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)

Thursday, May 14, 2015

Celebrating Kent Greenawalt

I'm at Columbia Law School today, at a festschrifty celebration of Kent Greenawalt on the occasion of the fiftieth anniversary of his entry into teaching. Kent's contributions to legal scholarship over that time have been (and still are: he has one book coming out soon and another in draft) voluminous and influential. They have also covered such a wide range of subjects that it has proved impossible to do them justice in one day: the panels today, on law and religion, free speech, and legal interpretation, do not cover his important work in criminal law and in many subjects within jurisprudence. My friends Marc DeGirolami, Andy Koppelman, and I talked about Kent's enormous contributions to law and religion--and both Marc and I speculated about whether Kent's spirit and approach might be less common and less welcome under current conditions, in which there is a lot of heated disagreement and polarization around some very basic premises of the law in this area.

Let me say a couple of words about Kent as a teacher. I learned two important things from Kent, one directly and the other indirectly and by experience. When I came to Columbia as a graduate student in 1996, I was interested in law teaching, although I thought that ifthat happened, it would be in Canada. So I paid attention to the different models of teaching I was seeing. What Kent excelled at, in the seminar context in which I observed him, was listening to student commments. It sounds easy enough, but like many simple things it is still a skill, one that is harder to do well than it looks and that needs to be developed.

Teachers are human. They are trying to run the class; to make sure that certain key points are conveyed during each class; to keep the whole course on schedule. Sometimes, as a student speaks, they are listening with some portion of their attention, but also thinking about whether that comment takes the class off-track, how to get to the next point in the lesson plan, whether and when to politely steer or cut short the more long-winded or off-topic student; and so on. Being human, and in many cases not un-fond of their own ideas, words, and voices, some professors may be thinking impatiently about what they will say next and barely hear the student at all. Kent was sincerely interested in what students had to say. He would, where the comment was not clear, work with the student to dig out exactly what he or she was trying to say. He responded to each one with care, always parsing and refining and pushing back, always respectfully. He treated each student as a full fellow participant in an important ongoing conversation. He provided a wonderful model.

In trying to emulate Kent, I have found that it's harder than it looks. It's not hard to care about what students have to say: I learn from them all the time. But it's hard to have enough background knowledge, and immediate access to that knowledge, to offer a worthy response to varied comments; hard to keep one's attention undivided by the usual administrative matters; and very hard--as my students can attest--to do all this without blowing up the syllabus.

Kent also taught me a great deal about the duty and pleasure of repaying personal and professional debts to others. With two other teachers that year, Kent changed the trajectory of my life. Insofar as there was not much I could do for him, my repayment consisted of trying (imperfectly, to be sure) to help others--current and former students, law students elsewhere, junior colleagues, including some profs I had never met but whose work I admired--as Kent helped me. It is in doing so, or trying to do so, that one realizes that this is a core professional duty--and discovers that it is also one of the great pleasures of one's teaching life, enriching and sustaining in a way that scholarship itself is not, however much I may enjoy writing. That said, it is a great pleasure to be here today to repay a portion of my debt to him more directly. The whole of it is beyond reckoning.

(Comments are welcome, but Greenawaltiana only.)


Posted by Paul Horwitz on May 14, 2015 at 02:30 PM in Paul Horwitz | Permalink | Comments (4)

Friday, May 08, 2015

More on That Times Op-Ed: Surprising, Disappointing, and Banal--But Not an "Appalling" Surrender on Free Speech

Like Howard, I reacted with surprise to the Times editorial yesterday titled "Free Speech vs. Hate Speech." And, as a liberal and civil libertarian, I was prepared by that headline to be "appalled," like Howard. That sense dissipated somewhat when I read the actual text of the editorial (an unusual event in itself for me; the time of institutional editorials by newspapers has long since passed and I generally never bother to read them). That in itself is perhaps an instructive lesson in post-Internet journalism. The clickbait style of headline writing has moved not only into the online space of ostensibly serious newspapers but into their "meat space" too; headline writers today, callow and provocative though they may be, have much more power than they used to or ought to. I come out somewhere between Howard and his civil but forceful commenters, who pushed back on his post. But I still think surprise--and, in my case, disapproval--is warranted. 

Institutional newspaper editorials are generally banal. They are meant to be banal, for obvious reasons. If and when you see the Times write consistently interesting editorials, it is more likely than anything else that it will mean the Times has conceded the impossibility of surviving with a "voice of the [better half of the] nation" model and opted instead to cater to a narrow readership only. Alternatively, an interesting editorial by the Times on such a subject might signal a significant change in the center of center-left thinking, inasmuch as the Times generally aims to write editorials that reflect and flatter the center of its readership (just as a conservative-but-national newspaper would aim to write banal pieces for the center of its readership).

I think this editorial does embody both of these aspects, to a degree. The Times almost certainly has decided to be more aggressively progressive (not liberal--there is a difference, and the Times has become a more illiberal newspaper), in order to fend off Internet competition and adapt to market segmentation. And the editorial does embody a shift in the center of center-left opinion, which today is less civil libertarian on some issues than it used to be. But it is still a national newspaper editorial, and at bottom it is still pretty banal. As the commenters rightly observe, its headline outpaces the editorial itself, which ultimately has more to do with how it feels about the speech than with the legal rights of the speaker. It is unfortunate that feelings are such a major aspect of, and subject in, public discourse today, but such are the times. Nevertheless, the editorial, in characteristically banal fashion, does not attempt to rock the boat; it just tacks left a bit.

That said, I think the editorial manages to be both banal/disappointing and surprising....

Why "surprising?" The Times editorial board has always been reliably civil libertarian. Of course its editorials never expressed admiration for the speech of bigots (and I believe Geller earned that label long ago). But their typical "yes, but" editorials on the subject would generally have ended with the civil libertarian point: yes, the speech is contemptible, but, followed by cut-and-paste quotes by Holmes and Brandeis. This is a "yes, but" editorial with the opposite orientation: yes, the speech is protected, but....

Not an earthshaking difference, surely. But, as this letter responding to the editorial suggests, regular readers of Times editorials (or regular non-readers like me) know the difference, and the Times knows we know. With the help of that headline, the shift was all the more glaring, enough so to make me actually read it--and, again, the Times knew it would be. Hence the surprise. There has been talk in recent months about how much the current political climate around culture-war issues resembles the 90s-era debates about "political correctness." I think it does, broadly speaking. But one potential, and important, difference is that more establishment institutions today may be more receptive to such arguments than they were at the time. They have changed their views, or are speaking to smaller parts of a more segmented and polarized audience, or have been turned into vertically integrated digital media companies by Chris Hughes. In short, I think there was a real basis for surprise.  

Although, like his commenters, I disagree with Howard that this means the Times has "given up on free speech"--perhaps he has the headline bug too--I still think the editorial is disappointing. Partly it's because, as I said above, I'm a conventional, traditional civil libertarian, and this editorial signaled a shift in emphasis on those issues for this paper. But it's also because the editorial itself is--well, banal, in an unsatisfying sort of way.

Let me offer two criticisms. First, the editorial launches itself from the base of what it calls a current "furious and often confused debate about free speech versus hate speech." One would expect an editorial by an institution that fancies itself the voice of reason to ameliorate the confusion rather than contribute to it. Alas, it does not. "Hate speech" is, perhaps foremost, a legal term of art. Not everything counts as "hate speech"; what does count as hate speech, and what should follow from that, is precisely the core of the debate. The Times does not seriously define what it thinks hate speech is. For that matter, although it notes that images ridiculing religion are protected "in most Western democracies," it does not address whether Geller's speech act might qualify as "hate speech" in those countries that restrict such speech, or whether it should. It could, without eating up headline space, have avoided some confusion by labeling this as "hateful speech" or "bigoted speech." It did not, and by using the term "hate speech" it left in place the very confusion to which it rather patronizingly referred.

Second, even in the small space to which it was consigned, the editorial did a poor job of talking about Geller's motivations. The editorial asserts in the second paragraph that her speech act "was not really about free speech. It was an exercise in bigotry and hatred posing as a blow for freedom." In other words, assessing Geller's motives is the whole point of the piece. In concluding that Geller's speech was "motivated by [nothing] other than speech, it ignores some obvious possibilities. Doubtless another goal of the event was fundraising. Yet another was free publicity, which has motivated political actors since long before the "Daisy" ad (aired by its makers exactly once, but rebroadcast for free and discussed endlessly thereafter) and is an especially popular motive these days. Still another was to provoke for the sake of provocation. Another likely motive was political, in several senses: as a partisan move, to influence policy, and in the sense that the whole stunt was a political act, in the same way that burning the flag or immersing a crucifix in urine is.  Another was to provoke a controversy about free speech specifically. And probably another specific motive was a kind of "épater le bourgeois" spirit. 

I don't doubt that Geller's works are contemptible and her policy proposals, such as they are, horrible. But I suspect that she is as opportunistic as she is sincere. To that extent, I'm far from certain that her speech act in this case was actually motivated by hate, although I take cold comfort from that. Doubtless various motives--sheer anti-Semitism, the prospect of financial gain, political opportunism--were afoot in Kristallnacht; it was still Kristallnacht. Still, the possibility of varied motives other than hate is the core of the subject of the editorial. And the complexities that such possible mixed motives introduce--Should we judge such speech differently? If speech is "about" provocation or "about" free speech itself rather than bigotry, but the speaker uses bigotry to achieve his or her aim of provoking, or creating a free speech issue, should we "feel" any differently about that? How much should motive matter, anyway, in judging speech that offends particular groups, as long as the speaker knew that would be the likely result of the speech act? Does it matter, for purposes of moral judgment, if the speech "punches up" or "punches down," and how do we tell the difference?--are all central to the actual discussion the editorial seeks to hold. Not much space would have been needed to at least nod at these points. And if that wasn't possible, the editorial could either have run longer or not been run at all.

In the end, then, I part ways a little from Howard, inasmuch as I don't think the editorial is "appalling" in the terms in which he puts it--as a sign that the paper has "given up" on freedom of speech. The editorial is ultimately about our moral judgment of particular speech acts, not about whether those acts are entitled to legal protection. But I think there are good reasons why regular readers of the Times's editorials on civil libertarian subjects took note of and were surprised by this piece. It may signal a shift in orientation for the paper itself, and indeed a movement in the center of center-left thought on some civil libertarian issues. And, banal as it is, I think the editorial still disappoints and fails even on its own terms.

Posted by Paul Horwitz on May 8, 2015 at 11:26 AM in Paul Horwitz | Permalink | Comments (12)

Friday, May 01, 2015

Will Legal Blogs Survive, or Die Out?

A month and a day into our tenth anniversary, I come finally to address a question that came up in a conversation this winter with the great election law blogger Rick Hasen, one that for me at least motivated this week's concluding subject: Will legal blogs fade away and die? With the usual risks involved in summarizing someone else's views offered in casual conversation, I will say in short that Rick was skeptical about their future, and eloquent on the subject.

Over the course of the past month, some of my posts have supplied some of the reasons underlying this pessimism. Rick offered some of them, and others are simply my own personal perspective. 1) A decade wears out any blogger. 2) If you're not just aggregating, or if your subject matter is not highly constrained to a specific subject, the wear-out factor can be even greater. It helps if you have particular hobby-horses that you don't mind returning to again and again. But that's not true for all of us; some of us like writing, particularly on certain issues, but are not much driven by a cause or mission and thus don't see much virtue in repetition (although that doesn't stop me). 3) Group blogs help spread the burden, but create organizing and administrative costs (borne here almost entirely by Howard, with my gratitude). And not every group- or guest-blogger contributes equally. Certainly I have not, in the past couple of years, whether the reason has been understandable or not. 4) For many, the tone and nature of the comments (and some of the posts!) adds to the sense of exhaustion. And while such a tone evidently draws one set of commenters, it may turn off and turn away other, quieter but larger, segments of the audience. I understand that views vary on this. So be it; this is mine. For what it's worth, while I consider much of the degradation of content and tone to be related to a particular subject-matter, I think it's present on both sides of the debate, as a recent local discussion suggests. 5) The existence of other fora, such as Facebook, where one can satisfy some of one's own desire to write or communicate on current legal issues and other matters, to a large but limited audience. 6) The availability of other social media--Twitter most prominently, but perhaps there are others--that may draw a larger audience, although they have other sorts of limitations or constraints. 7) Perhaps, to some degree, the availability of other sites--HuffPo and so on--that are constantly hungry for material and may draw off some of the writers who would otherwise guest on blogs or create one of their own. 

All of these taken together, but perhaps especially 6, as well as 1-2 and 5, offer some reason for pessimism about the long-term future of legal blogging. At least they suggest that, having first drawn an audience and to some degree outlasted some other media that served some of these purposes (remember the magazine Legal Affairs? Kind of?), blogs and bloggers now must again retrench, reconsider their individual missions and approaches, and either switch to, incorporate, or face competition from alternative social media.

I am in some ways less pessimistic than that. I don't think a lot of blogs are about to disappear. But I do think that it is a possibility. And I very much think that what will tell the difference will be the degree to which blogs and bloggers, or prospective bloggers, adapt their current setup to be more driven by and connected to other social media. And it is quite possible that many existing bloggers, and certainly some of the people who would otherwise have helped staff and rejuvenate the existing blogs, may choose instead to devote themselves to other media, not blogs. It may be that the second possibility is greater, and more perilous to the blog enterprise, than the first.

Although I don't forecast a sudden disappearance of blogs, it does seem likely that some will continue more for the sake of soldiering on than out of a renewed burst of enthusiasm. I could be quite mistaken--it might be just a trick of perspective--but certainly, and notwithstanding the greater impact some of them are having on current legal/political debates, I think the heyday of the legal blogs seems to have passed, or at least that the best of them are more fallow and/or routine (like Raymond Chandler's description of drinking tea) right now. Of course there is a chance that, with a first wave of blogs having popped up and a great number of them having faded long since into oblivion or desuetude, the same thing could happen to another round of blogs, some of them long-lasting ones. Orin (and Rick agrees with him) offered some reasons on this site a while back why this might not happen. There are still gains, often indirect ones, to be had by blogging. We'll see. But, again, it's at least possible that some blogs will simply fade out.  

I have mixed feelings about this. But I think, on this anniversary occasion, I will say a few words about three or four of the things I have liked most about blogging, and about this particular blog that our friend Dan established, lest they get lost in the mix.

The first has to do with length. Blogs, including legal blogs, have always been good for middle-distance runners. For those of us who generally try to do more than aggregate, the length of a blog post--granted, it can be any length at all, from the dreadful "Heh." to my own customary length, "tl;dr"--is a great midpoint. It offers enough room to develop a thought fairly fully. It needn't and shouldn't be a full-dress article, but there's a lot of room to work through a small issue, or the daily item in an ongoing current issue, or a stray thought or idea that deserves to be shared with one's colleagues but might not merit an article. This is a virtue that--I insist--blogs hold over social media that impose low character limits. I think that point will matter less to those whose goal in blogging or using other social media is to score points or mouth slogans or play at politics or social change; a Twitter post is no shorter than a graffito on a wall in Beijing during the Cultural Revolution. For those who want to share ideas and observations at greater length, however, it matters very much. 

