PrawfsBlawg

How (Not) to Defend (Legal) Scholarship

I've really enjoyed and appreciated Jason Solomon's guest posts on Prawfs in the past couple of weeks and am very sympathetic to some of the questions he's been asking about the cost and value of law schools. In his latest post, Jason argues that "one benefit of the increased scrutiny that the taxpayer subsidy of law school loans are about to receive is that we -- the legal academy -- will be forced to defend the value of legal scholarship." He questions attempts to justify legal scholarship on certain kinds of instrumental bases, such as that it helps enhance schools' reputations. "[L]egal scholarship has to be defended on its own terms, and that's a good thing," he writes. I agreez! In his view, legal scholarship has lots of things to offer that are of "importance to the real world." And he links to a post by Marcia McCormick that argues on similar grounds that "there is great value in legal scholarship. The public benefits by getting legal and government structures that make real people's lives better. Students benefit from the scholar's ability to turn chaos into order and communicate both the chaos and the order to someone who hasn't done the same work."

I enjoyed Jason's post, but let me add a few thoughts of my own.

First, as Steven Lubet suggests in the comments, I think this doesn't really answer the key question. Except for a subset of critics who believe legal scholarship ought not exist at all (or something; they're not always very clear about this), the real question is how much legal scholarship ought to exist, or at least how heavily subsidized legal scholarship ought to be. Pointing to useful scholarship--or crap scholarship--doesn't tell us whether we as a system are paying too much for it.

Second, I think Jason has unwisely just substituted one set of instrumental arguments for legal scholarship for another one. I think there ought to be more doctrinal, empirical, practical, useful legal scholarship. But I also emphatically think there's a place for good scholarship, legal or otherwise, that is not necessarily useful, or whose value is much more indirect, including simple contributions (or attempted contributions) to understanding the world better. I don't depend on legal history or theory--or non-legal history or philosophy--to be functionally useful; I just want it to be good, true, and productive of thoughtful discussion. If Jason says something useful about civil justice in his writing, I think that's a good in itself, whether he finds takers in the legal system or not. If someone writes about Kantian theory and the ACA decision, I don't care much that Chief Justice Roberts is unlikely to pay much attention to it; I just want it to say something intrinsically correct and interesting. There is a lot of crap in legal scholarship, period, and some good stuff; not all the instrumentally oriented legal scholarship is good, and not all of the non-instrumentally valuable scholarship, even if it's not useful, is bad. We ought to be asking hard questions about the standards for and quality of legal scholarship, and we ought to be asking how much we pay for any and all of it. But I think defending it on strictly instrumental grounds is a mistake, and perhaps even a disservice to scholarship, whose goods are sometimes much more intrinsic than instrumental. Truth is not always a particularly instrumental value, but I think it is a value, and one worth upholding. 

Finally, and somewhat relatedly, I think either of our views leave a lot of room open for other questions about how we structure the conditions for scholarship. Whether you think it ought to be instrumentally valuable or just of high quality regardless of its instrumental value, that doesn't tell us much about how to improve the ratio of good to bad scholarship, what aspects of the current academic structure are necessary to scholarship and what aren't, and so on. I see no reason in principle, for instance, why Jason and I couldn't disagree on the purpose and value of scholarship, legal or otherwise, while still agreeing that, say, there ought to be a robust requirement of post-tenure review, or that 70 percent of the law journals out there ought to be eliminated, or that law schools ought to be able to make much greater use of adjunct professors, or that most tenure-track law professors ought to be shifted into undergraduate schools of law, or history or philosophy departments--or, if the demand isn't there, fired and left to fend for themselves in the non-academic sector. I'm not arguing for these things; I just don't think our position on the value of legal scholarship necessarily says much about them.

Pulpit Freedom Sunday and Church Autonomy

In case you haven't marked your calendars yet, Sunday is "Pulpit Freedom Sunday," a day on which churches, encouraged by the Alliance Defence Fund, will engage in more or less overt endorsement of candidates for political office, in contravention of the rules limiting electioneering by tax-exempt organizations, and dare the IRS to enforce the law against them. (Stories here and here, to start.)

As my friend and co-blogger Rick has written, the law in this area is "intimidating," and I can't do an adequate job of examining it all here. I do want to ask one question about it, however. Rick and I have both written approvingly about a principle of church autonomy. Lloyd Hitoshi Mayer has written an excellent article arguing that church autonomy, or principles of "institutional free exercise," militate against the enforcement of the anti-electioneering laws with respect to churches, writing that "a proper appreciation of that view would bar the government from applying the prohibition to not only sermons but also a broader range of internal communications from religious leaders to the members of their houses of worship on matters of religious importance." Does belief in some form of church autonomy require this position?

I think the answer is no. Church autonomy is at bottom about the right of churches to be left alone, to preserve a sphere of non-interference from the state even in the face of neutral, generally applicable laws so that they can do their work, and to recognize the potentially limited scope of the state's jurisdiction over churches. That work most certainly may include speaking out in favor of or against policies and candidates; it is absurd to suggest that this kind of activity falls outside the proper scope of religion. An institutional view of churches and institutional religious freedom certainly suggests a right to speak out on such issues. But I don't understand it to include a right to tax-exempt status, or a right to receive conditional benefits shorn of those conditions, provided the conditions are generally applicable. The church's fundamental right to exist has much more to do with its right to subsist and thrive (or fail) on its own bottom than with some kind of right to state support for its existence. With Hosanna-Tabor decided, albeit with many details left to be worked out, the debate over church autonomy will be moving increasingly toward its role where "funding with strings" is involved, in my view. There's a good deal to be written in this area. But in my view, while church autonomy requires a sensitive application of conditions in this area, it does not free churches that seek to participate on an equal basis in receiving state subsidies from the obligation to abide by the conditions of those subsidies.

