship, the per curiam opinion is the product of "fear [of] public scrutiny and accountability."

In the comments, Orin Kerr, in that way he has, asked of the statement that we deserve to know who wrote a published opinion, "Why?" The responses were to be expected and had to do with transparency and accountability. In particular, for present purposes, Magliocca argued that it is sometimes helpful to know who wrote a particular opinion, and--probably the major motivating factor for most general discussions of this kind--that "knowing authorship matters when a circuit judge is nominated to the Supreme Court." He received interesting pushback--including a comment by regular Prawfs commenter "Joe," who wrote, as I will here, "Query the reasoning in having the author's name there at all. It is not really obligatory when you think about it." Finally, Magliocca ended the thread with what felt distinctly like an expostulation: "If knowing authorship of majority opinions is unhelpful or unnecessary, then why ever say who the author is?"

Why indeed? Why not insist, or prefer, that American federal appellate court majority opinions be per curiam as a general rule? Magliocca seems to take it as obvious that the present practice of generally signing such opinions is correct and that we would be worse off if the practice changed. I'm not so sure about that. I wonder whether a more systemic cost-benefit analysis does not favor moving to a practice where appellate court opinion authorship is generally not noted.  

As we saw, Magliocca closes with what seems like a somewhat exasperated rhetorical question: "If knowing authorship of majority opinions is unhelpful or unnecessary, then why ever say who the author is?" In assessing the practice, that's not the right question. The right question is whether, all things considered, knowing the author of a majority opinion is more helpful and necessary than otherwise. In asking that question we must consider the negative as well as the positive consequences of signed authorship.

The general argument for noting authorship is that it enhances political accountability and helps future litigants. But the opinion itself still exists and serves much of that function. As Orin and others note, moreover, joining a per curiam may just as easily be taken as indicating that all the judges are accountable for the opinion. We lose some accuracy in pinpointing the author for purposes of blaming/praising him or her in the event that the author is nominated to the Supreme Court. But it's hardly clear that our rules should be organized around such a low-probability event; that's like forbidding outdoor swimming everywhere because lightning may occasionally strike somewhere. And, in any event, Senators and others have more than enough incentive, for better or worse, to blame or praise a nominee who comes anywhere near a controversial opinion. Thus, I'm not sure we gain that much by limiting per curiam opinions, or lose that much by disfavoring signed majority opinions.

Furthermore, there are interesting potential costs to the current practice of having individual judges generally sign an appellate opinion. They concern what I take to be at bottom a political question of a larger and more systemic, if vaguer, sort having to do with the American judicial, or "politico-judicial," culture. I will spell that out at decidedly undue length. 

We could have had, of course, a practice more closely following the older English practice by rendering all appellate decisions seriatim, forcing lawyers to piece together a holding more painstakingly from several opinions. For a variety of reasons, we don't do that, but instead generally rely on a single majority opinion where sufficient votes obtain. Whatever the historical reasons or justifications for such a practice, there are fair reasons why single majority opinions make sense today. Using seriatim opinions may make more sense in certain circumstances: 1) A legal environment with fewer cases and decisions altogether, so that the costs of piecing together decisions are not too great or worrisome; 2) a more common-law and less statutory diet of cases; 3) a legal establishment in which the interpretive community is smaller and more homogeneous, and in which the primary interpreters, like barristers, themselves serve a quasi-judicial role (on this, see this book by Judge Posner); 4) a legal and political culture in which more importance is attached, and more constraint derived from, the personal reputation and honor of the individual judge.

This is not our system anymore and hasn't been for some time. Given the mass of cases and judicial opinions issued, a huge number of them in statutory and/or agency cases, the judicial role here is closer to a modern bureaucratic/administrative function. Clarity and guidance are arguably more important, and personality much less important (and, because of the role of law clerks, much less apparent from most judicial opinions). Practicing lawyers themselves don't provide enough of the extra clarity or impersonality, because they are too numerous and heterogeneous, too competitive, and don't serve as significant interpreters of or gatekeepers for the law. And, whether or not the honor culture ever worked effectively in constraining individual actors through the risk that they might be publicly exposed as lacking in character, we certainly do not live in an honor culture today. Even the elite population is too large and politically polarized. There are always supporters willing to disagree about what counts as "good character" or excuse away any departures from it. And notoriety is almost as valued as widespread public esteem. We might be better off, on the whole, routinizing and emphasizing the bureaucratic/administrative function of the courts than insisting on those aspects of the system that maintain or encourage idiosyncrasy or personality. This, too, for what little it's worth, is a form of transparency: pitiless candor about what the system really is, as opposed to American lawyerly romanticism about what it used to be.