The second thing I like is voice. Like all of us in the academy, I read my full fair share of SSRN abstracts every week. And there are countless times that I read an abstract and get the unmistakable sense that someone with a perfectly good idea or piece wrote out a simple, English-language summary of that article, one that would help any reader understand its gist--and then plugged that clean, clear, short explanation into one of those online engines that turns anything into parodically abstruse academic prose. That is a bad, bad thing, to be clear, and no personal ambitions or strategic aims can justify it. The virtue of blogs is that one is generally expected not to do this. The tone might be totally colloquial and non-academic or not. But it is generally meant to be more approachable, not less. On the whole, and despite the many well-aimed arrows that have been sunk into it, I find legal academic writing clearer than the writing in some of the other disciplines that I read. That's good, and we always need more of that, not less. Writing on good legal and other academic blogs has always strived not to impress or intimidate or sucker a submissions editor, but to be read. 

Third, I have liked the capacity for tentativeness that blogs allow or encourage. In truth, there is no reason that longer academic prose can't be tentative in its conclusions, or ambivalent, or simply exploratory. The older and more established one gets, the more confidently one can do this if one thinks it's as much as the subject demands or allows. But the frequent assumption is that a longer law review article will offer an unmixed conclusion, or recommendation, or reform program. Given their length and voice and, if not impermanence, then the knowledge that they may be superseded by another post a day later, blog posts have always been a good place to be frankly and unashamedly tentative in one's views or conclusions--to simply find something interesting and worth thinking about further, period. 

That offers a segue for a fourth point: the value of the blogging community. One reason those kinds of tentative posts were possible was that the blogging community--both its writers and its readers and commenters--accepted such posts, even welcomed them, and understood them to be well within the acceptable norms for the medium. Of course comments on such a post might disagree, push back, or find the post more tentative than it should be, but they generally accepted and respected the enterprise itself and did not find such a post out of bounds. I am not a frequent reader of Twitter, I readily and happily confess. But I do see some evidence when I do read it that the very architecture of that medium ends up encouraging a constant exchange of short salvos between opposing camps (or mutual "you go!" support, overly fulsome praise, and solidarity from within the same camp, which I personally find almost as intolerable). There was no shortage of disagreement during the sweet-spot era of legal blogging, but I do think there was a general sense of shared enthusiasm, tolerance, and community. 

I'll end this last anniversary post (for me) by saying again--of course, and always--that one of the things I liked most about blogging, and miss most about its heyday, is Dan Markel himself. Enthusiastic (way enthusiastic); energetic; social; interesting; uninterested in total war but unafraid to fall flat on his own face; always interested in creating, encouraging, maintaining, and expanding a community and a conversation--Dan was a big part of the blogging experience for me. As I've said before, as much as I have gotten from blogging and sometimes still do, one of the best reasons for me to keep on blogging, despite some of the doubts I've aired this month, is to honor my debt to him. 



Posted by Paul Horwitz on May 1, 2015 at 10:42 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, April 29, 2015

"Slogging Through the Likes of Alabama"

In his hopeful post on the oral argument yesterday in Obergefell v. Hodges, Dale Carpenter writes, in an early passage in the post: 

At first, I took Justice Kennedy’s observations to reflect a general methodological Burkeanism that should hang over all of constitutional law. That’s the way Judge Sutton used it. If that’s how Kennedy is using it–if he really means that we should wait-and-see for some indeterminate percentage of millennia before enforcing a principle as constitutional law against vestigial democratic resistance–then it’s time for the gay-marriage movement to put the corks back in the champagne bottles and fire up for a generation or more of legislative slogging through the likes of Alabama.

As I live and teach in the likes of Alabama, I thought I'd add a comment on this. This is another long, below-the-fold post, so I'll offer a summary, which breaks down into three propositions. 1) He's right, of course, in general terms. 2) Nevertheless, there are both generational changes at work here and, especially, a strong streak of libertarian thought among some conservative Alabamans  that, if advocates of LGBT equality spoke to it, would certainly help speed things along in moving toward changes here as elsewhere. 3) So far, regrettably, to the extent that well-funded national-elite LGBT groups have started directing their money and efforts at states in the Deep South, their approach has not been especially tailored to the state; it's just been a local version of the national campaign. One doesn't expect a lot of flexibility and responsiveness from well-heeled DC-centric juggernauts. But it's still too bad. By really listening and adapting their campaigns to those local views that might give them some leverage, they might shorten the "slog." [EDIT: A colleague reminds me that the preferred demonym (a new word for me, I confess) is "Alabamian," not Alabaman; I had some recollection as I was writing that there had been a dispute over which to use and just chose one--the wrong one, alas. I am leaving the error in here and through the rest of the post, partly for the sake of time and partly so that my error, despite my living here for some nine years, can be held against the rest of my analysis if people choose.]

In general terms, of course, Dale is right to think that if the Court does not find a constitutional right to same-sex marriage--I believe it should, and probably will, although it would be nice if the opinion doing so were clean, clear, and legible this time--efforts to arrive at such a right in places like Alabama will be very difficult. The contretemps with the Alabama Supreme Court and the clownish general public statements of Chief Justice Moore demonstrate that clearly. (I distinguish the general public statements, and the language at the end of his initial memo on the scope of the district court's order, from some of the substance of that memo, which, like Howard, I think was probably substantially legally correct, like it or not. Generalized references to the Supremacy Clause or Cooper v. Aaron are not really sufficient here, and I think some of those arguments have been more strategic than analytically sound.)

I assume that Chief Justice Moore is motivated substantially by sincerely held views, but also in part by his knowledge of the fundraising possibilities that his position presents, and in part by a desire for elected office. And if the Court rules in favor of same-sex marriage, I assume he will continue in this vein, at least in his public statements if not in resisting the applicability of the Court's decision, and possibly both. He could stay on the Court and continue in this course; or he could make a show of resigning as a result of the decision and the law it would force him to apply, and then run for governor again.

Either way, there's no doubt that there is a receptive audience here for his actions and outbursts. It's not an Alabama establishment view, I think, or even a Republican establishment view; the conservative Alabama establishment, whatever its views on LGBT rights, tends to disdain Moore. But this is a populist state with a substantial population of religious conservatives, and his election shows that those views can succeed in getting votes here, no matter what the conservative establishment itself would prefer. (Populism is quite popular on the left these days, I must observe parenthetically. I don't share that affection. Living in Alabama is not the reason why; I have never been much of a populist. But it sure helps.)

Public views on gay rights and gay marriage have, of course, shifted incredibly in this country in the past few years. That has been to my great satisfaction, even if I have mixed feelings about those Democratic politicians who have now found it convenient to talk about the "evolution" of views that they once offered publicly, simply because winning office was more important to them at the time than publicly and forcefully championing the equal dignity of gays and lesbians. But Dale is right that those changed views don't yet represent the majority view in a number of states in the Deep South, including Alabama. If, as someone who makes his home here and knows a little about its nuances and complexities, I bridle at talk of "the likes of Alabama," I certainly cannot say he is wrong, and I can hardly blame him for feeling that way. As with the struggle to recognize basic civil rights in the wake of Brown, this will be an uphill battle, especially if the Court does not recognize a right to same-sex marriage but probably in any event.

But I would like to say a word about the Alabamans I have encountered in my constitutional law classes. There is some danger in characterizing their views based on statements in class, especially because a) I urge students to focus on the legal issues first and foremost, not the politics or their general policy views and b) knowing that many students here shy away from talking about hot-button issues, I certainly encourage them to explore different views or take a devil's advocate position, whatever their own views are. Nevertheless, I've been at it a while and can say something about prevalent lines of thought among my students.

What I would say is that there is a strong libertarian streak in their views. It expresses itself in various ways; in some cases directly, in some cases indirectly through their views on federalism. They do not, by and large, care for a case like Wickard v. Filburn, or for the Court's later decision in Gonzales v. Raich. They do not categorically disdain federal power, but they think it has real and judicially enforceable limits. And, consistent with libertarian views, they think Raich came out as it did in part because of a regrettable attachment to the war on drugs. But their libertarian views, as well as simple generational changes in view about LGBT people and rights, are also reflected more directly in their views on individual rights. That most certainly includes the issue of same-sex marriage. In addition to general generational views about the fundamental equal dignity of gays and lesbians, they also think of marriage essentially as no one else's business but that of the couple in question. If the Court rules as many of us would like, they will be delighted, any federalism issues notwithstanding.

I make no extravagant claims and should offer appropriate caveats. Many of my students come from outside Alabama or are Alabamans who have lived elsewhere before returning for law school. The Alabaman students are not all conservative, and not all the conservative law students are religious conservatives. Simply by virtue of the fact that they are seeking post-graduate degrees, they are (as in most states) not a representative sample of the population. And those students who are religious conservatives are less likely to speak out in class about social issues.

Nevertheless, I think the libertarian streak I have suggested here is genuine. It does not represent all Alabaman views or all views of Alabaman conservatives. But it does represent a real and substantial view. If I were seeking to alter views here, or just to splinter conservative views and find avenues to push along receptiveness to same-sex marriage and LGBT rights in a conservative state like this one, that's where I would aim my efforts. It would not capture the majority. But it would find a receptive audience within that majority. Fewer people might be convinced that marriage is no one else's business but the couple's; but more of them, given their views of government, would be convinced that it's more the couple's business than the state's.

As I noted at the top of the post, national LGBT groups have in the last couple of years begun moving their efforts slowly into the Deep South and other such states. I certainly encourage more people here to learn about and get involved with groups like Equality Alabama, which are often staffed by people who were born and raised here, even if they then moved elsewhere. But there is a difference between national groups moving into states in the Deep South and having those groups actually tailor their efforts to the views and circumstances of those states. Based on what I've seen of ads and similar efforts funded by national groups and aired here (or, really, aired on the Internet but ostensibly aimed at these states), there has been relatively little effort to do so. The ads still have a substantially national flavor, not a local one. They feature local people, but they don't tailor the message much, other than being more assiduous about sprinkling in references to God. This may be a religious state, but I doubt that a religious message would get as much traction here as a libertarian one would.

If I were working for those groups, I would aim my efforts at finding and exploiting the seam between different conservative orientations in this state, and emphasizing the dangers of allowing the state to control individual lives and decisions. Again, I don't think this represents a majority view in Alabama. But I think it would help some Alabama conservatives to frame their own arguments, and reassure some Alabama conservative politicians that there might be more than one way to appeal to local sentiment, or at least to quietly take a less restrictive or punitive view without suffering as much political harm. It would not be the key to immediate change. But it might make that "slog" shorter and easier. Unfortunately, national groups, which have, and jealously maintain, a lock on massive sources of cash, tend to think more in terms of their own worldviews than in terms of the ones they find and face on the ground far from the capital. Their own views are not especially libertarian in nature.

I'm not sure just how interested those national groups really are in achieving headway in states like this; they say they are and they have devoted some resources to that effort, but not a huge amount and not with much evidence of real sensitivity and adaptability. God knows we could use the help. Despite the very different picture I get here in a university town, which is much more optimistic, stories of young LGBT individuals in the state and their individual experiences can be harrowing. It would therefore be nice if that help were aimed at finding and making use of views on the ground, which here are less likely to be voiced in high-blown dignitarian terms and more likely to have to do with libertarianism and distrust of government interference in personal lives. If they are serious about helping, and about reducing the length and difficulty of the slog, I hope those groups will put a little more emphasis on this approach.      

[One further editorial note, since I have closed comments. A colleague has responded that he or she thinks that "strong" libertarian streak is not that strong, and certainly less so than in other states. I appreciate the response and certainly am happy to make note of it. I would say to that: 1) I think it's right that using the word "strong" was an error here. I certainly agree that there are states with much stronger libertarian sentiments. 2) That said, I have certainly seen and been struck by this strain here, and among my conservative students. (It is because it is striking to me, and voiced more often than, say, social conservative views, that I used the word "strong.") As I said in the post, I don't think it represents the majority view among Alabamian conservatives. But I think that making use of it would be more useful--would have more chance of reaching some Alabamian conservatives and creating at least a bit of a wedge--than just transplanting the national campaign here. If the comparator state is Nevada or Alaska, then yes, Alabama isn't much of a comparison in terms of libertarian sentiment. But it does OK compared to the amount of libertarianism in the places where I went to law school or practiced law, and it is those places whose worldviews inform the national campaigns, not Alabama or Alaska. At a minimum, a state-level campaign in such a state should be focused on reaching conservatives, not talking to other blue dots.   

Posted by Paul Horwitz on April 29, 2015 at 11:43 AM in Paul Horwitz | Permalink | Comments (0)

Sunday, April 26, 2015

Changes in the Legal Professoriate and in the Market for Law Schools

I am not surprised that my hope of doing a whole series of posts on how things have changed in legal education has been dashed. It's likely that the two points I made in my previous post on the subject are the ones I wanted to make anyway--that (1) they haven't changed as much as I might have figured, or as much as circumstances demand, and that (2) although the story of law schools in the past seven years has been one of responding (or failing to respond) to changing circumstances in light of the economy and possible longer-term changes in the legal profession, it's also important to note that student views and attitudes about this have changed more than once since the first generation of law students, the one that applied before the economic downturn and suddenly found itself brutalized by it, came and went. Before moving to the last week's topic, however--and perhaps one more post about our friend Dan--let me add two slighter observations.

First, there have of course been changes in the professors themselves. Others--especially our co-blogger Sarah Lawsky, who has done such great and time-consuming work on this, and others elsewhere in the legal blogosphere--have done much more serious and empirically grounded work than anything I'll add here. I want to make one impressionistic point having to do with the rise of VAPs as one of the main conduits for entry into law teaching.


One of the benefits of VAPs, fellowships, and similar programs is that people entering into law teaching this way have far greater access to excellent mentoring from the faculty of the law schools hosting them. (The faculty can benefit too, of course, from the new ideas and the energy of the fellows.) I'm sure individual experiences vary greatly and that some individual fellows find they are much more on their own than they expected. Still, it is clear that some schools really do provide substantial mentoring, especially about succeeding on the job market.

But I want to suggest that this benefit is not without its costs. I have read some truly excellent "job talk" papers in the past few years and seen some terrific talks, skillfully presented and carefully defended. But I have also noticed an increasing degree of standardization in those papers and talks. The papers and talks are, I think, to some degree products of advice from senior colleagues that certainly will help those fellows succeed in getting good entry-level jobs. But some of this advice may be better at teaching successful job-getting techniques than at imparting the best possible lessons for future scholars. The fellows may be getting better advice on picking issues that have not already been done to death or that are too big and broad for an early effort. But I am seeing a dramatic increase in the number of novelty claims from these candidates--few job talks today lack the claim that "this is the first paper to [whatever]"--and I think the number of claims certainly outstrips the actual amount of novelty in the papers.

And one can sense other words of wisdom behind these papers. Be political, but not too political. Be just counter-intuitive enough, but not on anything that challenges the strongly held priors of your audience. Make sweeping and potentially radical claims up front, but make sure your "fix" or "prescription" section at the end is narrow, and avoids offering legal reform suggestions that are as radical as the logic of the opening section suggests. Follow up on this advice by walking back such claims in the Q-and-A section of the job talk; and so on. In short, aim to intrigue and impress, but avoid provoking strong opposition and try to please or at least reassure every potential faction. Walk on water if you can, but never step on anyone's toes.

Of course this is impressionistic. But my sense is that all the VAPs at all the best schools are getting roughly the same advice, and that it is all tactical advice aimed at success on the job market. As tactical advice, it is probably sound. Certainly many of these hopefuls succeed magnificently on the job market, although it's hard to tell how much of this to attribute to the advice, and how much to attribute to the fact that those schools give fellowships to those most likely to succeed in the first place.