There may be other issues here, such as the application of RFRA and the doctrine of unconstitutional conditions. But church autonomy itself, I think, does not offer any additional support for "Pulpit Freedom Sunday." To the contrary, I think there are good arguments for supporters of church autonomy that, not that refraining from electioneering is a good thing--that's a matter for individual churches--but that tax-exempt status itself is a dangerous thing for those who believe in what has been called the principle of "a free church in a free state." Churches are free to seek to participate on an equal basis in seeking state subsidies and exemptions, in my view, but they ought to consider at the same time whether doing so is always the best thing for that church and its independence.  

Why You Are So Rude Online

I don't know what made me think of it, but readers may enjoy this article in the Wall Street Journal exploring the reasons why we you are so rude online. Now, if you fat, stupid bastards will excuse me, I need to go get a candy bar.

The Unintended Reformation, Pro and Con

I'm very grateful to Rick for pointing me over the summer to a fine new book by Brad Gregory, The Unintended Reformation: How a Religious Revolution Secularized Society, published by Harvard University Press. Here's a description: 

In a work that is as much about the present as the past, Brad Gregory identifies the unintended consequences of the Protestant Reformation and traces the way it shaped the modern condition over the course of the following five centuries. A hyperpluralism of religious and secular beliefs, an absence of any substantive common good, the triumph of capitalism and its driver, consumerism—all these, Gregory argues, were long-term effects of a movement that marked the end of more than a millennium during which Christianity provided a framework for shared intellectual, social, and moral life in the West.

Before the Protestant Reformation, Western Christianity was an institutionalized worldview laden with expectations of security for earthly societies and hopes of eternal salvation for individuals. The Reformation’s protagonists sought to advance the realization of this vision, not disrupt it. But a complex web of rejections, retentions, and transformations of medieval Christianity gradually replaced the religious fabric that bound societies together in the West. Today, what we are left with are fragments: intellectual disagreements that splinter into ever finer fractals of specialized discourse; a notion that modern science—as the source of all truth—necessarily undermines religious belief; a pervasive resort to a therapeutic vision of religion; a set of smuggled moral values with which we try to fertilize a sterile liberalism; and the institutionalized assumption that only secular universities can pursue knowledge.

The Unintended Reformation asks what propelled the West into this trajectory of pluralism and polarization, and finds answers deep in our medieval Christian past.

It's a terrific read, encyclopedic in the sources it draws on and compelling in spinning them together into an interesting and valuable narrative.

That said, I'm also grateful to Rick for pointing me to this critical review of Gregory's book by Mark Lilla. Lilla writes that the book is part of a trend toward "The Road Not Taken" narratives, all nostalgic about the medieval Christian world, among Catholic thinkers. "Gregory would have us believe that he is writing conventional history," Lilla writes. "But the deeper you delve into this book, the more you begin to feel that you are watching a shadow-puppet play on the wall of some Vatican cave. A straightforward history of the post–Reformation West written from an explicitly Catholic standpoint would have been a welcome addition to our understanding of the period and of ourselves. Instead, Gregory has offered up a sly crypto-Catholic travel brochure for The Road Not Taken." Gregory's book, he says wittily, is the product of "an inverted Whiggism—a Whiggism for depressives."

Rick himself is not entirely taken with Lilla's review. I'm more sympathetic to it. As I said, I sincerely like and learned from the book. But I did get the sense that Gregory's book would not suffer--might even benefit--if the reader simply skipped the last ten to fifteen pages of each chapter. I feel sure that Gregory would not have written the book but for those sections; but I also think those sections are the most questionable parts of the book. Certainly they make the slyness of the preceding materials more apparent. Still, I encourage you to read the book--and the review--for yourselves. Whether you agree with its narrative or not, it's still fascinating, highly readable (I will forgive much from an author who mentions the Insane Clown Posse in the introduction to a book about the historical consequences of the Reformation), and full of interesting details and synthesis. 

 

Modern Pluralism

My cavalcade of fall book notices continues with a superb collection. Modern Pluralism: Anglo-American Debates Since 1880 is a collection edited and introduced by Mark Bevir and published by Cambridge University Press. As Bevir notes in his introduction, the book "trac[es] the history of pluralism" from the late nineteenth century to today "and thereby enrich[es] our understanding of the nature of pluralism and its contribution to current policies." It describes and devotes sections to each of the "three main traditions of modern pluralism," which are distinguished somewhat differently and more clearly than they often are in the legal literature: "the liberal constitutional tradition, the radical socialist tradition, and the empirical tradition."

Those of us in the legal academy (all ten or so of us) who are interested in reexamining and, to some extent, reviving interest in the British pluralists of the late nineteenth and early twentieth century, such as Laski, Maitland, Figgis, and Cole (and their German forebear and influence, Gierke)--a phenomenon that seems to rise and fall like clockwork every generation or so--will find special interest in the first four chapters. I am particularly taken by Jacob Levy's paper, "From liberal constitutionalism to pluralism," which seeks to place the British pluralists in a liberal rather than a non- or anti-liberal context, a move that he says is made "oddly infrequently." Levy, like some legal scholars I know, "remain[s] convinced that the pluralists made real intellectual progress, and have something to teach us still as we struggle with questions about freedom of association, the limits of the state model of absolute sovereignty, and the relations among individuals, intermediate groups, and the state." In an age of cases like Christian Legal Society, Citizens United, Hosanna-Tabor, and Fisher, there are plenty of reasons for legal scholars to find this material interesting and valuable. And if Levy's argument helps create room for conventional modern liberals and fans of the British pluralists to break bread together, all the better.

I'm still dipping into the book, but the whole thing looks very worthwhile. It is expensive--priced for institutional purchase at some $90 for a 250-page collection--but well worth having your library order. Enjoy!     

Oedipus Chats

Fall is a great season for law books, and I have a bunch to recommend, but I thought I'd start with two of them. By way of background, when I was in my first year of law school, I was just coming out of journalism and felt somewhat disconnected from what I was studying at first. What changed was coming across a large number of relatively contemporary (ie., 20th century) biographies and histories in the dark and lonely sub-basement of the Columbia law library, where I was purportedly studying. They helped put a narrative frame on the law for me and gave me a way in to the tradition and its conflicts. I've been attracted to those kinds of biographically based intellectual histories of the law ever since.