Moreover, with particular regard to the concerns raised by Magliocca about Supreme Court nominations, and also with regard to some more general aspects of our current judicial culture, we might think about the ways in which encouraging signed authorship of majority opinions on the lower appellate courts subtly reinforces some of what one might argue are the greatest flaws of that culture. It is a commonplace that, at least in the United States, law is a form of politics by other means and that individual judges fight for various political causes and (rather crude, partisan) ideologies through their opinions. It is also fairly uncontroversial, I think, that judicial nominations are often highly politicized; that the parties use nominations as an occasion to campaign and (especially) raise funds and, to a lesser degree, even expend some energy and political capital on nominations; and that some or most judges who stand out as potential high court nominees are particularly and prominently political. 

What is true, I think, but less often noticed, is that the practice of having individual appellate judges sign the majority opinions they write, and of distrusting more bureaucratic practices like per curiams, is not only a product of that culture, but may also reinforce and encourage that culture rather than restraining or counteracting it. This is apparent, to some extent, in the degree to which Magliocca thought it obvious that we care, and should care, about individual judges and their character, and about their chances in the nomination process. It reflects Americans' preoccupations in politics with individuals and their personalities; with highly publicized individual issues and decisions rather than with more systemic questions of process, policy, and the greater good (or efficiency, or what have you); with leaders as opposed to worker bees, heroes and villains, and so on. It encourages us to associate opinions closely with judges as their "authors," rather than thinking of judicial opinions as the product of nominal "judges" that are actually corporate units embracing both the judge and the law clerks who write most of those opinions. Not incidentally, it also encourages both law clerks and judges to link clerkships and clerk hiring to the political character and mission of individual judges. And it encourages judges--some of whom surely need no extra encouragement!--to think of themselves in largely egocentric and generally political terms, to think of themselves as heroic figures rather than relatively anonymous official actors in a routine system, to think and act as individual generals (of the idiosyncratic "blood-and-guts" type rather than as less heroic logisticians) on a substantially political judicial battlefield. To the extent that this allows individual judges to emerge more easily as prominent figures through media coverage, either as a general matter or around the time of judicial vacancies, that media coverage and the cultural message it reinforces influences the public, the executive and legislative branches (both of which are highly conscious of public perception, and many of whose staffers are deeply invested in the heroic and political vision of judges), and even the judges themselves, who are hardly immune from media flattery or from the influence of social norms and narratives. 

All of this culture is, without doubt, strongly ingrained. The point is not that getting rid of individual signed majority opinions and instead making a norm of per curiams would somehow eliminate all this overnight. (Leaving aside whether doing so would actually be a good thing. I think it might be. But many people, and certainly many elite Americans, like feeling as if they are romantic and important actors in heroic times, fighting heroically for the cause of the good. They do not want to think of themselves as cogs, or ask how the system might be changed to encourage them to be better, more easily substitutable cogs. It's hard to blame them for that, although it's far from clear that this is conduces to the betterment of the system or the nation.) It is that, contrary to my reading of Magliocca's post and the spirit behind it, it is far from obvious that the current norm, with the heroic, individualistic, and partisan judicial/cultural mythos it suggests and reinforces, is good. We might indeed be better off not generally knowing who the author of a majority opinion is. It might help starve those individual judges who positively want to be lionized for being strongly political actors of oxygen, lower the noise of our rather juvenile nomination process and politics, and reduce the incentives for individual judges to act as anything other than orderly, impersonal, obedient facilitators of a smoothly functioning justice system. The usual causation problem applies: it's not clear whether the value of encouraging a more bureaucratic, less individualistic "per curiam culture" would lie in its ability to restrain and counteract the current culture, or whether any move in that direction would itself be evidence of a change in the underlying culture.

In any event, whatever the intent behind it, I find that Magliocca's post has made me less confident that signed majority opinions are necessary or truly beneficial, and more willing to believe that we might be better off, all things considered, in a legal culture that tended not to reveal or emphasize the identity of individual judges. It certainly makes me more inclined to think that his question--"why ever say who the author is?"--is actually a damn good one.  

Posted by Paul Horwitz on June 15, 2015 at 11:20 AM in Paul Horwitz | Permalink | Comments (11)

Tuesday, June 09, 2015

"The Attack on Truth": A Sidelong Take

Yesterday's Chronicle of Higher Education contained an op-ed titled "The Attack on Truth," by Lee McIntyre, a research fellow focusing on the history and philosophy of science. There are standard-issue versions of op-eds by this name and on this subject for both the left and right, and for both science and the humanities; this one is the standard-issue left version for science. It's just decent as these things go, but there is an interesting passage in the middle with some possible payoff for legal academic writing:

[T]hen a funny thing happened: While many natural scientists declared the battle won and headed back to their labs, some left-wing postmodernist criticisms of truth began to be picked up by right-wing ideologues who were looking for respectable cover for their denial of climate change, evolution, and other scientifically accepted conclusions. Alan Sokal said he had hoped to shake up academic progressives, but suddenly one found hard-right conservatives sounding like Continental intellectuals. And that caused discombobulation on the left.