Nevertheless, I worry that while some of this advice is good, some of it may teach more about tactics--tactics for placement and for pleasing audiences--than it teaches about the best and highest academic values. It may encourage more standardization than is good for the scholarly enterprise. And I worry about what it will do by way of forming the long-term standards of judgment of those receiving such advice.

One often hears junior folks saying that they will follow certain advice of this sort just long enough to succeed--in getting a job, and then tenure--and then they will be able to do what they really want to do, say what they really want to say. More likely than that, I think, is that those values will simply be internalized and entrenched over the long run, and that today's applicants, as they enter the academy and gain seniority, will in turn apply them to the generation of applicants that comes after them. The overall effect may be to encourage a kind of orthodoxy and a fairly relentlessly tactical orientation, rather than instilling some appreciation for other academic values--modesty about novelty claims, not to mention writing about issues that are important and deserve further treatment but that aren't "novel" as such; idiosyncrasy and even audacity; refusing to offer "reform" recommendations at all, in a paper that does not require them or in which such recommendations would just be silly; writing unconventionally; unapologetically taking politically unorthodox stands; and so on.

Again, I appreciate that this advice has value, and I'm sure it is not the only advice the fellows receive. Still, I hope those giving the advice--who may themselves have had an opportunity to strike out on their own in various ways, to deviate from the norm, to be bold, and to be scholarly idealists and innocents rather than moving immediately to "experience" and cynicism--will give some thought to the possible downsides of this advice.

Second, another change for law schools is that they are moving substantially to recruit and serve different "audiences"--or markets--than the one they have conventionally served. As one recent blog post suggests, law schools may--many have already begun to--attempt to create more "non-JD" classes and programs. In the past that has included a proliferation of LL.M. programs. But now we are also seeing increasing interest in offering programs that (unlike the LL.M.) will teach non-JD students but not confer JDs on them at the end. Rather, they will offer "certificates" in a variety of legal areas in which some non-lawyers may wish to gain expertise, such as regulatory compliance. 

I worry greatly about such programs. In principle, I do not think they are unjustifiable. It is possible that they can indeed teach relevant skills to individuals who might learn from and make use of such programs in an area of growing concern to the professional and corporate world. At the same time, it is obvious that the rise in interest in these programs has to do substantially with the desire to find new revenue streams for law schools as the numbers of JD applicants decrease.

While I don't think that motive is illegitimate per se--if a financial motive results in something socially beneficial, I'm all for it--it does create the obvious concern that the tail will wag the dog. Not all such programs will be of equal quality or value. Some schools might simply jam non-JD students into ostensibly relevant JD courses without giving enough careful thought to the goals and substance of the program. Others may push marketing materials that make sweeping, overly optimistic claims about the value of such certificates. And there is also a risk that far too many such programs will be created, that there will be a race to enter the market and then a rush by everyone to enter it, and a corresponding glut of programs, many of questionable quality and many resulting in little professional gain to the individual enrolled in the program and little gain to the educational value and focus of the law school itself.

It would, in short, be a shame if law schools bought themselves some extra time and revenue, but ended up recreating with these programs the very problems that they faced, and in many cases created, with the JD programs themselves. But I would much rather see far too "few" of those programs than even one too many. 

Posted by Paul Horwitz on April 26, 2015 at 01:36 PM in Paul Horwitz | Permalink | Comments (0)

Friday, April 24, 2015

Congratulations to Rick Garnett

The dean of Notre Dame Law School announced this week that our good friend and co-blogger Rick Garnett has been approved by the university administration as the law school's newest endowed professor. Rick will be the Schierl/Fort Howard professor at the Law School. I know Rick will be particularly pleased because the chair's previous occupants were two giants at Notre Dame: the great legal ethics scholar Tom Shaffer and the late Bob Rodes, who wrote lasting works in jurisprudence and many other areas. Both were friends and mentors to Rick, and I'm sure that it means the world to him to follow in their footsteps. Rick is a prolific scholar and public commentator, a much-loved teacher, and a total mensch--and, last but least, an active blogger, both here and at Mirror of Justice. The honor is well deserved. Mazel tov, buddy!

Posted by Paul Horwitz on April 24, 2015 at 11:35 AM in Paul Horwitz | Permalink | Comments (0)

Thursday, April 23, 2015

How Things Have Changed

Dunce that I am, I set too big a topic for our anniversary posts this week: how law teaching, and law schools, have changed since PrawfsBlawg got started ten years ago. That's a book, not a blog post.

And yet...Although one could say a lot about this topic, on second thought I wonder if things have really changed that much. The environment in which law schools operate has changed dramatically, to be sure. And there have been interesting innovations in plenty of places--some for the good, others perhaps not so much. There have been important changes in how one becomes a law professor, but I'm not sure that who becomes a law professor has really changed: it's more a case of same cohort, different route. And if one asks the fundamental, global question--have law schools, taken as a whole, changed significantly in the last decade?--I find myself more inclined to answer "no" or "not much" than "yes." In one sense this is not a surprise. One can always count on institutional inertia. At the same time, given all the changes that are arguably necessary, and all the incentives to change, I find myself struck, if not actually surprised, at how little transformation there has been on the whole. 

I can't or at least won't try to justify that conclusion in any detail. Instead, let me offer a few bite-sized observations about interesting changes I have seen. I hope to have the energy and diligence to discuss several changes over several posts, but I'll start with just one. Perhaps the most interesting change, from my perspective as a teacher, is the backward-and-forward shifts in the student body that I have seen, especially since 2008. I taught Legal Profession, aka legal ethics, throughout this period. Unsurprisingly, it turned out to be the best of my classes for learning something about students' attitudes toward law school and legal practice, in a way that distinctly altered my approach to the course.


That class involves a "problem"-based approach. Around 2010 or 2011, I had a class that resisted the exercises all semester. It took a while for this sense to hit home for me. Still, being a highly responsive and sensitive teacher, I asked the students (somewhere around the last week of classes) why this was. Their answer was that, given the difficulty they were having finding jobs at all (they did, but the number of people graduating with jobs in hand was definitely way smaller than in other years), they just couldn't put themselves imaginatively in the shoes of a practicing lawyer, even for purposes of a classroom exercise. It is, of course, entirely relevant not only that they were finding jobs hard to come by, but that these were the students who by and large had applied to law school before or at the outset of the economic downturn, before the full extent of its effect on the legal profession was clear. The difference between what they had expected to reap as a result of going to law school and what they were actually getting was substantial, painful, and embittering. Without wanting to bad-mouth or single out my own institution, doubtless they also found our own recognition of and response to these changes wanting, and this was further cause for bitterness. 

I have always included some discussion of law schools and legal education in the ethics course, but that response was certainly a wake-up call that more was needed (outside of class too, of course, but that's not my focus here). I began opening the course with a couple of classes dedicated to law schools, the "law school crisis," and changes in the legal profession. At least once, I assigned Brian Tamanaha's book. I tried to learn more about their expectations and how they had been met or dashed so far in their law school experience. I devoted a solid class to soliciting all their complaints about our law school in particular, and made them a deal--I would share the list of complaints with the administration, urge it to address these things, and work directly on some of the issues, and they would commit to the exercises. 

I have kept doing that, and I find it useful, both for the students and for me. It's a very long list of complaints (and, again, I'm not trying to single out or embarrass my own institution; the list would be similar at other schools, and I was asking for criticisms, not praise). Some of the items change, with new and different problems emerging as the front-runners. And I learn a lot about my institution that I might not otherwise know. Professors have a duty to understand their institution and attempt to reform it as needed, and this process certainly brought that home to me. The students handsomely keep their end of the bargain and, I think, get more out of the class as a result.

But it wasn't until the last year or two that I began to realize that the student body had changed yet again. My students now come in much more cognizant of changes in the profession, narrowed opportunities, and so on--thanks, in some measure, to all the blogs focusing on the "law school crisis." Their plans for after graduation are generally far more specific, more closely related to their pre-law school jobs (if any), and more realistic. They are not cockeyed optimists, but neither, on the whole, are they either deeply pessimistic or particularly bitter. They are, I think, more committed to the process of legal education itself, more willing to participate, and less likely to think of themselves purely as purchasers or consumers of a service. That doesn't mean they are wholly content with the curriculum as it is, I hasten to add, and certainly the list of complaints is still long. But the gulf between their expectations and reality is much smaller.

These students remind me much more of my father's generation of law students and lawyers than mine. I graduated from school in an era when law schools were still very much way stations for twentysomethings who weren't sure what they wanted to do with their lives (a venerable tradition: read Learned Hand's description, in Gerald Gunther's biography, of why he went to law school). We expected that we would graduate with good job offers in hand; although there was a definite dip in the legal economy around the time I graduated, and it did have an effect, virtually all of us did. (I should add that I snuck into highly ranked law schools, and of course that made a difference too.) We were, on the whole, a distinctly risk-averse cohort; that's why we went to law school. Compare that to my father's generation--specifically, his fellow cohort of Jewish lawyers, at a time when Jews were still largely excluded from the big firms. They were a much more practical, entrepreneurial bunch. They were, in fact, the generation that cracked open the law firms and changed legal practice from without and within the old firms, changing some, killing some off, and doing much to get rid of assumptions about the gentility of the profession altogether. My students today are certainly not the same as that group in all respects. But their attitudes, expectations, and energy are far closer to it than my classmates and I were. 

To be clear, I don't intend any of this as a good-news story. As I said up front, I think law schools have changed less than one might expect given changes in the profession, and less than they should. I think this group of students is more realistic in its expectations than students were around 2010, but I don't know whether this is because the law schools are being clearer and more candid in their discussions with prospective students or because other, better sources of information are now out there. I do think this cohort is less likely to be bitter and angry with the law schools, less likely to be a fertile source for a new generation of angry online commenters, and I find that interesting and worth pointing out. But I draw no conclusions on that basis about whether they have cause to be angrier than they are. They certainly still have a long list of changes they would like to see; it's just more likely not to be expressed as if it were a bill of particulars. What I have found most interesting and educational from a personal perspective, I think, is the simple experience not only of having the student body change, and realizing that my teaching materials and my approach to the job inside and outside the classroom have to change along with it--but of then realizing that the changes I found most striking five or six years ago have transformed yet again, and will keep on doing so.

The lesson, really, has been one of those that simply comes with enough time on the same job. It may be possible to keep doing the same thing year after year, keeping the same old lecture notes with a few occasional changes penciled in to the margins, and the substitution of a somewhat outdated cultural reference (Taylor Swift, say) for a seriously outdated cultural reference (I've thrown out all my Christopher Cross references). But I don't see how. The students--their motivations, their expectations, their likes and dislikes and complaints--change, and then change again just as you've adjusted yourself to the first change. It's not enough to think in terms of adapting in light of the "law school crisis," as if it represents a single end-state with a uniform reaction to it. Within that general rubric, there have already been a couple of distinct generations of students with very different responses to it. If you want to reach the students where they are, you have to adjust to the fact that that location will change every few years. Of course that seems obvious; doubtless it is obvious to most people, and I'm just unusually oblivious. But actually experiencing it over the course of a decade has been instructive. 

Posted by Paul Horwitz on April 23, 2015 at 01:50 PM in Paul Horwitz | Permalink | Comments (0)

Friday, April 17, 2015

No Country for Old Men: Blogging After a Decade

On this tenth anniversary of Prawfsblawg, I'd also like to think and talk a little about how blogging has changed in that period, at least from the perspective on one blogger. My answer is " it has changed for the worse," but I admit up front that much of this has to do with my own experience, and the simple fact of doing it for ten years. 

My assumption when I started here at Prawsfblawg was that I would have a potpourri of subjects. Certainly I would talk about legal questions, especially those within my field of scholarly study. Certainly there would be a good deal of discussion of current events, generally legally oriented events, and the posts would sometimes be on the politics or substance of the issue itself and sometimes would be confined to legal analysis. And, as I noted last week, I assumed that there would be a good deal of discussion about the life of the law professor. I thought--and I think I wasn't alone in this--that I would also write about pop culture. I love music and am a more-than-occasional TV addict (House at the time, Archer now, and always the band Porcupine Tree and its leader Steven Wilson); I figured there would be fun opportunities to talk about and recommend various movies, TV shows, and bands that I loved. That was one of the main motivating factors for me in deciding to join the blog. Finally, I figured there would be opportunities to promote things I was working on and/or to share works in progress as they developed. 

A lot of that didn't happen for long. (Not the self-promotion: that always happens. Did I mention that Administrative Professionals Day is coming up, especially if you're looking for a nice gift?) Pop culture was the first to go. Back when I blogged a lot it was squeezed out by other subjects; it also turned out I was less motivated to write this stuff than I thought, and to some degree worried about having too many voices or not being "serious" enough.  I was often too deliberate to blog about current events: the pace of the blogosphere is such (or at least feels that way) that if you don't jump on the topic right away or spend too much time trying to come up with a definitive post, you end up feeling as if it's already a cold topic. Similarly with writing about scholarship, especially about new draft of published articles by others, which I also anticipated doing a lot. I've never been entirely comfortable just saying "read this"; I prefer to add description and especially analysis and some judgments about the piece and won't do that until I've read most or all of it. So I was always falling behind on that front as well. I envy the aggregators, who have locked in a position in the blogosphere that enables them to do useful things (especially Larry Solum's blog) without generally requiring a deep reading. With politics, I got the sense that over time those who were most likely to blog about this subject consistently were either sufficiently motivated by partisanship or ideology to want to keep doing it, or had some pet issue or hobbyhorse that they would gladly ride into the sunset, no matter how often they had ridden it in the past. I answer to neither description, and again there was the problem of blogging substantively about the issue quickly rather than dawdling. 

Writing about law school itself, and the life of the law professor, has proved especially and increasingly difficult in the past few years. I certainly wrote many posts on law school issues at the height of the economic collapse, including the law school crisis, around 2010 to 2013, give or take (and note that I got to the party late, although not incredibly late). I'm glad I did, on the whole. Certainly law professors are obliged to stay current on these issues and take responsibility for them. That is true even when the online conversation is less than ideal.

That said, it was a very "hot" topic, and one with a large number of deeply committed, often angry commenters and writers of their own blogs. Dealing with that, and especially administering comments so they weren't overwhelmed by nastiness, or letting the conversation go on without you even if commenters were insulting you--or others on the comment thread--takes some fortitude and energy, and I did not and do not have enough of either quality. The discussion was full of people eager to tear strips of one another, folks who strongly believed that if you're not with them you're against them and are ready to fight over the least departure from their position, people who repeated themselves ad nauseam, and windy predictors of imminent disaster who, like the leaders of apocalyptic cults, were constantly (and silently) revising upwards their predictions. Dealing with these challenges is a moving target: talk about law schools without talking about what and how they teach and one person calls you names; talk about teaching and another calls you names for not focusing on the jobs; focus on the jobs and someone else accuses you of deliberately covering up talk of scholarship and its problems.

I still read a lot of blogs and blog posts on these issues, including some whose writing I find vicious or overdone or self-parodic. Some of them have gotten much weaker in content, and I can usually limit myself to the headlines while avoiding one more sarcastic personal attack on this or that person. But both a sense of academic duty, and respect for those who keep studying and writing about these issues--including some I generally disagree with or find obnoxious--have committed me to continuing to do so. But I don't have to write about it myself if I don't want too, and generally it's not worth it. 