A book has just come out that would have greatly appealed to the young me, and still does: James Hackney's Legal Intellectuals in Conversation: Reflections on the Construction of Contemporary American Legal Theory. It consists of a series of transcripts of well-conducted interviews with some of the leading figures in the field of legal theory in roughly the 1970s and 1980s, including Duncan Kennedy, Richard Posner, Catharine MacKinnon, Patricia Williams, Bruce Ackerman, and Jules Coleman. It is about their ideas, of course, but it's also about their backgrounds, influences, and intellectual and interpersonal conflicts. It situates them incredibly well and is a tremendously entertaining read, every bit as exciting as the title would suggest. One strong note in the book, which is certainly part of the interviewer/author's perspective but emerges as well from the interviewees, is the sense that there were grand arguments afoot in those days about legal theory, and that the modern age by contrast features much less conflict but also much less ferment. I must say in particular that while I'm not terribly familiar with Jules Coleman's work, alas, his interview is terrific and contains some strongly personal grace notes. The book is well worth checking out.

I also am surprised that more attention has not yet been paid to another forthcoming book that would have been another pleasure to encounter in the sub-basement of my youth. In December, Oxford University Press will publish Reason and Imagination: The Selected Correspondence of Learned Hand, edited by Constance Jordan with an introduction by Ronald Dworkin. The book, says the press,

offers a unique sampling of the correspondence between Hand and a stellar array of intellectual and legal giants, including Justice Oliver Wendell Holmes, Theodore Roosevelt, Walter Lippmann, Felix Frankfurter, Bernard Berenson, and many other prominent political and philosophical thinkers. The letters--many of which have never been published before--cover almost half a century, often taking the form of brief essays on current events, usually seen through the prism of their historical moment. They reflect Hand's engagement with the issues of the day, ranging from the aftermath of World War I and the League of Nations, the effects of the Depression in the United States, the rise of fascism and the outbreak of World War II, McCarthyism, and the Supreme Court's decisions on segregation, among many other topics. Equally important, the letters showcase decades of penetrating and original thought on the major themes of American jurisprudence, particularly key interpretations of the First, Fifth, and Fourteenth Amendments, and will thus be invaluable to those interested in legal issues.

I can't wait for this one either. Christmas shoppers, take note! 

What I Told the Aspiring Law Professors

It was absolutely great to be at ASU for the Aspiring Law Professors conference this past weekend. My hosts were terrific and it was wonderful to meet the aspiring lawprofs and the faculty members from near and far who came to help out with the conference. Given the interest in the aspiring law professor thread here and the fact that not everybody went or could go, I thought I'd add a few words of summary from my talk. 

By way of preface, the audience was roughly divided between those with strong conventional qualifications (which I took as a given, while noting that I'd be perfectly happy if law schools adopted other qualifications besides the usual ones) who are already in or about to enter the job market, and lawyers with some interest in learning about the job market but who may not have conventionally attractive qualifications. It's difficult to speak to both groups! One wants to be supportive but not falsely encouraging. Again without agreeing with the usual measures and qualifications, it seems true to me from my experience on hiring committees that the idea that an applicant is competing with several hundred other applicants is somewhat false; a first cut at the first distribution results in rejections for a substantial number, and more serious consideration of many fewer applicants. That's good news for the conventionally qualified, but should give great pause to those who don't have those qualifications but apply anyway. Given the time and money they put into the process, it's important for them to learn about the process up front and to think hard about whether to go forward anyway. That doesn't mean people with unconventional qualifications can't get jobs: I did, despite some unconventional aspects to my resume, and so did one of my main hosts at the conference. But it's important not to go into things blind (which I take it was one of the primary, and saluatary, reasons for the conference itself). Some of those candidates may want to reconsider altogether, while others may want to think about how they can retool their qualifications and writing before entering the market.

Having said that, one of the main themes of my talk was the idea of "vocation." I take the idea of a vocation as a law professor very seriously, and I think that one who has a genuine vocation and some good reason to think they might succeed at it shouldn't throw it away lightly. To that end, I pointed out--and I'm not sure whether this was a good thing for the keynote speaker at a conference for aspiring law professors!--that I ended up having to go on the market three times. Some of that has to do with the vicissitudes of given years and hiring needs and so on, and some has to do with personal vicissitudes: the first year I was on the market, the conference came three weeks after back surgery, I was in a brace and drugged up, and I'm sure my interviews showed it. It also had to do, frankly, with not being quite ready. My job talk was not where it should have been and I wasn't as ready to talk about my work and my agenda as I should have been. I would have been better off waiting another year. My broader point, though, was that while people need to think strongly about whether they really have a vocation and qualifications, if they do they should not give up too readily, and should take some sustenance from knowing that others have succeeded on the market despite initial failure.  

My talk obviously covered a good deal of general advice about the application process, the meat market interview, and the job-talk. I won't reiterate all of that except to add that I emphasized the importance of fit with a particular school and its location. I argued that just having canned knowledge about a school based on brochures etc., while nice, isn't enough. Among other things, that information can be misleading: if you say to a committee, "I really, really want to come to your school because of your Center for X," it might turn out that that Center really consists of a single professor and that the school has no real interest in hiring more people in that field. It is also the case that many people come through schools like mine (Alabama) with questions about living in that area that either 1) end up asking the equivalent of, "How much New York is your location?" or 2) come off like anthropologists investigating the quaint custom of the natives. I argued that more important than getting a few facts straight about the school is asking that school what it considers its foundational strengths, where it is hoping to go, and how you can help. A similar attitude toward living somewhere new works as well. In short, you should imagine yourself making a life there, and ask how you can make it a better one, both for yourself and the school. Personally, I don't mind interviewing talented people who might be poached by lateral offers; to the contrary, I like it. But I do mind interviewees who make it clear they have little long-term interest in being at your school and view it as a short-term resting place; I want people who are going to be committed to the institution as long as they're there, who will make sure that any personal glories they enjoy redound to the benefit of their school as long as they're there, and who will think and speak kindly about the place once they leave. The other broad thing I said about the market is that committees are looking for prospects who are, in a sense, already tenure-ready: not in the sense that they could or should get tenure tomorrow, but in the sense that they are already confident about where they're going, and it's evident that they won't stop working once they get tenure. I also couldn't help referring the audience to Martha Nussbaum's great piece Cooking for a Job, which points out the ways in which the law hiring process rewards glibness over thoughtfulness, and urging them to keep it in mind, at least for when they're hiring themselves.