A similar potential phenomenon, along with a second and more concrete interesting reversal, is also apparent in legal academic writing in my field of public/constitutional law. The scholarly legal analog to the "left-wing postmodernist criticisms of truth" and "Continental intellectual"-aping literature that McIntyre refers to above is Critical Legal Studies. As I've suggested elsewhere, in the fields that I'm most concerned with, especially law and religion, the most fertile population for such skeptical criticism these days comes from the right, not the left. There are a variety of reasons for this, I'm sure, but I suspect the most important one is that conservative positions on these issues are now more clearly minority positions than they used to be in the legal academy (as opposed to the courts themselves, although the ground may be evening up there as well). Insofar as CLS was born and used in large measure as a device for fighting guerrilla actions by undermining and sabotaging the overly confident assertions and assumptions of the majority, it makes sense that it would now be more useful for legal conservatives. In my view (see the linked article above), Steve Smith has for a long time made particularly productive and skillful use of it in his work. For the same reasons that, if McIntyre is right, this kind of thinking has become more prevalent on the right in certain areas, I would not be surprised if its use increased on the right in public/constitutional law scholarship. This is a good thing, in my view, and has been little remarked upon.

Equally little remarked upon is the degree to which legal liberals in this field have, of late, mostly ignored or forgotten CLS and its insights (again). This, too, is understandable, for a variety of reasons. Winners don't spend a lot of time casting doubt on their own premises or attempting to undermine the central ground on which they themselves stand. And, at least in the scholarly community and to some degree more broadly, in politics and public discourse, the legal liberal position on issues such as law and religion occupies the central ground. And so one sees a lot of writing these days that is wholly confident about and quite lacking in skepticism concerning such easily and commonly bandied about phrases as "equality" or "egalitarianism," "dignity," "the rule of law[!]," and so on.

I suppose it shouldn't be a surprise that there is so little trace of CLS thought in this literature. I'm sure the veteran crits would be happy to point out that legal liberals mostly ignored it back in the day too, and that the crits' work was aimed as much or more at legal liberals as it was at legal conservatives. But it is customary now for liberal legal scholarship to contain rote statements about how we are all legal realists now, or nods to classic crit critiques of various conservative legal assumptions, such as the idea of a color-blind Constitution. In that sense, I find it striking that most of the mainstream law and religion work I am reading these days betrays little or no trace at all of having ever taken on board anything in the CLS literature, or of unease or skepticism about concepts and values that are obviously hugely vulnerable to critique. It's as if a whole chapter of legal thought--one that was, in my view, highly influential despite its overall failure--never happened. 

Although it's not shocking, it is remarkable, and I suspect that the reasons for it, if we dug deep enough, would be both varied and quite interesting. What I find particularly interesting is that while some of this omission is no doubt simply strategic, I suspect that a good deal of it is not. Some of it may be a function of ignorance: after all, memories are short in the legal academy, and our lack of serious institutional grounding in any kind of scholarly canon doesn't help matters. Some of it may have to do with a tendency within any victors' camp toward a combination of Whig and winners' history. And much of it, I think, has to do with a particular kind of naiveté. Many of these writers (like much of the legal academy as a whole) are writing as much or more out of a sense of political idealism and activism as from purely academic interest. And political actors are often long on naiveté and the swift elimination of cognitive dissonance, and short on history (except of the "right/wrong side of" sort), ambiguity, and serious self-criticism.

That's not all bad, of course. The latter qualities, which I consider fundamental academic virtues, nevertheless are more likely to lead to paralysis and quietism than to activism and progress. But it is interesting, especially insofar as all of this is taking place in an academic environment, one in which people purport to be skilled skeptics and to be fully possessed of academic values. In sum, I would suggest that, at least in the kinds of fields I mostly read and write about, there is a lot of room right now for a resurgence of serious critical thought--and that, contrary to two or three decades ago, it is much more likely to arise on the right of the legal academic spectrum than on the left. Not least for its intellectual fruits and entertainment value, I hope to see more of it.   


Posted by Paul Horwitz on June 9, 2015 at 10:48 AM in Paul Horwitz | Permalink | Comments (0)