Then there is the question of anonymous commenters, especially on this topic. My position used to be fully supportive of anonymous commentary, with the caveat that the less identifiable a person is, for instance because he or she doesn't use a clear and consistent pseudonym, the more one can and should discount what that person is saying. I was not inclined to get rid of comments altogether and questioned the decision of some blogs to do so, when the exchange of commentary and views is so much a part of the blogosphere. Now I am much more comfortable closing off posts to commenters--there are plenty of other places they can talk, and those people who get strangely outraged by being excluded or think they have some kind of right to comment on someone else's blog are not worth talking to anyway. If the post in the least touches on law schools, I am almost certain to do so. Beyond this, moreover, the level of nastiness among anonymous commenters is today very, very high. Not only anonymous commenters, of course--some people come pretty close to this level despite using their own names--but especially them, and it is more irksome coming from them.

The usual justification offered by these individuals is that they blog anonymously to avoid any job consequences. I think this is one part true and three parts bullshit. I respect the general concern that an employer might punish an employee who writes innocuously on some subject, and the desire to comment despite that--hence the anonymity. But the possibility of avoiding this problem by commenting anonymously is not the same thing at all as the question of how one writes as an anonymous commenter. Plenty of anonymous commenters are either total jerks--hostile, combative, vicious, personal, sometimes much worse--in real life or feel some motivation or latitude to be jerks online. (Really, though, there is no such thing as an online jerk. If you're a jerk online and part-time, you're a jerk, period.) It's one thing to sympathize with someone who says that if not allowed to comment anonymously, he or she will be subject to arbitrary dismissal by an employer even if the comment is innocuous, or civil, or tough and brusque but fair. Obviously, however, the understandable "employment concerns" justification doesn't apply to those people who think anonymity gives them the freedom to behave like assholes, because they're angry or just because they can. Some of them say things that no sensible professional (and they often claim they are professionals) would say under his or her own name out of concern for besmirching his or her professional reputation. If they did write in this manner under their own name, the firing would be for very good cause. They overheat or ruin perfectly reasonable conversations and hurt the whole online discussion.

I am willing to learn even from them, and it's certainly true that an unnecessarily hostile and personal comment may nevertheless offer a valid criticism; it should not be disregarded just because the writer is unpleasant. I've tried to take some of those criticisms on board and I still at least peruse some blogs by anonymous writers (though not many, and the quality of their work and certainly their level of basic decency is often very low.) But I am more than happy to block a comment, ban an asshole commenter from the site altogether and permanently, without multiple warnings and despite their arguments that they didn't say anything too terrible, and so on. I have come closer to Dan's aggressive position, although I still think it was too aggressive and that he often erred by pursuing fights with these individuals or threatening them before finally blocking them. Their rationalizations for being anonymous and uncivil are generally weak, self-serving, and dishonest. The truth is that they act like assholes because they like it. I am more than happy to let them have no part in the conversation at my blog and to monitor the comments for such people, kill their comments, and kick them off. I'm not inclined to reveal their identities, and I definitely am not fond of the idea of threatening to reveal them without following through. But I don't think they have any right to anonymity or to any time or space on my blog, and frankly I think that in a few cases the legal profession would be better served if their identities were revealed. I certainly have no interest in playing to this particular gallery, flattering them, or basking in their praise; would that this were so for some other writers.

Their rise had some good effects for legal blogs, I think. Again, some of their criticisms were apt; some (but far from all) of the work they did on the law school crisis was good and revealed new issues and arguments; and they encouraged others to acknowledge and think or write about these issues. They were sensitive to blog posts that went too far in being self-serving or lacking a sense of self-awareness about the "First World problems" aspects of blogging about one's life as a law professor, and although they have always gone overboard on this front, I cannot say all the chilling that has taken place around this subject is a bad thing. But the overall effect has been a swift coarsening of discourse and rising of temperatures in the legal blogosphere. This too is one reason I blog less.

Another factor is the rise of alternative media. Many of the things I enjoy writing about--especially pop culture, but also current events and politics and even legal issues--I can do at Facebook for a large but more selective audience. That takes some of the winds out of my sales as far as blogging is concerned. I despise Twitter. Any medium that limits posts to 140 characters, that features endless arguments based more on invective and gotchas than on reason, that plays to the writers's own supporters and their collective priors and prejudices, and that in many cases mistakes tweeting for engaging in political action is not something I'm interested in. But it has certainly given the blogosphere a run for its money and many law profs have taken advantage of it. Still, the existence of Facebook, at least, gives me an imperfect alternative to blogging and all the tsuris that it involves. And more generally, the whole environment of online discussion and "journalism" has gone downhill, in my opinion. I will not bother enumerating the usual complaints. But I find I am happier and wiser, and often have smarter answers to current public policy or political questions, if I read Marcus Aurelius or Herbert Wechsler or Noel Annan than if I read the latest clickbait or political junk from Gawker, TPM, The New Republic, The Atlantic, Raw Story, etc.       

Finally, there is the simple, happy fact of having done this for a decade and having grown older. Unless you have more energy than I do, or are a hobby-horse rider on some issue, blogging is a young person's sport. Two kids, and five operations in the past eight years with three more likely in the next couple of years, have slowed me down some. Service obligations go up the longer one is at the university, and in my case some local political and university commitments have also taken up more of my time. Although I like writing about law and about life as a law professor, my slight growth in seniority, if it is not generally apparent to me, makes me more hesitant to write some things, at least if I am going to criticize particular junior scholars for, e.g., making overinflated novelty claims in article abstracts. Mid-career life as a law teacher has its interesting elements and some of them are worth writing about--for example, the degree to which teaching and dealing with students, always an important and enjoyable part of the job, becomes more important, involving, and moving over time. But on the whole I have written many posts about many aspects of law prof life and I don't want to repeat myself endlessly (a little is fine!) about these subjects. Journalists find some typical breaking news stories exciting the first few times they do them but eventually wear down on general-assignment daily stuff that they've done a hundred times before; the thrill is gone. One can feel that way about blogging too. I admire those whose energy and commitment has stayed high for a long time, but I'm not one of them. 

All this has left me somewhat dispirited about blogging, especially given my dissatisfaction with online discussions, "news" sites, and so on altogether. No doubt some of these concerns and other factors, such as poor health, are personal to me alone and have nothing to do with broader trends or predictions. Others are more widespread, however, and so may suggest forthcoming changes, or an absolute decline, in legal blogging as a whole. I'll come back to that issue in two weeks. In the meantime, it would not do to offer up such a gloomy post without saying how much I have enjoyed being here for the past ten years, how much I have learned from others (including anonymous commenters!), the pleasure I've occasionally gotten for writing something that people found useful or interesting, and all the other benefits of being at Prawfs.    

UPDATE: A correspondent, who had some kind words for this post, points out to me the irony of calling the post "No Country for Old Men" when women face many of these issues in spades. For what it's worth, I did have some concerns about this when I fixed on this title, although I decided that the title was a good one and I didn't want to change someone else's writing. The correspondent is right, though, of course, both that women who blog, including law professors, regularly have disproportionate additional claims on their time (in my case that is supplied by the medical issues; without them I surely would have been willing and able to blog more in recent years), and that many (not all, in fairness, but still far too many) of those anonymous commenters who have a self-indulgent habit of nastiness are more than happy to express that nastiness in highly gendered terms. One more reason to doubt that "I worry about employment consequences" is a full justification for anonymous commentary, or at least for its content; and one more reason that one should have no compunctions about scrubbing one's own space of objectionable comment.

I should also add something that I meant to put in the post: I don't comment anonymously and, as I've written here before, I think that on sites or discussions having anything to do with one's academic profession, law professors--tenured or otherwise--should not blog or comment anonymously. I suppose every rule has exceptions, but I would treat this as a strong presumptive rule. Given that we are paid to write and speak on legal issues, and that as academics we have some more general responsibility or interest in writing about academic matters more generally, I think we should do so under our own names, period, if what we are writing about has anything to do with academic matters. Anonymous commentary by academics on academic issues, to me, seems inconsistent with academic duty or accountability. Of course, one may choose not to blog or comment at all if one worries about the consequences of doing so under one's own name.  


Posted by Paul Horwitz on April 17, 2015 at 11:04 AM in Paul Horwitz | Permalink | Comments (0)

Thursday, April 09, 2015

"The Religious Geography of Town of Greece v. Galloway"

I have a new paper up on SSRN. The article, "The Religious Geography of Town of Greece v. Galloway," is forthcoming in the Supreme Court Review. Two notes:

1) Although I take a position on the case itself, the main point of the paper is simply to urge law and religion scholars to make greater use of the literature on geography, and specifically on the geography of religion. Scholars elsewhere in the law have done very interesting things with geography; indeed, the paper was inspired by a talk by Richard Thompson Ford, who among other things wrote an important paper on the relationship between law, geography, and race. Some writers on law and religion have been similarly influenced by geography, and influential in turn: I was particularly indebted to various articles by Adam Samaha, Richard Schragger, and Mark Rosen. But I think church-state law--which often involves matters of jurisdiction, sovereignty, scale, and other matters for which geography is relevant, and whose leading metaphors, such as the "wall of separation," often betray the importance of space and place in this area of law--is especially open to geographical analysis, and that much more work of this sort can be done in our field. In addition to the book by Roger Stump that I linked to above, there is quite a fertile literature on the geography of religion, including its impact on the history of American church-state law, as in this book, and its contemporary relevance, as in this book. Whatever my colleagues think of my answers, I hope they will do more to make geography an important element of the questions they ask. 

2) How pleasant it was to turn to a nice, uncontroversial area of church-state law! Compared to the heated current controversies over religious accommodation, working on legislative prayer felt like a trip to the spa. I have a small, in some ways tentative piece on the Indiana RFRA debate coming out in Commonweal Magazine; the online version is here. As with the Galloway article, I take a position in this piece, but for the most part my own preferred resolution is secondary and I make clear my view that a variety of reasonable positions and resolutions are possible. (That this is so is, to me, one reason, although not a dispositive one, why we should be open to the notion of judicial balancing here.) The main topic is my deep disappointment with some aspects of the public debate so far, which has exhibited all the subtlety, care, and calm that one would expect of a discussion that has played out on Twitter and the many online sites whose main purpose, other than generating clicks, is to rally the already-persuaded.  

Posted by Paul Horwitz on April 9, 2015 at 09:02 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, April 08, 2015

New Tulsa Law Review Books Issue

Thank God for the Tulsa Law Review, which is carrying on the long tradition of running book reviews in legal academic journals. As I've complained before, fewer law reviews are doing so these days. And it's too bad. That's especially true because it seems to me like an unusually fertile time for law books, and thus for book reviews. Notwithstanding this post, I think a lot more books are emerging from the legal academy these days, both with academic presses and trade presses, and more and more from relatively junior professors (who, having come through doctoral dissertations or fellowships, are not exactly starting from scratch anymore). I'm delighted, and there's a lot of good stuff to read these days. In many ways, it's much more exciting than anything happening in the law reviews. Go figure. If nothing else, law reviews that maintain web supplements ought to be using that space to include more book reviews, by profs and students. Thank goodness some new sites are filling in the gap a little. In the meantime, kudos to those major journals--Michigan, Harvard, Texas, BU in a slightly different ways, and a couple others--that are carrying on the tradition, and I hope more places will join them, cite counts be damned.

Tulsa's annual book review issue format is fairly new and professors Ken Kersch and Linda McClain are running it. It's terrific, and the new issue is very interesting, with great books and great matchups of book to reviewer. Here's the table of contents, with links to PDFs of the reviews themselves. Full disclosure-cum-sales-tactic: There's a review of my book, First Amendment Institutions, which makes a lovely gift for Administrative Professionals' Day, in the issue. The book is what it is, but the reviewer, John Inazu, is top-notch and a hell of a book author himself.    

Posted by Paul Horwitz on April 8, 2015 at 08:55 AM in Paul Horwitz | Permalink | Comments (0)

Ten Years With Prawfsblawg

Thanks to Howard and others, including some original Prawfsblawggers, for leading off our anniversary month. I am personally stunned--stunned and delighted? stunned and depressed? stunned and old? well, let's just stick with stunned--that it has been that long. 

It's difficult to spend any time being retrospective about Prawfs without ending up reflecting on two or three main subjects. First, last, and always is our friend Dan, whose idea, vehicle, and labor of love this blog was. Second is pondering what has changed about law-blogging in the last ten years, especially the last four or five. And the third, not to be too grim about it, is whether law-blogging has much of a future.

I find the second question most interesting. I have had doubts in the last couple of years--not so much about blogging's future in general or about its future, although I have been pushed to think more about this lately, but about its role for me certainly--and about the nature, quality, and value of online writing altogether. That is one reason I have blogged less lately, although there are other and better ones. But I'll try to say more about this question over the next few weeks, as--I hope--various other Prawfs folks also chime in with some reflections on the blog and their experiences with it.

This leads me back to Dan in two ways. The first is simply to note that when Prawfsblawg started, it very much reflected the people who were on it and their particular stage of progress through academic life. Many of the then-popular, and in some cases still-popular, blogs were aggregators; some were subject-specific; the Volokh blog, most of all, was substantive but catholic in subject matter. (Definitely a small "c.") Prawfs was closer to the VC in writing on various subject matters rather than aggregating or being subject-specific. But we were also interested in writing about what life as a law professor was like: what it is like to look for a teaching job, to teach, to do your first or third class prep or to tear up your first few years of notes and try to start again, to look for hot topics for research, to seek some notice, to seek tenure, and so on.

I suppose doing this all on a blog constituted a topic of its own: how to do these things and talk about them, how to seek a public career in public, to navigate a relatively new online world without steering into the shoals too many times. All this was then a safer topic than it is now. Although I take some issue with this and think there is surely room in the vastness of the blogosphere to talk about life as a law professor, I appreciate the reasons this has rubbed some readers the wrong way, as a kind of cavalcade of first-world-problems. That became more viscerally apparent as the legal economy suffered and students and recent graduates along with it. And although, again, I am inclined to push back against some of this, or to simply write about what interests me without regard to those potential objections, I have also over the years found many of those criticisms instructive, in bulk more so than with regard to specific comments and criticisms, which ran the gamut from serious constructive criticism to simple snark. I'm grateful that I had the occasion to write about some of these issues and experiences before the online environment became more toxic. They were interesting topics to me and proved to be interesting to others. Junior professors today have less latitude to write online about what they are experiencing and learning. This too, mind you, is a first world problem, real but not really all that important in the scheme of things.

On such matters, Dan was an interesting mixture of ambition, energy, and guilelessness. He loved what he did: loved his students, loved adjusting to teaching (and I think it was an adjustment), loved pursuing his ideas and getting excited about those of others. It was natural for him to write about all this enthusiastically. (He did everything enthusiastically.) He certainly loved the blog, and the forum it provided for him and others to join the broader conversation, which he pursued just as energetically off-line, in the social world, as he did in writing here. And he figured if he loved it, others would, or might. If, in later years, the commentary grew sharper and less patient, and a larger number of commenters were inclined to be harsher toward any law professor with the temerity to write about his or her professional life and its challenges and rewards, I don't think that slowed him down much or chastened him. Some commenters he would befriend and engage, others he would fight with, and still others he would simply shut down--sometimes quite rightly, sometimes too precipitously in my view. But none of this would slow him down much. It certainly would not stop him from sharing whatever he was enthusiastic about, whether it was an issue in criminal law or theory or a quotidian experience in the life of a law professor.