The last part of the talk returned to the matter of vocation. For me, at least, the sense of vocation means that one ought not only consider the pleasures of working in the legal academy, which are great, but also its duties. That means, at the least: 1) thinking about your students and what you can and should be doing for them, both in terms of teaching and in terms of job-hunting; 2) as a corollary to the last point, it means that even though you may have come to your school from some distant place, such as New Haven, you have an obligation to learn about the local legal market and its needs, rather than just assuming that your job is to send the top one percent of your class to big firms in New York or DC; 3) thinking about your school and how you can make it better, and not just getting wrapped up in your own work; that includes an obligation to speak up about local law school reform issues even if you're still untenured; 4) thinking about the larger profession(s), both the legal academic profession and the legal profession itself; that means that you have an individual duty to think about "law school crisis" or "scam" issues and to address them, both at your own school and in the broader environment; and 5) thinking about what you can do, once you're a professor, to pay back your debt to the many people who helped you get your job, by spotting, encouraging, and helping promising and talented academics or potential academics.

I'm not sure talking about these duties will help anyone get a job, although I suspect interviewees will get more and more questions this and next year about "law school crisis" issues. But I doubt I would have agreed to give the talk if I hadn't had an opportunity to talk about these issues. I take the idea of vocation, and the duties attached to it, very seriously. Although this is changing with the rise of JD/Ph.D's and VAPs, many entrants to the legal academic profession haven't had much of a chance yet to think about what it means to be a teacher or scholar and what duties go along with it. Once they put their heads down and start chasing tenure, it may be years before they look up again and think about these matters. I think it's important to think about those duties--especially the duty to think about one's students, and about the profession(s) as a whole--and take them seriously, right from the start.

Again, it was a complete pleasure to be at the conference and to meet some new people. I wish them luck in whatever path they take and I'm happy to hear from them via email or comments.   

Aspiring Law Professors Conference

I'm looking forward to seeing those who will be attending this conference. Just a note to let you know that I looked hard at the questions you sent me in response to my earlier post about this, and will try to address as many of them as I can, although not always in full detail. For my sins, I've also read through the many, many comments and questions at the Prawfs "Clearinghouse" post, and I've tried to keep those in mind too, although, boy, I encourage folks to relax a little, at least once they get to the meat market itself. (Not that I don't understand the anxiety; I just want to make sure people stay healthy, too.) If you have particular questions you'd like me to answer, please don't hesitate to email me and let me know in the next day or two. And if you're a professor out there with particular advice you think is very important, same thing. I hope I get to meet all of you, shy as I am, but I hope you won't be shy about saying hello or corresponding. And remember, it's a dry heat.  

Are All Legal Ethics Professors Worthless Idiots?

I ask this question not because I think it's true--I abhor generalizations like this (for the most part)--but because Paul Campos either couldn't pass up what he thought was a nice witticism, regardless of whether it is true or false, or he believes it to be an accurate statement.

Disclosure: I teach legal profession, although I mostly don't write in the area. I don't think whether I'm an idiot or not is related to that fact. 

Law and Religion Scholars: Attend This Program!

One more note on the AALS program this year. I ought to post this closer to the meeting, and perhaps I will repost it. But I was so excited I couldn't wait. This year the Law and Religion section will be holding a program titled "Freedom of the Church," in which a number of law and religion scholars will ask questions about the foundations, nature, and limits of "freedom of the church," or church autonomy, from both supportive and critical perspectives. I encourage everyone to attend. But there's another panel I hope you attend as well...

This year the Section on Sexual Orientation and Gender Identity Issues will host a program titled "Straight Supremacy in the Name of God: Examining Religious Liberty from the Standpoint of its Victims." Here's the program description:

Much has been done to reduce animus against sexual minorities. However, lesbian, gay, bisexual, and transgender persons and other sexual minorities can still face de jure and de facto discrimination. In particular, these offenses often thrive under the rubric of constitutionally-protected religious freedom. Because of their uniquely privileged status, animus claims based on faith can perpetuate and extend invidious forms of discrimination that would be unacceptable if predicated on any other ground. To provide a critical counterpoint, panelists will explore the tensions between religious liberty and the interests of sexual minorities and identify ways of engaging with and contesting religiously-framed bigotry.

The panelists, including one I have written about here before, include a number of fine scholars on subjects including law and sexuality, critical theory, and (in some cases) religion. I strongly encourage law and religion scholars, and others interested in the relationship between religion and law, policy, and politics, to attend this session! I'm sure you will be welcome and that the resulting dialogue between panelists and audience will be productive. 

 

Crisis? What Crisis?

Last year, I noted my disappointment that the AALS had approved no "hot topic" proposals for discussions of the so-called "law school crisis" at its annual meeting, but also commended it for devoting several formal panels to the topic. In the event, I still thought it had done too little to discuss questions relating to legal education and the legal economy or to target them better in the panels it did have, but something is surely better than nothing.