As I have suggested, others of us are perhaps more chastened or enervated by the changing environment online--sometimes in healthy ways that taught us something about respect for the audience, and sometimes in a less healthy way, a simple desire to avoid the tsuris. I don't think those issues much preoccupied Dan, although they do me; and if thinking about those issues leads me back to Dan, it's because thinking of anything having to do with this blog leads me back to him. We don't talk about his absence every day here. That is something of a deliberate choice, and the choice itself was a tribute to him. We hoped, and still hope, to memorialize him by trying to carry on with the blog with something like the energy he brought it. That we still do so, or try to, is something we owe largely to our guest bloggers, who carry on with great energy, and to our co-blogger Howard Wasserman, who more than anyone else has kept the blog going. In doing so, we have found that a "Dan," as a unit of energy in blog administration and in life, is worth about ten regular people. Carrying on, and trying to do so enthusiastically, is something we do to remember and emulate Dan, but it ain't easy.

It feels good, in some ways, to remember him in that way--to try to make sure that something of the huge spark he brought to life is still burning. But it's painful too. I've been rather ill this year and generally beyond tired. And I find that it's in some of the best and worst moments--those frequent moments in which everything is just too exhausting, and those rarer moments in which everything is going well, or something exciting or wonderful or hilarious happens--that I am most likely to think of Dan, to see his face, and to wish he was around to share the good and to lend me a little of his energy through the bad. That he isn't here to do so, and especially to share the good moments, his or ours (and if he was incredibly ambitious for himself, he was just as ambitious for his friends), and cheer us on, is a crime--a literal crime, certainly, and none of us has forgotten that. But in so many ways. I miss him. And, doubts or exhaustion notwithstanding, I'm incredibly grateful that he turned some of that incandescent Markelian energy my way, and invited me to try to share something of both my professional interests and, well, my life here on Prawfs. Thanks, buddy.

More to come. Years ago, a co-blogger recently reminded me, I offered a joking picture of what blog life might look like as we moved naturally into later stages of the professional journey. Some six years later, I'd like to follow up and consider what that part of it has actually been like. In the meantime, I wish a happy tenth anniversary to everyone, and especially to my absent friend, who made it all possible. 




Posted by Paul Horwitz on April 8, 2015 at 08:07 AM in Paul Horwitz | Permalink | Comments (0)

Sunday, March 08, 2015

What is the Real Takeaway of this Fine Op-Ed on Free Speech and Selma?

My colleague Ron Krotoszynski has a fine op-ed today on the First Amendment and the Selma-to-Montgomery march. I have put some key excerpts after the jump. The basic message is that modern free speech doctrine would render such a march unlikely, because in the decades since then the Court has developed a proliferating public-forum doctrine that enables courts and governments to do less to protect and "advance[ ] the First Amendment's core values." (The op-ed uses "1st," not "First," but I consider that a dreadful editing choice on the part of the newspaper.)

Judging by, e.g., Facebook reactions, I assume the takeaway for most people reading this op-ed will be something fairly conventional, along the lines of "free speech is good," "public forum doctrine is bad," and "the courts have been less protective of free speech--real free speech--since the Warren Court era." I assume somewhere in the mental picture painted, many will think of Ferguson, which Ron discusses very powerfully in the full op-ed, but Citizens United too. 

I'm not sure that's the right or fair takeaway. I like Ron's op-ed quite a lot, but I think the right message to take from it, and what he reports in it, is more technical and less sentimental than that. I would be more inclined to take something like the following messages from the op-ed:

1) Legal doctrine itself is problematic--necessary, perhaps, but problematic. Courts, being courts--that is, being an institution that exists to make and then rationalize and coordinate legal decisions in individual disputes--will insist on casting their rationales for decisions in judicially manageable form. Some judges, for various reasons, both good and bad, will insist on coming up with doctrinal rules and tests right away, before all the facts in a particular area of human conduct are in; that doctrine may or may not last, and may or may not cause major problems down the line. Others will do it only after some time has passed and a number of decisions are under the judges' belt. Inevitably, though, over time, a series of more or less mechanical rules, regimes, factors, and standards will be built up. In many respects, this is a good thing. But it will ultimately be harder for judges to make sustainable unmediated decisions in individual cases, or less likely that all but a few mavericks will do so. For the most part, that's just not who and what modern judges in such a regime are.

2) Thus, if you are going to rely on a judicially interpreted First Amendment to do most of the work in setting speech rules and governing public discourse, prepare to be disappointed or underwhelmed. The age of the heroic judge will pass, and the bureaucratic First Amendment will remain in its stead. Perhaps that is a good thing, on the whole! Perhaps we think of the "age of the heroic judge" because those judges stand out in history, and because Americans are incurably sentimental, ahistorical hero-worshippers. A better picture of that era, with its few heroic judges and its many average judges giving little or no First Amendment protection at all, would conclude that free speech is better protected on the whole by bureaucratic judges, and a bureaucratic First Amendment, than by a few sweeping and imprecise speech-protective decisions issued by a few eloquent judges. The bureaucratic First Amendment at least causes more judges to issue more speech-protective decisions more often, although those decisions will often be rhetorically underwhelming and mostly mechanical.

3) This is the regime we have had since the Warren Court. Despite the nostalgia we may feel for judges like Johnson (or Fortas, in Ron's op-ed--and Fortas is certainly a model of the judge who does much and speaks powerfully, but does little that can be used readily by other judges), this model has resulted in a net gain of free speech protection. More speech is protected more often and more routinely and predictably than in the earlier model--understandably, since there is now more mechanical doctrine, each case is not so novel, and the bureaucratic model does not rely as heavily on the heroism or politics of individual judges.

But it has achieved this net gain by making free speech law broader, more applicable to more instances of speech and expressive conduct, and more egalitarian, and that has costs of its own. It applies to everyone and everything! (Corporations included.) Naturally, given its breadth--given the managerial role it gives judges across a huge swath of speech and conduct, and the need to coordinate this role in a judicially manageable fashion--it has given rise to more doctrines like government speech doctrine or public forum doctrine. These doctrines often give government (and the courts) an escape hatch, in order to make the whole enterprise more manageable for both judges and government officials. We have thus achieved manageability at a cost. Modern free speech doctrine achieves breadth and generality of protection. But it is sometimes less protective on occasions involving what we used to think of as "core speech activities." We have gotten more speech protection in more places, but less protection when and where it "really counts." After all, deciding that something "really counts" is just not a manageable, mechanical, predictable task, and certainly not one for the average judge carrying out his or her function in a coordinated system of constitutional adjudication.

Thus, we have a modern free speech doctrine that is, perhaps, better for average cases and average judges, but not especially responsive to extraordinary cases or liberating for extraordinary judges. This is not a surprising consequence of assigning the whole machinery of free speech to the judicial institution. Whether it is ultimately a good thing or not is a genuine question, and the answer to that question is a difficult one and cannot simply be arrived at via moral or emotional sentiment.

I note briefly in conclusion that much of this story is almost certainly applicable to other areas of First Amendment doctrine, such as the doctrine of the Religion Clauses, which is increasingly egalitarian and increasingly uninterested in or unable to deal with extraordinary cases or ideas. It is probably applicable to other areas of constitutional law as well.           

Here are some of the key quotes from Ron's op-ed:

To mark the 50th anniversary of the Selma marches of 1965, we will replay the inspirational words of the Rev. Martin Luther King Jr., recount the courage of the marchers in the face of police brutality and recall the shock to the conscience that led to the passage of the Voting Rights Act. But we also should consider carefully an important question: Could a march like Selma happen today? . . . 

Today, it would be impossible to obtain a federal court order permitting a five-day protest march on a 52-mile stretch of a major U.S. highway. Under contemporary legal doctrine, the Selma protests would have ended March 8, 1965. . . . 

Starting in the 1970s, however, the federal courts began rolling back this idea [that, as far as I can tell, as long as use of a space for political speech and activity is not incompatible with the intended use of the space, it must be permitted]. A series of rulings erected what is known as the public forum doctrine, which lets a city, state or the federal government decide whether public property can be used for 1st Amendment activities. It also means that if courts do not designate a place a “traditional public forum,” government may forbid its use as a site of protest altogether. . . . 

Even in traditional public forums, government may strictly regulate the time, place and manner of speech activity. The National Park Service, for example, has created “free speech areas” and limited protests to them. Predictably, the federal courts have sustained this policy.

Likewise, local, state and federal governments have banned dissent near major political events, such as the presidential nominating conventions. . . . .

To be sure, governments permit large organized marches when they want to. But the more pertinent question is this: Must a government allow large-scale protests when it would prefer not to? . . . . 

Judge Johnson's opinion on the Selma march, in Williams vs. Wallace, advances the 1st Amendment's core values more effectively than today's anemic public forum doctrine. As he saw it, government has a constitutional obligation, grounded in the 1st Amendment, to make public property available to protesters. The burden of justifying any limits on protest speech should always rest squarely on the government. What's more, the federal courts should require government to tolerate speech activity unless it is fundamentally incompatible with the property's everyday use. Finally, speech activity that seeks to petition the government for a redress of grievances should enjoy the strongest claim to mandatory access to public property.

As we remember the epic marches in Selma and the legal reform they accomplished, we should also acknowledge how the courts have since hobbled our right to stage a protest of such magnitude. To truly celebrate the legal legacy of this civil rights milestone, we should embrace Selma's main lesson: Taking to the streets and other public spaces in protest is central to our democracy. 


Posted by Paul Horwitz on March 8, 2015 at 01:57 PM in Paul Horwitz | Permalink | Comments (1)

Friday, March 06, 2015

A Strikeout for ProPublica

I am a fan of the web site/operation ProPublica. It is a source of new investigative journalism in an age in which there is too little of it, and fewer resources for it, than I would like or than society needs. Certainly it has a political tilt, but I'm fine with that; it does good work on important issues.

But its piece this week on the Federalist Society is not its finest hour. Far from an investigative piece, it is just an interview with the author of a new book on the FedSoc. I look forward to reading the book, but the piece itself is not much of a contribution. Moreover, the framing of the interview is a little silly and a little overheated. And this line from the interviewer--"The Federalist Society doesn’t even make public its membership rosters"--is worse than silly; with its vaguely ominous tones, it ought to be an embarrassment to the good work done elsewhere by PP.

I will add that what I have seen virtually none of is "investigative" journalistic work on the newer, liberal American Constitution Society. Like the Federalist Society, it is not "secret" and not especially "secretive," although I assume it is not wholly transparent either. I assume plenty of the reporting could be done via publicly available sources, and of course I cannot say what more digging beneath and beyond those sources might reveal. Nor am I making any judgments about the relative power or influence of the ACS compared to the Federalist Society. But since the ACS's apparent goals at least appear to be roughly the same as the Federalist Society's apparent goals--to grow, replicate, have influence, and create networks of power--it certainly merits more serious and skeptical journalistic treatment than it has received so far, which seems to be none at all.  

Posted by Paul Horwitz on March 6, 2015 at 02:57 PM in Paul Horwitz | Permalink | Comments (0)

Wednesday, March 04, 2015

Book Reviews! Hallelujah!

Thanks to Orin, I see that a new online book review, The New Rambler, has been launched by editors Eric Posner, Adrian Vermeule, and Blakey Vermeule. It describes itself as reviewing "books about ideas, including literary fiction." In addition to Posner and Adrian Vermeule, Martha Nussbaum is among the inaugural reviewers. Commence bookmarking. And, as always, I will add that given the huge number of worthy books out there, the decreasing likelihood that good academic or trade-press books will be reviewed for large audiences in places like the New York Times Book Review, and increasing questions about the use and value of blogs, it would be great if all of us did more noting and reviewing of books. Law reviews, certainly, ought to devote more print space to book reviews in my view, and definitely ought to dedicate more online space to that purpose, and some have begun to do so. Welcome, New Rambler.    

Posted by Paul Horwitz on March 4, 2015 at 08:28 AM in Paul Horwitz | Permalink | Comments (0)

Audio Links: Alabama Law Review Symposium on the Voting Rights Act

This past Friday, the Alabama Law Review held its annual symposium. This year, the symposium marked the fiftieth anniversary of the signing of the Voting Rights Act. The speakers discussed its past, especially the civil rights activism--not least the famous Selma-to-Montgomery march, which will be commemorated this weekend across the country and in Selma itself--that helped bring about its passage; the current state of voting rights law, with panelists discussing, among other things, both the Shelby County decision and the pending Alabama Legislative Black Caucus case; and the uncertain future of voting rights. It was an extraordinary day. The topic itself was suggested by the students themselves, not the dean or faculty; that itself was important, showing both the students' willingness to acknowledge and confront our state's troubled (and, with respect to the marchers themselves, heroic) history and their commitment to voting rights now and in the future.

The speakers, including many of the nation's foremost experts on the subject, were terrific. Audio recordings of almost all of the talks are available on the Law School web site. I regret that the keynote address, by Judge Myron Thompson of the United States District Court for the Middle District of Alabama, is not available. Judge Thompson's talk was one of the most moving and eloquent addresses I have ever had the privilege of witnessing, and the rest of the audience clearly felt the same. I will not be surprised if it ends up altering the career choices of a number of the law students who heard it. I'm grateful to the Law Review and its editors, as well as the Law School's staff, for organizing the event, and to the wonderful panelists. Here's a rundown, with links:

Welcome & Introduction

Mark Brandon, Dean and Thomas E. McMillan Professor of Law Paul Horwitz, Gordon Rosen Professor of Law Johnny Wilhelm, Alabama Law Review

Session I

Jack Bass, Author and Historian

Session II

Professor Kareem Crayton, University of North Carolina School of Law

Session III

Professor Richard Hasen, University of California – Irvine School of Law

Session IV

Professor Franita Tolson, The Florida State University College of Law

Session V – Lunch and Keynote Speaker

Judge Myron Thompson, United States District Court for the Middle District of Alabama

Session VI

Professor Pamela Karlan, Stanford Law School

Session VII

Professor Samuel Issacharoff, New York University School of Law

Session VIII

Professor Guy-Uriel Charles, Duke University College of Law


Posted by Paul Horwitz on March 4, 2015 at 07:00 AM in Paul Horwitz | Permalink | Comments (0)

Tuesday, March 03, 2015

Some Questions About Randy Barnett's Latest Ref-Working Post

With another big ACA case before the Court, Randy Barnett has a new post returning to the subject of a number of posts, by him and others at the VC, during the NFIB litigation. He charges  that "the left" is newly engaged upon a "political lobbying campaign" aimed specifically at Chief Justice Roberts, consisting of a mix of flattery and threats, to secure what it thinks is the right result in King v. Burwell. I have some problems with, and questions about, Randy's post, but I want to offer a couple of caveats up front.

In broad terms, there are aspects of his post that I either agree with or find plausible. I agree that the mandate case was a trendsetter in recent Supreme Court advocacy. Without more knowledge--the behavior of the press and professoriate of the period between the 1930s and the 1960s, not to mention the Justices, does not seem entirely innocent of at least similar activity--I wouldn't call it unprecedented. But it does seem to have been influential in our own time. The mixture of academic work, social and traditional media commentary, amicus briefing, and contact with journalists, generally aimed at advocating for particular results in the case, was striking. The striking element was not the advocacy as such. It was the mixture of different platforms for making the same argument, and the sense that although some of those actors are assumed by many to serve different goals and follow different professional standards depending on the role and the platform (although those standards are much-contested), what we actually got was people like law professors writing in both scholarly and non-scholarly platforms, for uniformly non-academic reasons and in a way that disregarded those goals and standards. It was the sense, in short, that some professional actors, rather than acting as academics (or journalists), were engaged in a multi-platform political campaign. 