This year, the approach seems to be closer to nothing than to something. As far as I can tell from reading the 2013 program, there are only one or two such programs this year, and I think that's a generous count. (By all means correct me if you think I've read the program wrong!) One of those sessions involves Bill Henderson, so that's a distinct plus. Still, I'm dismayed that there isn't much more. As I did last year in the face of some cruder criticisms, I will certainly defend the idea of the professional meeting itself, and of panels discussing a wide range of doctrinal and theoretical issues primarily of interest to scholars. But I'm definitely disappointed that the AALS didn't do more to discuss what continue to be genuine questions about the welfare of students, the levels of tuition and debt, the future of graduates, failures of transparency by schools, and the soundness of what we do pedagogically. Perhaps the AALS will make up for its failure through the hot-topic process this time; I certainly hope so, and I certainly hope law professors out there will get busy planning and proposing such discussions.  

What Does it Mean for Religion to be "Out of Bounds?"

I appreciate Jay's post below asking why "religious questions" are "out of bounds" in elections. (And here is a link to his new book.) I have written about this issue once or twice before. I happen to agree that religious questions should not be out of bounds in politics, although I don't think that proposition alone says all that much. Despite that, I'm ultimately not sure I agree with the apparent premises of Jay's post, however.

To begin with, what does it mean for religion to be out of bounds in politics? Jay writes that "judgment calls when it comes to religion are somehow insulated from judgment calls in every other area of life," and that it's generally considered forbidden to criticize tenets of a faith because, among other things, "questioning someone's religious beliefs is supposed to be off-limits in American political discourse." The first thing I'd say in response is that, in fact, these kinds of questions seem to me to get asked all the time. Often they get asked as second-order questions, ie. articles asking how Romney's Mormonism would affect his chances in the GOP primaries. Sometimes they get asked as first-order questions: the Times runs profiles of all the major candidates, including Romney but also Santorum and Bachmann, and it certainly wrote about their religious beliefs (and, four years ago, Obama's relationship to faith and to Jeremiah Wright). And did the mainstream media really not "make much" of George W. Bush's Christian beliefs? Not from where I sit! Depending on the circles you travel in, moreover, plenty of these conversations took place elsewhere in the public dialogue than in the mainstream media. I see few FB posts on Romney's religion (aside from the occasional rude joke about sacred undergarments) but saw plenty about Bachmann and Santorum's views on faith. There is some kind of public norm that discourages asking too many such questions, or asking them too directly, but it is a distinctly permeable line. Certainly politicians themselves invoke the "out of bounds" rhetoric when it suits them, as Romney has from time to time (see my second article above), but I'm not sure that makes it a rule so much as a political strategy (and sometimes a detente between candidates), and in any event it is not scrupulously observed. 

Second, while I don't favor an "out of bounds" rule at all, I think it's worth considering the downsides of making this a widely discussed topic. Jay writes that "[r]eligious beliefs are as germane to being president as ideological ones." I agree with that in broad scope. But in application, things get very complicated very quickly. Ideological beliefs are germane to presidential elections, but they're not always great indicators, and anyone who thinks a candidate's ideology tells you everything you need to know about how he would govern will miss a good deal of the complexity and nuances that go into actual human life, including political life. That's all the more true with religion, at least at present in American political life. It is certainly relevant and can sometimes be highly relevant. But most large American religions are low-tension religions in practice--that is, they don't present strong conflicts between one's religious beliefs and obligations and one's actions in most aspects of civic life. Even when they might, people and churches have a way of reducing cognitive dissonance, either through individuals ignoring or reinterpreting faith tenets or churches changing their doctrines.

To me, some of these potential problems are evident in Jay's treatment of Romney and his LDS beliefs. He writes that Romney's status as a bishop shows that he has "really bought into these beliefs." But does it? And which beliefs? Perhaps what moves him most about this office is the spirit of "mutual assistance" that can end up with Senator Orrin Hatch "waist deep in a septic tank" helping a neighbor with manual work. He also writes that it is "dishonest" for Romney to "glide over" differences betwen Mormon and mainstream Christian faith perspectives, such as whether whether "Romney expects to be physically reincarnated on his own planet." But the more specific one gets with these doctrinal questions, often enough--as in this case--the less relevant it is to the candidate's actual performance in office. 

Again, I don't think these questions should be utterly out of bounds by any means. But I also don't think they really are out of bounds in practice. We hear them all the time, albeit they are usually badly asked and rarely asked. And saying they aren't out of bounds in principle doesn't free the people asking those questions from doing so with an appreciation for the nuances involved in an individual's relationship to his faith and in the relationship between his faith and his actions. And if we focus simply on those articles of faith, those truth-claims, that we find to be "completely untenable," then we really risk oversimplifying. A far tighter link between beliefs and policy is needed, and even then we may be misled. Jay's example of a candidate who believes we will be taken up by UFOs by 2013 is certainly relevant to how that candidate would carry out long-term policy; so would the views of a Jewish candidate who believes strongly, say, that justice is important because a divinely guided prophet told us so. But most faiths involve truth-claims that most other people find untenable, and as a practical matter few of those claims are going to be directly relevant to questions of policy, or will have other justifications, or will be only complexly related to how the candidate would carry out policy plans.

I think we are usually going to get more guidance and mileage out of asking questions about policy more directly, while treating questions about religious beliefs as potentially relevant but not as directly relevant as we might think. It would seem natural enough that if Romney raises the issue of weak public acknowledgment of God, ie. on coins, we could ask him, "Which God, exactly?" But we already know the answer to that question--"none, exactly, except insofar as it appeals to relevant voters." Would asking him the details of the LDS faith really add much to the conversation?    

In short, I think religious questions can be in bounds, and are certainly generally treated that way, but the fact that we rarely target religious questions highly specifically and vocally has some merits of its own, if only the merit of humility on questions of religious truth and their complex relation to both individual belief and individual action. The rhetorical device used by politicians of calling such questions "out of bounds" is a mistake, in my view, and one that politicians are often hypocritical about. But if we agreed that such questions are potentially in bounds but declared more or less forcefully that they ought to be approached carefully and with humility and not used as broadsides, we would have a fairly apt description of a fairly reasonable "rule" of discourse.     