It's not clear that this approach worked. But the possibility that it did has made it more likely that the behavior will recur. That's especially true when we combine its potential effectiveness with a number of other factors: the (perceived) high stakes involved; the number of people with at least temporarily strong views on the issues and cases; the lack of clear standards of ethical conduct for both legal academics and a widening swath of news and opinion media; the potential personal gains involved (in reputation, influence, professional advancement, and ego-boosting effects of feeling like a player); and the belief that the other side is engaging in this conduct, leading to fears of being outgunned. I think some of this same cross-platform advocacy happened in Hobby Lobby too, and is happening or will happen again in King v. Burwell.

I personally find this sort of behavior--the mixture of fierce advocacy across different platforms, including academic and journalistic work that ought to be motivated by different goals and to follow distinct professional and ethical standards--distasteful, particularly where legal academics are involved. My reasons vary, but not least among them is that I have the luxury of prizing academic virtues and standards more than I do the results of particular cases. (Of course, all legal academics enjoy the same luxury.) I'm not sure whether Randy thinks any of the same conduct occurred on the right; I also don't know whether he thinks anything other than "working the ref" is ethically problematic. I know that my answer to both questions would be "yes": it did happen on both sides, and that it (arguably, assertedly) involved "working the ref" was not its only ethical shortcoming.  

That said, Randy's post raises a number of questions. (After the jump. I apologize for the length, but I didn't have enough time to write a shorter post.)  

1) What does he mean by "campaign," or "its?" (Or, for that matter, "the left?") Is he arguing specifically that there was a deliberate, coordinated strategy of conduct by "the left?" If so, among how many people? Is it likely that such conduct would occur only as a result of a continued, coordinated strategy? Is it even necessary? I would think not. As long as a few key actors behave in a particular way or make particular arguments, others will likely follow along. I don't know how many people crowd into Grover Norquist's Wednesday coordinated-campaign-planning meetings; nor do I know how many people receive their party's coordinated talking points of the day. But most people adopt the narrative of the day pretty quickly and more or less reflexively. This is certainly true, although not uniquely true, for both legal academics and journalists. We are no less susceptible to suggestion and no more capable of independent thought than anyone else. 

2) If Randy does indeed mean to suggest something like a coordinated, deliberate strategy of attempting to influence the Chief Justice, what is his evidence? As far as I can tell, it involves two data points and one assumption. The factual evidence is this: 1) "[W]e have reason to believe that the Chief Justice Roberts did change his vote after the progressive onslaught" in NFIB, suggesting that "the left" has absorbed this lesson and is acting accordingly once again. But the "reason to believe" that he offers is weak. The apparent leak he relies on alleges that Roberts switched his vote in that case. But the leakers present no evidence that Roberts changed his mind because of media pressure to do so. The leakers appear to suggest that he did. But they offer no evidence to support this claim. And, of course, there are good reasons to doubt their surmise that he was voting under the influence. For one thing, leakers generally have an agenda. For another, their surmises could just be wrong. Assuming arguendo that the sources are smart people, smart people are still capable of being mistaken, especially on matters with a high emotional and political valence. Indeed, I have met plenty of smart lawyers who are both overconfident about their own judgment and too ignorant of the psychological drivers of other people's actions (not to mention their own); these people may thus be more susceptible than others to erroneous judgments about another person's motivations. 2) The second data point is simply the actions themselves, in both the NFIB and this case.

That's where the assumption enters in. It's difficult to tell, and I acknowledge room for disagreement. But as far as I can tell, Randy seems to be making an implicit logical argument: The conduct he describes must be aimed at directly influencing Chief Justice Roberts in an improper manner. Why else would people behave this way and write what they have written? I see lawyers and legal academics drawing conclusions of this sort all the time online and in print. It seems to me that this kind of argument is pretty common for lawyers (and online commentators, many of whom, on the sites I frequent, allege that they are lawyers). It's a problematic kind of argument: it displays an unjustified belief that one can reason one's way to a conclusion, especially about other people's motives, based on some kind of logical reasoning or process of elimination. I may be wrong about whether Randy is making this sort of logical argument, and this sentence is not aimed at him especially. But I do think it's common, and betrays, among other things, an overconfidence about the power of logical reasoning, especially from limited factual premises, and an inadequate appreciation for the power of human psychology and the variety and complexity of motives for beliefs and actions.

In any event, the problem with such a conclusion in this case is that there are many other reasons why people might write these kinds of things, other than a simple primary intention to directly influence the Chief Justice or any other member of the Court. People write heatedly and politically because they are heated and political. They write about other people's motives because they care about them (too much, I would say) and are confident they can identify them. They accuse judges and others of acting in bad faith and urge them to act in good faith--by agreeing with them--because they believe, sometimes to a ridiculous extent, that their own views are so obviously right and their opponents' views so obviously wrong that disagreement must signal bad faith. While they are capable of acknowledging the complexity that might go into their own views and actions or those of their friends and forgiving their friends or themselves for acting inconsistently or with mixed motives, their empathy and imagination runs out where their political adversaries are concerned. They engage in moral sermonizing about the Chief, the Court, and everything else because they are moralists in an extraordinarily moralistic society, and one in which, to paraphrase Tocqueville, every morally charged political issue eventually becomes a morally charged legal issue and is subjected to the endless American pastime of moralizing; and also because the sermon is a classic American literary genre and one that most of us--even, alas, legal academics, who have no special moral qualifications and ought to realize it by now--engage in fairly frequently. They write passionately about the Court as an institution, its reputation and fitness and legacy and so on, because many politically engaged lawyers and journalists care deeply and sincerely about these things, albeit temporarily and inconsistently. 

Not least, the propensity of many journalists, lawyers, and legal academics to write in this fashion--telling the Court what it should do, and the rest of us what we should think of the Court if it decides a a hot-button case in one direction or the other--has to do with the fact that it's their job, sometimes their vocation, and this is the activity expected of them. Lawyers and legal academics write about legal and/or political issues because they care about those issues and get paid to care about them, because many sectors of the legal academy expect and/or reward (in various ways, financial compensation being only one) this sort of writing rather than clinical and dispassionate work, and because caring and writing about legal issues is both a professional imperative of sorts and a conditioned reflex. Commentators write heatedly and in a partisan fashion about politics and the Court because they want to, and/or convince themselves they want to; because writing a broadside is easier, temporarily more satisfying, and more likely to draw attention than writing a dry technical piece; because online writing is partisan, competitive, and driven by page views; and so on. To Johnson's dictum that no man but a blockhead ever wrote except for money, we could add other compensations: recognition, ego, invitations to speak in Las Vegas or Hawaii or Peoria, the satisfaction of partisan urges, the desire to please one's friends or rile one's enemies.

In sum, there are plenty of reasons to write partisan screeds for or against the Court or results in particular cases or the reputation of particular judges. Most of them are consistent with coordinated partisan conspiracies. But none of them depend on the existence of such concerted action. At least in this polarized partisan environment, people would write exactly the same words whether such a conspiracy existed or not. The supposition that the writing we saw in NFIB or Hobby Lobby or that we see today would only exist if there were the kind of "campaign" that Randy describes is far too thin; the evidence he offers is weak. One might respond that even if this is so, that does not explain why there has been such a combination between what is said in media outlets, what is said in academic work, and what is said in briefing. Again, I find these overlaps distasteful and worrisome. But the response is not true. Many legal academics are political and cause-driven, either all the time or in particular cases; many writers and politically engaged people of all stripes no longer draw sharp distinctions between different roles, different media platforms, and different professional or ethical standards; many communities and groups, online and off, encourage people with these views to mix and mingle.

I would add that in my view, even apart from professional contestation over how politically engaged legal academics should be, conventional standards of professional responsibility for legal academic work, intramural or extramural, are weak, and the rewards for massaging or ignoring those standards can outweigh the risks. Plus, everyone is convinced that the other side is doing it and that they had better respond in kind. I wish it were otherwise. But in this world, there are plenty of reasons for a law professor to mix one's academic work, one's writing for the general public, and one's work on or signing of amicus briefs. No "campaign" is necessary. I don't know whether one exists just the same. If it does, I haven't been invited to sign on to it, although given my small talents and large sentences that's no great surprise. But I don't think Randy's evidence or arguments on this point are especially convincing.

3) It would also help if Randy could describe which aspects of such a campaign are wrong, unethical, or outrageous. Perhaps it is only the purportedly concerted nature of the action that concerns him, or the attempt to "threaten" the Chief Justice. As I said, I don't think the evidence for a concerted campaign is very strong. And the second possibility raises a host of questions. Is it really always wrong to question the Chief's reputation or ponder his legacy? Why? If not, when is it wrong? If, on the other hand, it's not just one or both of these things that concern him, what does? What would he rule out of bounds?

4) Does Randy think all the examples he cites are equally strong? Some of them seem rather weak. For example, he writes, "To assist the Chief Justice in burnishing his legacy, The Hill helpfully provides a poll" of public opinion on the King case. Public opinion polls are pretty standard stuff, easy to write and engaged in more or less reflexively. It's a big stretch to see their very existence as evidence of an intention on the part of the news organ commissioning, conducting, or reporting on them to sway the Chief Justice. And Ian Millhiser? For one thing, does anyone actually pay attention to Ian Millhiser? Even if they do, is there much evidence that Millhiser writing a partisan piece about the Court is part of a campaign (as Randy notes, Millhiser's piece is "characteristically fervid," which is to say that he does this kind of thing all the time, "campaign" or no), or that he envisions Chief Justice Roberts as one of his readers? Millhiser has a book coming out; isn't he pretty clearly just involved in selling it?      

5) My final point concerns what Randy himself is engaged in doing. I'm not sure it contradicts any of Randy's assertions. Moreover, I find myself generally uninterested in charges of hypocrisy, which are common in American legal and political debate but often misused. Even if hypocrisy or inconsistency does not disprove a persons's arguments or factual assertions, however, it does tend to undermine the effectiveness of that person's arguments and rhetoric--especially the kind of moralistic rhetoric that is so common in American legal and political debate--and to raise questions of its own.

I consider myself to have some expertise on this question, and it stems primarily from being a parent. (At least where passive-aggressive conduct is concerned, being Canadian also supplies some expertise.) Like most children, my two kids routinely compete for seemingly scarce resources, including their place in their parents' affections, and regularly rat each other out for misbehavior. (In fairness, they're only six and nine; I hope to teach them one day to observe a form of sibling omertà.) Quite frequently, their arguments along these lines contain a certain measure of passive aggression and hypocrisy: my daughter revealing a confidence from her brother to tell us that he has divulged a secret, for instance, or my son running downstairs to report that his sister was running in the house. All of this, and other forms of argument as well, usually is packaged in a kind of passive, indirect way. The implication is that the child in front of me, even as he or she breaks one rule or another, is really just reporting what the other child did and thus should not be treated as an act of rule-breaking.

Similarly, the obvious question arises with respect to Randy's post: What is going on here? Randy argues that "the left" is attempting to influence the Chief by a mixture of flattery and threats. To the extent that the Chief sees Randy's post, isn't that post likely to operate in exactly the same way--by stiffening his spine, or moving him to resist this "campaign?" He writes that "the left" "once again risk tainting a ruling in their favor as being based on the very political considerations they themselves urge upon the Chief Justice." Doesn't such a statement risk being read as suggesting that a ruling agreeing with "the left's" preferred interpretation in King would be tainted, or seen as tainted by the public--and that, conversely, an opinion agreeing with Barnett's preferred interpretation would be seen as correct and independent, if not downright courageous? He writes that "the left's" current "campaign" on King is being conducted "with varying degrees of subtlety." Is it not apparent that his own post can be read in precisely the same way--as an indirect, passive-aggressive way of flattering and threatening the Chief by reporting on the attempts of "the left" to flatter or threaten the Chief? The answer is "of course," of course. 

None of that, again, means that Barnett is wrong in his charges against "the left," although, as I have said, I think his evidence is questionable. It does not mean that Barnett is intentionally engaging in a campaign of his own; I disclaim any knowledge of his motives. Nor does it mean that the kinds of writing he is talking about, and more particularly the kind of mixed multi-platform advocacy that I think is becoming increasingly popular, is a good thing. I think it's a bad thing, regardless of whether it is concerted or not or aimed at the Chief Justice or not. It worries and disheartens me especially when engaged in by legal academics. I support institutional pluralism. As such, I have no great problem in the abstract with the notion that some public law-oriented legal academics might have a different vision of the legal academic project, one that sees it as being aimed at achieving immediate social, political, and legal change in the world and views academic writing, amicus briefing, and public commentary all as potential tools toward that end. But I think criticism is also a natural aspect of institutional pluralism--and I have a critical view of this conception of legal academic work and professional standards.

I find it hard to imagine that Barnett is unaware that posts like this could have the same effect. I am not suggesting with confidence, but also cannot rule out the possibility, that he knows this, or even that he hopes to influence the Chief Justice. And I am not inclined to view this kind of activity any more favorably if it is engaged in "merely" as a corrective or balancing out of work by "the left."   




Posted by Paul Horwitz on March 3, 2015 at 11:24 AM in Paul Horwitz | Permalink | Comments (4)

Tuesday, January 20, 2015

Decision in Holt v. Hobbs

The result in this RLUIPA case was unsurprising: The petitioner won unanimously.  Justice Alito wrote (again) for the Court, in an opinion holding that "The Department [of Prisons]’s grooming policy violates RLUIPA insofar as it prevents petitioner from growing a 1⁄2-inch beard in accordance with his religious beliefs." Justices Ginsburg and Sotomayor filed short concurrences, solo in Sotomayor's case. The opinions are here. Mazel tov to Professor Doug Laycock, who argued on behalf of petitioner Gregory Holt in the Supreme Court. 

Posted by Paul Horwitz on January 20, 2015 at 10:47 AM in Paul Horwitz | Permalink | Comments (1)

Saturday, January 17, 2015

An Interesting Quote from the Supreme Court of Canada on Religious Institutionalism and Pluralism

The Supreme Court of Canada yesterday issued its opinion in Mounted Police Association of Ontario v. Canada. The subject is freedom of association in the context of collective bargaining. But there is a paragraph in the judgment that speaks to the kinds of issues that I, and a number of my colleagues in the law and religion field, have been interested in over the last few years and that has been relevant in cases like Hosanna-Tabor. In particular, it's relevant to the interest of many people in the field in questions of religious institutionalism; it's also relevant to the interest of some of us, like me and like John Inazu (whose book is cited in the opinion!), Abner Greene, Perry Dane, and others, in the current state of religious and other forms of pluralism.

As a matter of interest, I note that sentence of the quote beginning "The Court has also found..." is consistent with arguments, by people like Micah Schwartzman and Rich Schragger, that any kind of institutional or corporate religious rights are at bottom derived from individual rights, not from some kind of inherent valuing of the "entity" itself. On the other hand, that sentence that follows that one is pretty rich--for a judicial opinion, at least--in finding a more structural appreciation for and protection of institutional life. It asserts, quoting an earlier opinion, that "the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection of freedom of religion." [Internal quotations and citation omitted.] 

Here it is:

[64] First, the Charter  does not exclude collective rights.  While it generally speaks of individuals as rights holders, its s. 2  guarantees extend to groups.  The right of peaceful assembly is, by definition, a group activity incapable of individual performance.  Freedom of expression protects both listeners and speakers:  R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477, at para. 28.  The right to vote is meaningless in the absence of a social context in which voting can advance self-government:  Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519, at para. 31.  The Court has also found that freedom of religion is not merely a right to hold religious opinions but also an individual right to establish communities of faith (see Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567).  And while this Court has not dealt with the issue, there is support for the view that “the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection” of freedom of religion (Hutterian Brethren, at para. 131,per Abella J., dissenting, citing Metropolitan Church of Bessarabia v. Moldova, No. 45701/99, ECHR 2001-XII (First Section), at para. 118).  See also Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976).

Posted by Paul Horwitz on January 17, 2015 at 12:55 PM in Paul Horwitz | Permalink | Comments (0)

Thursday, January 15, 2015

A Further Typology of Draft Readers

I enjoyed Eugene Mazo's post below on different kinds of readers of colleagues' manuscript drafts. In the comments, I added one more category of reader/commenter: "The Bikini, whose advice is always: 'This is really two pieces.'"

That was a joke, but not a joke. Notwithstanding that comment's light tone, there certainly are people who give the "it's really two papers" advice all the time. But just because some readers tend to give the same particular advice or ask the same questions repeatedly and thus fairly predictably, that doesn't mean the advice is not valuable. Provided you give your draft to a range of readers with a range of hobby-horses, it's useful to hear even from readers with marked tendencies to ask the same questions of each paper, because as predictable as that reader's conclusions might be as a general rule, sometimes (ie., almost always) authors don't see their own piece clearly. Moreover, you might be the exception that proves the rule, and that's good to know. When someone who sees almost every piece as a bikini-in-waiting agrees that your paper is a genuine one-piece outfit, you know you're safe on that score. 

Still, anyone who delights in the amusement of seeing types and tendencies in the characters of our colleagues (and ourselves) can enjoy this kind of semi-satirical academic sociology in the paper-reading category too. So here are a few more types, and I welcome others (as long as they're on point) in the comments. Some such readers may include: 

1) The Sullen Adolescent, who asks of most pieces, "So what?" 

2) The Fixer, or perhaps, in tribute, The Markel, who demands some "normative" or prescriptive payoff at the end of each piece; who asks every time whether the piece is "merely" descriptive or whether it has some fix or solution--the inevitable Part IV of so many legal academic papers. Others can disagree with me altogether or modify the description, but it seems to me that this was our friend Dan's favorite question, and a source of endless disagreement and debate with his friends, who if they're like me would gladly have that debate a few more dozen times.

3) The Publisher's Agent. Do such readers take money under the table from the university presses? Knowing what I do about the budgets of those presses, I doubt it. But the advice from this reader is invariably, "This is really a book."

4) The Librarian, whose reaction to each piece is to begin, "Have you read...?" and provide a long reading list of (possibly) relevant cites and sources. (I am often a Librarian as a manuscript reader.)

5) The Careerist, whose advice for papers is aimed at less at encouraging the writer to follow his or her own scholarly muse as such, and more at helping the writer to play the academic game with cunning and skill. I am fairly convinced that I have seen enough smartly shaped and tailored papers from well-trained law school fellows and VAPS to spot the behind-the-scenes advice of a Careerist. One could say much more about this category of advice, and advisor. But I am feeling unusually prudent this morning.

6) The Gamer. Similar to the Careerist but with advice aimed at a slightly different, if overlapping, goal. The Gamer's advice is aimed not at advancing the career of the paper's author, but at passing along all the tricks and tools that may advance a paper's placement chances. (As I say, the goals overlap.)   

7) The Careerist-by-Proxy. A cross between the Careerist and the Librarian. Like the Careerist, the Careerist-by-Proxy advises authors with the hope of career advancement; but the career this reader seeks to advance is his or her own. Like the Librarian, this advisor offers a well-stocked shelf of sources for the author to cite; unlike the Librarian, the stock of the Careerist-by-Proxy consists mainly or entirely of his or her own work. The advisor's own cite count and academic stock rises as a result. The Careerist-by-Proxy may be defined as someone who is adept at buttering his own bread with other people's loaves. Is there a little Careerist-by-Proxy in most of us when we act as readers? I suspect there is. 

Provided they're on point, dealing specifically with types of draft readers, feel free to add your own. 

Posted by Paul Horwitz on January 15, 2015 at 09:21 AM in Paul Horwitz | Permalink | Comments (4)

Monday, January 12, 2015

"Religious Liberty" is Now a Right-Wing "Dog Whistle"

I'm not a big fan of Frank Bruni, admittedly. But his piece yesterday has a number of interesting aspects that are worth highlighting. It's difficult to describe his argument with precision. To say the column ranges all over the map is unjust to cartographers. But its general subject is the real and perceived conflicts between religious liberty and gay rights. There are small pieces of the column I agree with or for which I have some sympathy, and others I disagree with. Here, I want to focus on a few extraordinary and telling moments.

The first, per the title of this post, is this statement:

“[R]eligious liberty” sounds disturbingly like a dog whistle to the crowd that wants specified, codified exemption from anti-discrimination laws; it’s one of the phrases they lean on. If [Jeb] Bush didn’t know that, he should have. If he did, he just sided, for the moment, with religious extremists.

This is a remarkable statement, even if there is a kernel of truth to it. One might be delighted when presidential candidates say anything at all about about constitutional rights. But now it appears that when they invoke one of the nation's oldest, most important, most culturally defining liberties, it should be dismissed as a pernicious right-wing "dog whistle." This is a dispiriting conclusion. It does not bode well for the possibility of meaningful pluralism, or civil disagreement about the scope of our liberties. (It also stretches the term "dog whistle" so far that it ends up sapped of much moral power at all. On this definition, for instance, I take it we would all agree that President Obama's pronouncement that he would look for "empathetic" judges is a "left-wing dog whistle," no matter what he actually meant when he said it.)

Bruni's statement gets more interesting if one tries to unpack why, exactly, invoking "religious liberty" is a conservative "dog whistle." What he means, I think, is that where there is disagreement about the meaning of a constitutional right or value (ie., always), then someone's use of a definition of that term that Bruni disagrees with is not a difference of opinion on constitutional meaning; it's an illegitimate "dog whistle." This really is remarkable. Various versions of the notion that "religious liberty" is just that--a positive right of religious belief and practice, even in the face of legal rules to the contrary--have been prominent throughout American history. A strong version of that view was the law of the law of the land between 1963 and 1990, championed by such notorious conservatives as William Brennan. It might be wrong; even if it's right, it still might lose in the balance against countervailing rights and values. But it's hardly esoteric or unthinkable. Bruni's attempt to rule it out of bounds altogether is a sad commentary on our times.

Given that there is disagreement about the scope of religious liberty, it would help if Bruni proposed a definition of the term. He doesn't. To the extent that one can piece together his views, they are not unusual. But they are more interesting than one might expect from this unsophisticated writer.

In essence, Bruni offers a popular--perhaps even the prevailing--contemporary American view of religious liberty: it is simply a right against clear, intentional anti-religious discrimination. The  egalitarian version of religious liberty is common enough these days. More or less sophisticated and capacious versions of this idea have been offered by different writers. And there's much to recommend it. It's especially attractive to legal formalists and strict doctrinalists; it's no surprise that one of the leading cases supporting it is Justice Scalia's opinion for the Court in Employment Division v. Smith. This understanding of religious liberty is hardly outlandish. But I find two or three things especially interesting about Bruni's apparent understanding of this version of religious liberty, and the implications of that view.

First, note Bruni's definition of the scope of religious liberty: it applies in, and only in, people's "pews, homes and hearts." Some version of this, too, is common enough, although it's not always so niggling. In fancy-law-speak terms, it's just a strict version of the "public-private distinction." I find it startling that Bruni relies so heavily on this distinction at all, let alone such a strict version of it. That distinction has been the subject of countless, often perceptive criticisms for at least the last sixty years. But to read Bruni--and not just Bruni--it's as if Critical Legal Studies, feminist legal theory, and other critiques of the public-private distinction simply never happened. Bruni's ingenuous statement arguably reveals him as a staunch follower of the Legal Process school, a mid-twentieth-century legal conventionalist apres la lettre. It's an oddly old-fashioned thing for him to be--and I think he's hardly alone in this.

Bruni's egalitarian definition of "religious liberty" is essentially parasitic on an anti-discrimination norm. His understanding of the Free Exercise Clause should therefore say something about his reading of the Equal Protection Clause. It's tough to reach firm conclusions here, unfortunately. Even though his column is all about "religious liberty," "equality," and "anti-discrimination," Bruni defines none of those terms. But it's entirely possible to ask reasonable questions. Does Bruni believe that a law can discriminate against religion even if it does not do so facially and explicitly? Does he believe that a law that has a disparate impact on religion can violate "religious liberty," even if the law is facially neutral? Leaving aside the Establishment Clause, does he think the Free Exercise Clause permits the state, for reasons of diversity or other such grounds, to make decisions favoring religious individuals or groups at the expense of otherwise similarly situated non-religious individuals or groups? Or, as I think is the case, does Bruni believe that "religious liberty" is only guarantees formal equality? What are his consequent views of the proper interpretation of the Equal Protection Clause with respect to individuals or groups other than the religious? There is no question, given his approach, that his view on one clause must relate to the other or even be identical to it. How does Bruni feel about Washington v. Davis, or Bakke or Grutter, or other such cases?

Again, Bruni covers a lot of ground here. Again, there are areas where I agree with him. (Although I do not think, as Bruni apparently does, that the law must penalize Mormon hairdressers who "turn away clients who saunter in with frappucinos," and that this is so blindingly obvious that everyone would agree about this. It's one thing to say that the religious views of those who operate businesses should not entitle them to refuse service based on someone else's race, gender, sexual orientation, and the like. It's another thing to say that business owners should never be able to turn away anyone on the grounds of strong and sincere personal objections of any sort. Or does Bruni think that it's only actions based on religious grounds that must be legally erased from the marketplace?)

What is interesting and revealing about his column, though, is not just what he says. It's also what he doesn't say, and doesn't appear to recognize. He appears to think his conclusions are both self-evident and clear. But they are all based on labels: "religious liberty," "anti-discrimination," "equality." These are not infinitely malleable terms. But they're sure as hell contested ones; at least in the case of "equality," they also rely on conclusions that lie well outside the confines of the word itself. One would hope that Bruni would at least attempt to define them. We might then not only be able to evaluate them, but to ask how consistent he is in his application of those seemingly self-evident principles in other areas, such as the Equal Protection Clause. Given his failure to offer any definitions at all, or seemingly to recognize that these terms need to be defined, it's--well, I'm not sure whether it's surprising or unsurprising--that Bruni can so confidently assert that the public invocation of "religious liberty," one of the most defining values in American life, law, and history, is a mere "dog whistle." How passionate American political debate is these days, and how impoverished.         




Posted by Paul Horwitz on January 12, 2015 at 11:35 AM in Paul Horwitz | Permalink | Comments (0)

Thursday, January 08, 2015

Applause for the Column Linda Greenhouse Didn't Quite Write

A current rule of the Internet is to ignore the headlines, since their goal is to get clicks and not to accurately describe the content of the piece. We might say the same thing about Linda Greenhouse's latest column, "It's All Right with Sam."

But it's not just a headline thing. Maybe it's just me, but the whole framing of this piece seems off. At bottom, the real subject of the column appears to be two or three instances in which she strongly disagrees with Justice Alito, to the point of calling his actions odd and inexplicable (except as plays for the affections of the right). If that's right, she could have gotten right to the point. But there's a whole lot of stuff up top about how Alito is viewed as a "rock star" by conservatives who care about the Supreme Court, about how he has been the subject of "several recent hagiographic articles in the right-wing press," and about how her goal is to examine "the increasingly distinctive role he is carving out for himself inside the institution." But I don't think her piece does that, and the stuff leading the column turns out, in this instance, to be fluff, quickly abandoned so she can go after those pricked-out inexplicable cases.

That's fine; it's just a column. If the mismatch between what Greenhouse says she's going to do and what she actually does in this piece struck me more than usual, enough to warrant comment here, it's because I'm disappointed at a missed opportunity. The folks I chatted with who saw Justice Alito at a dinner associated with last week's Federalist Society conference in DC did indeed speak of him in "rock star" terms, roughly of the sort I would associate with Us Magazine. He has received hagiographic profiles in the conservative press. ("One of the noblest men in American public life today?" Maximus Decimus Meridius, thou shouldst be living at this hour!) Although her opening paragraphs end up having little to do with the bulk of her column, they are certainly accurate. 

It would have been interesting to read a piece by a well-informed, long-time observer of the Court, its justices, and the lawyers, clerks, scholars, and hangers-on who dwell around its precincts, about the American tendency to hero worship and how it plays out with the justices--or, if you insist, the "Justices." Maybe it's just the non-joiner in me, but this has always struck me as an unhealthy and rather immature tendency, a kind of failure to get over one's past clerkship raised to the levels of the entire legal culture. I assume Greenhouse would have had some interesting observations about this.

Not least, inasmuch as she is a liberal and has resident status in the organizations that feed these celebrity-oriented and elite-reproducing tendencies on the left side of the legal aisle, such as the American Constitution Society, I think Greenhouse might have had interesting things to say about echoing behavior of this sort on the right--again, "one of the noblest men in American public life today." As a result, she might also have shared some interesting reflections on this behavior among her own ideological allies. I'm not complaining about the column she wrote; I'm mourning for the column she didn't write.

Now back to our regularly scheduled programming.  

Posted by Paul Horwitz on January 8, 2015 at 05:06 PM in Paul Horwitz | Permalink | Comments (4)

Wednesday, December 31, 2014

AALS Bloggers' Get-Together and Markelfest

Happy impending new year to everyone. Most of us here, hosts and guests alike, have spent the latter half of the year in the shadow of the senseless death of our friend and colleague, Dan Markel. Most of us have shared our thoughts and feelings about this, but little things bring back his memory most every day and remind me again that he is gone. The feeling is not, for me, one of unmixed grief, or perhaps this is what grief actually feels like and I just didn't know, not having gone through it before: the fresh, recurring, often joyous and poignant nature of the memories; the sentiment at particular moments that I wish Dan was around to experience something; and the aftertaste of futility and loss each time when I remember that he is not. We here have tried to blog more in the past few months (mea culpa for my failures on this point, and thank you to permanent bloggers like Howard and our many guest bloggers for doing so much), and more energetically; not so much in tribute, but more out of a sense that the best way to honor some of the things we loved best about him--his boundless energy and his many friendships--is to try to emulate it. His blog was a great project and we remember him in doing our best to keep it going. We're grateful to our readers for sticking with us. I always want to note that Howard Wasserman and Ethan Leib have done an immense amount of work behind the scenes and deserve all our thanks. 