 

Should Pro-Federalism-Oriented Abortion Opponents Vote for the Democrats?

With some trepidation, I thought I'd link to this post from my friends at Mirror of Justice on the Democratic and Republican platform positions on abortion. My interest is not in the abortion issue or in the question of whom to vote for, but in the fact that the Republican platform plank purports to reject the "federalism" argument on abortion: that the natural and appropriate thing is to return the abortion issue to the individual states. As I read it, it not only rejects that view in favor of a single national rule outlawing abortion, but also argues that this position is what the Fourteenth Amendment currently requires. As it turns out, I think platforms are highly imperfect ways to gauge much other than some combination of what parties purport to believe and what they are willing to trade away to particular wings of the party in exchange for not paying much attention to them later, other than to hand over a cabinet department or two. And notwithstanding the title of this post, I doubt the pro-federalism position is one taken by many Democrats. But since the title of the post at MoJ suggested that the platform language speaks for itself, I thought I would go ahead and listen.    

What is the Appropriate "God Number?"

This story, the entire front page of this admittedly crap newspaper, and other such stories, including those about the Democrats' last-minute amendments, make me wonder: what is the appropriate number of times to mention God in a party platform. What mention is high enough to pay respect to our religious heritage and the supremacy of the Almighty, but not so high that it risks violating the injunction in Matthew 6:5-8? Are zero or one too low? Is twelve too high?

As the last story suggests, we have a handy metric available, and it would be my pick: roughly as many times as "God" appears in the Constitution or the Declaration of Independence, but not many multiples more than that. But I welcome other numerical suggestions.

Tamanaha vs. Chemerinsky

At Balkinization, Brian Tamanaha and Erwin Chemerinsky have a fascinating set of responses to each other regarding Tamanaha's criticisms of UC Irvine Law School. Tamanaha argues that for a school that purported to dedicate itself to public service and used this as a raison d'etre for creating a new school in an already crowded region, Irvine undercut its own mission by seeking to immediately become a "Top 20" school. That made it, he argues, highly expensive, largely because of the hiring of top-notch faculty at competitive prices. As a result, he says, "UCI grads (class of 2015) will be forced by their debt burden to seek corporate law jobs regardless of a desire they might have to work in public service." "Although Irvine professors are fully entitled to earn market value," he adds, "what results is in tension with their advocacy of public service."

Chemerinsky is understandably a little gobsmacked by all the attention focused on Irvine. His most important empirical argument is that faculty salary do not account for all the rise in tuition at Irvine and that hiring much cheaper faculty would not have resulted in a significant reduction in tuition -- and that even a partial reduction would require eliminating the school's elaborate in-house clinical program. His most significant argument in general is that "all of the goals that Professor Tamanaha identifies in his book – maximizing the opportunity for jobs for our students, especially jobs that will allow students to pay back any loans, best serving the profession and the community – are best achieved if we succeed in being a top 20 law school. . . . [H]ad we followed Professor Tamanaha’s advice we could have achieved none of this and would have created a not very good fourth tier law school."

There's already enough black-and-white in this back-and-forth for me not to want to add to it by saying someone is completely right and the other person completely wrong. That said, I am far from persuaded by Chemerinsky's arguments.

Chemerinsky's core argument, one that is all too common in our profession and within our social class, is that it is essential for law schools to do "well" by conventional measures in order to do "good." There is some justice to that: as he writes, in a credential-obsessed environment, "public interest places can be as elitist in their hiring as firms and being a top tier law school is crucial if we are going to get our students public interest jobs." But the question, to me, is 1) whether the cost of doing "well" outweighs its putative benefits toward the goal of having a successful public service-oriented law school; and 2) whether Chemerinsky, as Tamanaha argues, sets up a false dichotomy between either having "a 'top 20' law school or a 'fourth tier' law school." This leaves out the possibility of genuinely innovating: of having a school that attempts to defy those categories altogether and focuses instead rigidly on the single goal of designing a fully public service-oriented law school. The subject matter and prestige of the professors Chemerinsky hired seems to have relatively little to do with that goal. In the way that liberal elites or elites of any kind do, it seems to me to end up accepting as a given, and benefiting from, all the conventional values of success and prestige that are part of the current system and have served its prominent faculty so well, until in the end the goal that was supposed to drive the whole enterprise becomes something closer to the cherry on top.

Nor do the figures that Chemerinsky supplies convince me the school has succeed in its public service goal. Chemerinsky writes:

Professor Tamanaha says that our public service goal “was doomed” by our desire to be a top school. Here he is just wrong. Ninety-eight percent of the students who graduated in May did pro bono work in law school. They averaged well over 100 hours each. We have similar numbers for the current third year class and almost every first year student last year did some pro bono work. We have full scholarships for students interested in public service. Additionally, we have provided a summer grant for every student doing public service work after his or her first or second year of law school. We are providing bridge funding for students who are looking for public interest work after graduation, paying their salary at a public interest organization for several months after the bar exam. We are implementing a generous loan forgiveness program.

These are all short-term measures involving what students do in school, not afterwards. They are not wholly unique: many law schools have pro bono requirements, and my own, much less expensive school has plenty of students logging large numbers of pro bono hours and receiving public interest certificates upon graduation. And what happens after graduation? "Of our initial graduating class from May 2012, 28% secured judicial clerkships, 15 in federal courts around the country and one on a state supreme court. About 40% received offers from major law firms. Some are working at government and public interest jobs. As of this writing, 80% of the Class of 2012 has full time employment." The results are at best unclear here--where did the students go after their clerkships? How many that received offers from major firms took them? Why were 20 percent not fully employed? how many took those "some" government and public interest jobs--but it does not suggest a dramatic success rate at encouraging public service work. A school devoted wholly to that goal might indeed be counted by the tastemakers as a "fourth tier" school--but would it do a better job of sending its students into long-term public interest work?

All this, I must say, reminds me of a case that is about to resurface in public discussion: Grutter, the Michigan Law School case. That case, too, involved a debate over the merits of and relationship between doing "well" versus doing "good." In his dissent, Justice Thomas pointed out that Michigan could have ensured a more racially diverse class by changing or lowering its admission standards, and accused it of seeking "to improve marginally the education it offers without sacrificing too much of its exclusivity and elite status." But Justice O'Connor, for the majority, responded that "[n]arrow tailoring does not require . . . a university to choose between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all racial groups."

The parallels are not exact, but they are there. Diversity, or public service, are treated as an important part of the educational mission, but not one that is so important that it requires sacrificing being viewed as an "elite" school in the eyes of others. Doing "good" is important, but so is doing "well." The result is a system that doesn't challenge the system--one in which Irvine is to be counted as a success as a "public service" school even if many of its graduates end up in large firms or underemployed, just as Michigan is to be counted as a success even if it could be even more racially diverse, in part because both schools still manage to do "well" as elite schools. Perhaps if we let go of some of our endless elitism, there would have been more room for both schools to either accept--or challenge altogether--what it means to be a "lower-tier" school, and for Irvine in particular to present us with a genuinely different model of what legal education means.  

A Systems Theory of Religion

Courtesy of my friends at St. John's Center for Law and Religion comes news of the publication in English of Niklas Luhmann's posthumous book, A Systems Theory of Religion. It looks very interesting. Here's a description:

A Systems Theory of Religion, still unfinished at Niklas Luhmann's death in 1998, was first published in German two years later thanks to the editorial work of André Kieserling. One of Luhmann's most important projects, it exemplifies his later work while redefining the subject matter of the sociology of religion. Religion, for Luhmann, is one of the many functionally differentiated social systems that make up modern society. All such subsystems consist entirely of communications and all are "autopoietic," which is to say, self-organizing and self-generating. Here, Luhmann explains how religion provides a code for coping with the complexity, opacity, and uncontrollability of our world. Religion functions to make definite the indefinite, to reconcile the immanent and the transcendent.

Synthesizing approaches as disparate as the philosophy of language, historical linguistics, deconstruction, and formal systems theory/cybernetics, A Systems Theory of Religiontakes on important topics that range from religion's meaning and evolution to secularization, turning decades of sociological assumptions on their head. It provides us with a fresh vocabulary and a fresh philosophical and sociological approach to one of society's most fundamental phenomena.

The book's scheduled publication date is in October. Aside from making a splendid Columbus Day gift, it may also provide a nice prelude or companion piece for readers--and I trust there will be many--of the book First Amendment Institutions, which should be published the following month.  

 

Law Erotica Studied

Larry Cunningham of St. John's Law School has posted an interesting study of the effect on law school rankings of law school marketing materials, aka "law porn," although I prefer to call it "law erotica" given the harsh reactions to the prior term. He is careful to note the difficulties of showing any causation, especially because his results may just show that schools with tons of money, which all things being equal may do well in the rankings, also have tons of money to spend on marketing materials. It's still interesting to read. Here's the abstract:

In the last few years, law schools have inundated each other with glossy brochures, postcards, magazines, and other marketing materials in an attempt to influence their “peer assessment scores” in the annual U.S. News and World Report rankings. This article describes a study that attempted to determine whether law schools’ print marketing efforts to one another have an impact on their U.S. News rankings data. From June to December 2011, the author’s school collected and coded all of the materials it had received from schools, including materials that it itself had sent to others. In total, 427 unique pieces of marketing were received from 125 of the 191 schools that were the subjects of this study. They varied considerably in size, format, content, and audience. A number of statistical tests were conducted to compare a school’s marketing efforts with its overall rank, overall score, peer assessment score, and tier, along with any change in those variables from the 2011 rankings to the 2012 ones. The results showed that there was some correlation between a school’s marketing efforts and its U.S. News data. Schools that sent marketing materials had, on average, higher tier placement and peer assessment scores; however, there was not a significant change in year-to-year rankings variables. The number of pieces a school sent during the study period was, for the most part, not significant. On the other hand, the number of pages in its materials was correlated with a number of U.S. News variables. Schools that sent longer, magazine-type publications geared towards a specific audience had higher U.S. News scores and also showed a slight improvement in their overall score between the two years of rankings data in this study. However, it is possible that a co-variate, such as institutional financial resources, may be causing the results. Additional study is needed to determine whether marketing materials have a longer-term effect on U.S. News ranking variables that cannot be captured in a one year study.

And from the paper:

[T]he results suggest that law schools are not seeing much in the way of impact from their marketing efforts towards one another. Most of the observed correlations were in a school’s current rank, tier, overall score, or peer assessment score—very few aspects of a school’s marketing efforts impacted, to any significant degree, a change in U.S. News data from year to year. The one exception appears to be magazines. Schools that send them have higher U.S. News results than those that do not. However, they come at a significant expense and, from year-to-year, may yield only a small increase in a school’s overall score, if there is a cause-and-effect relationship at all.

As Cunningham notes in the paper, I have written before in (partial) defense of some marketing materials, specifically 1) those (like the annual booklet produced by UVa) that actually tell us something useful about individual professors and their scholarship and 2) a few of the more informative magazines, although I've also opined that it's silly for some schools (Marquette and SMU stand out) to send widely magazines that are really oriented toward alumni. My own idiosyncratic tastes, however, hardly show that the benefits of distributing these materials justify the cost. I should also say that although it's less expensive to send out emails rather than printed materials, I ignore those emails even more thoroughly than the print materials, so even the marginal cost of distributing those materials by email may not be worth it.  

OUP Journals No Longer Available on Westlaw?