By way of remembering both Dan's energy and his innumerable friendships, I'm happy to announce that Prawfsblawg, Concurring Opinions, and the Younger Comparativists Committee of the American Society of Comparative Law have organized a joint happy "hour" at this year's annual AALS conference, beginning Saturday, January 3rd at 8 p.m. All are welcome: bloggers, readers, neither-bloggers-nor-readers, friends of Dan, anyone (the last two are basically synonymous). In recognition of the fact that many of us are now friendly, energetic, middle-aged bloggers, the start of the affair is earlier than it sometimes has been, and the location is closer to home base: we'll gather at the Stone's Throw bar in the lobby of the swanky Marriott Wardman Park in DC. I'm sure the happy "hour" will inevitably become happy "hours," so if you're coming back from dinner and such, feel free to swing by later. Tell your friends. Drop by and have a drink and a chat for Dan.  


Posted by Paul Horwitz on December 31, 2014 at 10:31 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, December 17, 2014

An Interesting Op-Ed on Delaying Exams, and its Consequences

The National Law Journal has this op-ed from a law student, titled (although the author probably didn't write the title) "Delaying Exams Is Not a Request from 'Coddled Milennials.'" It concerns, as the author writes, students at various law schools who have "requested that their administrations allow extensions on final exams for students who have been confronting the aftermath of the recent failed grand jury indictments of the officers who killed the unarmed black men." 

The op-ed begins, more or less, by discussing the emotional impact of these events for many students. This is the point that has been emphasized in recent coverage, and to which a frequent response has been that the job of a lawyer is to tough it out in such situations. For reasons I covered in a prior post, I am not convinced of the universality of this point, whether for lawyers or, certainly, for law students. Most schools, and many courts, are inclined not to insist on toughness above all else when, say, a lawyer or student has just suffered a grievous personal loss, a terrible illness, and so on. Whether these particular events have had that particular effect on individual students, and whether they justify any delay of proceedings in individual cases, is a question that is substantially factual and partly a matter of policy--of line-drawing. I take no position on the factual question. On the policy side, I am not categorically outraged that someone might have his or her exam delayed if that individual can make a fair showing of need. By the same token, since matters of line-drawing are involved, I do not think students would be in a position to draw strong conclusions about a school or administrator's sympathy, understanding of injustice, or anything else if in a particular case the answer to the request for a delay is "no--take your exams as scheduled." I think a categorical "yes" or "no" to all students in this position is probably not warranted.

But that's the least interesting aspect of the op-ed for present purposes. What is interesting is that the author makes clear that the trauma is, for him at least, not the most relevant reason the students want a delay. To the contrary, many students in his position, by his description, are not only capable but extraordinarily capable of taking their law school exams right now:

Although over the last few weeks many law students have experienced moments of total despair, minutes of inconsolable tears and hours of utter confusion, many of these same students have also spent days in action—days of protesting, of organizing meetings, of drafting emails and letters, and of starting conversations long overdue. We have been synthesizing decades of police interactions, dissecting problems centuries old, and exposing the hypocrisy of silence. . . . 

Our focus and critical thinking are at an all-time peak while the importance of our textbooks is at a low. It is not that law students are incapable of handling their exams. It is that we are unwilling to remove ourselves, even for a few days, from this national conversation. As future practitioners, professors, judges and policymakers, we have all been trained not only in the faithful application of the law but also in the critical examination of its effectiveness. And by our analysis, responsible members of the legal community can no longer defend our criminal justice system as exemplifying fair process when that system so frequently produces the same unjust result—life drained from an unarmed black body by a barrage of government-issued bullets.

We recognize that this is a moment for change. If not us, then who? For most of us, we know that if we get lower grades this semester, this cost will have been worth the importance and privilege of joining a national movement to fundamentally reform this country’s approach to law enforcement and criminal justice. But just because we are willing to pay this price does not mean we should have to. . . . 

Our requests for exam extensions are requests for our faculties and administrations to recognize that this movement is our legal education—that when we march, when we advocate, when we demand accountability and action we are employing the analytical skills and legal knowledge that we have learned in our law school classrooms far more than we would be if we responded to a hypothetical exam prompt. 

I have quoted the student at length because, rather than employ two common responses to these recent questions--unqualified acceptance of the students' claims or unqualified ridicule--I want to take the student and his argument seriously on their own terms. As such, I read the op-ed to say the following: However upset we may be, we are more than capable of doing the work the exams demand--more than capable of marshaling and analyzing facts and law and using and communicating analytical skills and legal knowledge. We can take the exams. But we don't want to; nor, all things considered, do we want to suffer grade penalties for taking them later. This is a unique time. It is a time for all good people to get involved in issues of police violence, and specifically racially disproportionate police violence. We are making a knowing choice to do this instead of working on our law school obligations, and the law schools should recognize the importance of these issues and assist us in doing so without what penalties given the circumstances. I hope that is a fair precis.

For what it's worth, I think the student is right that this is not simply a "coddled millenial" argument, notwithstanding the hundred or so comments on the National Law Journal website calling the student a coddled milennial, although in less friendly language. This student argues not that these students are done in by grief and sensitivity, but that they are engaged and skillful; they simply think they have more important things to do. In that, it makes me think not about the millenial generation in particular, but about other generations and other eras in which this kind of argument might have been made, at least in elite circles. In particular, it reminds me of Laura Kalman's great book Yale Law School and the Sixties, in which, as I wrote here in a post in 2006 (searchable, if you plug in Prawfsblawg and Kalman and sixties), a bunch of YLS students in the Hillary Clinton period staged a walkout to end the war in Cambodia, and then demanded that those students receive course credit without sitting for their final exams. It reminds me, too, of debates and goings-on at law schools in the era I think our current era most closely resembles: the early 90s.   

To my mind, taking this op-ed seriously is more valuable than either mocking it or accepting its claims categorically. And it raises some interesting questions. Are the students right that this is a unique moment? Conversely, are there times when a "moment" would be judged insufficiently unique or pressing to justify a student's request for exam delays on the grounds of political activism and an emotional response to current events? 

More important, perhaps: Why attend law school at all at such moments? Why not take a leave from school, or drop out altogether? Why not become a full-time activist instead of a part-time student? One hardly needs a law degree to work for social change. It is true that law school teaches valuable skills, or at least gives one credentials, that might help one engage in certain forms of socially conscious work in the long run. But I take the student's point to be that the students cannot wait; they must act now, notwithstanding their prior obligations as students, and the moment is sufficiently pressing that they should not be penalized for making that choice. If the moment is so pressing, why remain in law school? One could ask similar questions about the possibility that some of these students--not all, I'm sure, perhaps not even most of them--will go to work at standard-issue law firms after graduation, on the grounds that those credentials and experience will allow them to do more important work for the social good in the long run. Whether this is a good argument or not in normal times, doesn't it entail these students waiting to make significant contributions until after they've done a few years gathering standard credentials in clerkships and law firms--in other words, until well after the moment has passed? And if that's so, doesn't that weaken the argument that the students should have their exams delayed because the moment is so urgent? 

I initially intended while writing this to acknowledge at this point that these may seem like somewhat unkind questions. On reflection, though, I think they're not. They're perfectly legitimate questions that arise if you take the student's arguments seriously instead of just mocking him as another "coddled milennial." If they're at all unkind, it's not because they're dismissive but because they take the student's logic perhaps more seriously than he would want. Once you accept the argument of the logic--protesting is more important than exams right now because of the urgency of the moment, and the issues raised by the news right now deserve some extra consideration over the mere routine of law school and its obligations--than the question "why not drop out?" seems perfectly reasonable. Conversely, it seems unreasonable to accept the logic of those arguments up to a point--"Yes, you should certainly get an extension from exams on the grounds of political urgency that you offer"--but not accept them too much: "Of course, that doesn't mean that, having gotten the extension, you shouldn't remain in law school, graduate from Harvard, and go on to a prestigious clerkship and a short career at a fancy big firm before doing the things that are really important. Those things can always wait, and you'll do more good in the long run. By all means, have your cake and eat it too." In the circumstances, if you accept his argument, I think the student has made a fine case for abandoning law school immediately and taking up full-time activism. And I sincerely appreciate his offering a different, non-milennial take on things. 








Posted by Paul Horwitz on December 17, 2014 at 02:57 PM in Paul Horwitz | Permalink | Comments (0)

Saturday, December 13, 2014

A Few More Cents on the Exam Question Question

My initial inclination concerning the UCLA Law School Ferguson-related exam question fuss was to think that the professor had not acted terribly or outrageously, especially since the question itself was one step removed from direct questions about the shooting or the grand jury process. That said, I ended up more ambivalent about this question than I expected I would be, for various reasons. Some of those reasons are given by Eugene, whose post title--"Exam questions about emotionally charged events"--puts things in the right context. A few observations:

1) The main goal of any exam drafter should be to give a clean question that offers a simple basis for evaluating a student's mastery of the subject matter of a course and grading those questions. Anything that distracts from that goal should be avoided. Sometimes the thing to avoid is the professor's own 'wit.' An exam question, for instance, should not feature parties named Chuck, Chick, and Chet, so that students have to waste time figuring out who's who. A clever question based on a TV show should not assume that students know anything about the show. A professor should certainly avoid using a question as a vehicle for his or her own politics, because students may worry about satisfying those politics.

"Emotionally charged events" may be a distraction too. Thus, questions of future lawyers' "toughness" aside, those questions should be avoided if there is a chance that a number of students will be distracted by them, let alone upset. Although I think we seem to have re-entered an era of concerns over political correctness, and one in which, as a commenter wrote on Howard's post, some students (and some professors) "are generally unable to separate their own political beliefs from principled legal analysis (or even civil, civic discussions)," the view I've offered here doesn't have much to do with that. It's simply a matter of best practices in exam drafting. I do not think the question was outrageous, as I said. But the concern could have been anticipated and avoided.

2) I think some of the arguments I have seen, along the lines that law school is all about training students to deal with controversial issues in a clinical fashion and that students who have emotional responses to such questions show a lack of fitness for future practice, are overstated. There are some valid points here. Eugene points out something important that most commenters have not: even where a lawyer is acting for the side he or she feels passionate about, not against it, that lawyer "will do [his or her] clients no favors by being so zealous in [his or her] opinions that [the lawyer] fail[s] to grasp the best arguments on the other side." Even a lawyer with the good fortune to be representing a person or cause that he or she feels passionate about must still also bring a clinical side to that work. 

That said, lawyers are not always required to take on issues that they feel passionate about, on either side of the case. To the contrary, ethical rules recognize that such lawyers may--and sometimes must--avoid such cases. A lawyer with a strong personal reaction to a particular issue may in some cases have a personal conflict of interest--sometimes even a non-consentable conflict. Lawyers confronted by a client who insists on a course of action that is repugnant to them may sometimes be able to withdraw from that case. And in a broader sense, lawyers often avoid whole practice issues that they believe would confront them with too many emotional or political dilemmas, such as criminal prosecution or defense. Again, I think there are some valid aspects to the general argument that lawyers are required to bring a clinical, detached perspective to their work. And I worry that some of the general drift of some of the comments both makes too many class-based assumptions about students' likely emotional reactions and capabilities, and gives too much weight to some of the aspects of our emotional, offense-centric age. Nevertheless, I think the general argument that lawyers are necessarily required to immediately set to work on a case no matter their deeply held personal response to it is overstated and ultimately not that helpful here. And, of course, whatever we think about those general issues, we are still dealing here specifically with an exam question, not class curriculum or discussion.

3) I assume that there will be several general responses to some of the parade of hypotheticals that have been marshaled in defense of this exam question, or more generally in defense of teaching and examining on issues that might upset students. One will be the "Ferguson is different" argument, and some comments have gestured in that direction. Whether it's accurate or not, it is insufficient. We need to know why this case is different. Is it the politics of the issue? The identity-based issues it raises? Its emotional pull? The amount of time that has elapsed since the issue came up? We need to know more, not only to evaluate this particular exam question but to address future questions.

Another might be to privilege students' claimed emotional reactions completely and categorically. There are obvious problems with that approach, both normative and practical. But it's not wholly irrational. The question is how to implement such an approach. Say a professor avoids an issue like Ferguson, on the grounds that too many students might be upset, and instead asks a question about a suit against a tobacco company involving "light" cigarettes. One student in the class lost a parent to lung cancer a week ago. Is it advisable to discount that question for that student? How about a student who lost a relative to lung cancer two years ago, if she says she was still upset by the question? How about a question about the Holocaust? If advisable, is this deferential approach administrable? Finally, does everyone agree that politically sensitive issues should not be categorically avoided, and that asking students to see both sides of that issue is wholly acceptable? For instance, is there anything wrong with asking a student, in an essay question, to provide the best possible critique of Brown or Lawrence or Windsor? Is such a question insensitive? If a student expresses emotional upset at being asked to do so, how should we respond to such a claim?

My sense, after reading through the comments on Howard's post (the comments on Eugene's post were less useful, in my view), is that whatever the answers to these questions are, we will get clearer discussion and better guidance by discussing other cases and hypotheticals rather than focusing solely on Ferguson. I would find it more helpful if commenters would propose other exam questions involving other issues, and give some guidance on how to deal with those questions, both for the class as a whole and for individual students. Even when one decides that some practical question, such as what constitutes an acceptable or unacceptable exam question, requires case-by-case judgment, there is still some kind of incipient rule or principle behind those judgments. That is what needs to be uncovered here. 

Posted by Paul Horwitz on December 13, 2014 at 10:06 AM in Paul Horwitz | Permalink | Comments (14)

Thursday, December 04, 2014

The New Republic, 1914-2014. R.I.P.

I was only in journalism for a year or so before attending law school, but I have always retained a strong loyalty to that profession. So, despite not having blogged much lately, I'm moved to write by the news that one of my favorite magazines, The New Republic, has died--and on its hundredth anniversary, no less.

Although the news is sad, it should have been foreseeable. The magazine had gone through plenty of cycles of changes in owners and editors and weathered most of them. But, like most longtime fans of the magazine, I found it apparent that the magazine had been getting increasingly bad since its purchase in 2012 by Chris Hughes. The content got ever shorter and ever dumber, as one would expect of a property owned by a former Facebook executive. And, as one would expect of a property owned by the former "coordinator of online organizing" for a presidential campaign, the magazine also went from being liberal-centrist in politics but contrarian in spirit, to engaging in pure political hackery without any governing philosophy--or ideas--at all. The print magazine was thin and jumbled, and the online site was an insult to itself and its readers alike. It was tragic to watch--like watching a patient get sicker and sicker every day. And now it is finally dead, alas.

Well, not technically dead. But the last decent, responsible people have left the building. I can't help but think today of our friend Dan, who was also a longtime friend and fan of the magazine. When I lamented what was happening to the magazine, he would remind me that the magazine at least had its "back of the book" section, run by Leon Wieseltier. The back section was always an excellent source of essays and book reviews, including pieces by legal academic luminaries such as Richard Posner, Cass Sunstein, Justin Driver, and many others. Now, apparently, Wieseltier is gone. With him goes Franklin Foer, the magazine's editor, who certainly contributed to the magazine's decline but at least provided a link to adult journalism. What remains is Hughes, who has said of his property, "I don’t call it a magazine at all. I think we’re a digital media company," and Brian Beutler, a Salon veteran whose online work first made me realize just how bad TNR was getting, and whose work has only gotten worse since then.

If Dan were still with us, I think he would now agree with me that the last reasons to look at the magazine have vanished and that it is effectively dead. I am so sorry to see it go. I can't but help but wonder if there are any good magazines of its sort left.

Posted by Paul Horwitz on December 4, 2014 at 04:19 PM in Paul Horwitz | Permalink | Comments (3)