Daniel Sokol reports that Oxford University Press has pulled its journals from the Westlaw database, leaving them available primarily on Lexis-Nexis. I'm sorry to hear that. Apart from the citation count issue Daniel raises, I'm saddened because too few American legal scholars read work from non-US legal journals, and high-end subject matter journals, as it is. For those of us who stick mostly with WL, this is sad news and we'll have to try to route around. A good reminder that research is only as good as the database you use and that relying only on a single database for research can be problematic.  

"Time for Action" and some backlash

At the law school scam site, Deborah Jones Merritt has a post proposing that "students form official organizations at their law schools with the mission of 'promoting financial responsibility in legal education.'" The student groups, she suggests, could request more information from law schools about financials, network with alumni, advocate to bar officials, and so on. 

This seems like a perfectly sensible idea to me. For instance, I have urged my own school to do better on transparency issues, and I hope and trust that it will, but I'm only one voice (although for all I know other colleagues here have also urged the same thing), and such requests might be more easily sustained and repeated through a student group. 

I will note three points, however. The first is that some of the things Merritt suggests these groups should do are nicely geared toward individual schools and local legal employment markets, while others are really about national advocacy and lobbying. In terms of structure, she (or, more to the point, the students involved) will want to think about coordinating on a larger level and not just doing it piecemeal at each school, at least if they're serious about the national advocacy part of the proposal. 

Second, it's worth noting that her post has already occasioned many negative comments and the usual infighting. Hey, it's the Internet. But I assume there are many other students out there who are concerned about financial and other issues involving law schools but who are neither as fatalistic as some of the commenters on that site nor as apocalyptic (along "no, what we need is to remake capitalism" lines) as other commenters there. The constituency of students concerned about these issues is larger than just the commenters on scamblogs.

Third, some commenters complain that this is really a job for professors, not students. That's a perfectly fair point. They should not assume that no professors are doing anything, or that if something's not happening on the Internet it's not happening. But I don't see the formation of student groups along these lines precluding professorial involvement in the same issues; to the contrary, one might help spur the other.  

As I did last year, I will note for those students, lawyers, or blog denizens who favor more dramatic action and who have urged protests or demonstrations that the AALS has its annual convention in early January in New Orleans. I have never been terribly personally interested in public protests, marches, and so on, and I doubt that will change. But many professors are, and this would be the best possible time and place for such a demonstration. I'm neither encouraging nor discouraging it. But the AALS is still nearly five months away, and if there is any actual commitment to this kind of action, there's really no sufficiently good reason why it can't take place.    

"Having it All"

From the Atlantic, a wonderful article on "having it all." Enjoy. 

What Do You Mean "We?"

At the VC, Ilya Somin has a post, building on something published at Reason, discussing the "top ten libertarian Supreme Court decisions." He offers some criteria, suggests a list of his own, and closes with this: "Whether you agree with my particular picks or not, the more important point is that we need to be more rigorous and systematic in our comparative evaluations of Supreme Court decisions." 

On the Internet, it can be tough to distinguish between sincere and disingenuous and/or sarcastic questions. Let me be clear that I'm actually being sincere on this one: I find Ilya's last sentence kind of ambiguous. (I find the idea of "libertarian Supreme Court decisions" a little ambiguous too. But I assume it means "Supreme Court decisions that libertarians find consistent with and pleasing to the current prevailing of their views.") Does "we" mean libertarians, or everyone? Does he mean that we need to be more rigorous and systematic in the comparative evaluation of Supreme Court decisions in general? Or that we need to be more rigorous and systematic when constructing "top ten" lists of this kind? Or just that libertarians in particular need to be more rigorous and systematic when constructing their own top ten lists?

Nothing of cosmic significance turns on this, but I found it interesting because it affects whether any of this can reasonably be said to be "important." I think the criteria that Somin proposes for identifying the "best" Supreme Court decisions can be applied by non-libertarians in making their own lists. (I say "best" rather than "most important" or "most influential" because Ilya's criteria include that the decision must have prevented "large-scale injustices" and that it be "legally correct.") So perhaps the best reading of that last sentence is that "we" means everyone, not just libertarians, and that everyone needs to be more rigorous in making their best-of or worst-of lists.

Given the overall focus of the post and the use of that slippery "we" pronoun, however, he may simply mean "libertarians." If that's so, it's a lot harder for me to figure out why it's especially important to come up with rigorous criteria for identifying the top ten Supreme Court decisions pleasing to contemporary libertarians. If the activity itself is unimportant, does it really matter? I suppose one value of doing so has to do with the much-discussed question of canon formation. To the extent that canons help influence our understanding of history and our shaping of values, there may be some value in doing so, and doing so rigorously. But without wanting to be too dismissive of libertarianism as such (it has certainly captured the allegiance of an ever-larger percentage of the students in my con-law classes at schools across the country), it doesn't seem to be a terribly important activity, any more than compiling a list of the top ten English pastoral symphonies, or the the top ten Fourierist Supreme Court decisions, or the top nine members of the Fellowship of the Ring in descending order. More of a parlor game, really.

Even if we take the broader meaning of "we," which I'm inclined to do, I still tend to question the value of this kind of top-ten-list enthusiasm. (Which is hardly limited to libertarians or lawyers, of course. The standard liberal trope on the Supreme Court canon is that "respectable" lawyers are supposed to love Brown and hate Lochner, which also seems silly to me.) It's not really quite the same as canon formation, I think. Sound canon-formation, in my view, has as much or more to do with what is important and influential than with what is "good" or the "best." Although all canon formation is necessarily partial, ideally it should not be emphatically and narrowly partial. It should be a question of what's worth talking about, not who is on or off the team or what is "legally correct." In that sense, a well-constructed canon should include the anti-canon.

Hey, it's Friday, and it's the Internet. No big deal one way or the other, and I'm not trying to be especially barbed about the matter. I just found the ambiguity interesting, and was also interested in what the whole conversation says about our penchant for making lists, especially of the "top ten" variety. It's not a uniquely American pastime, I'm sure. But it sure is an oddly popular American pastime!    

Another Round of Rounds

The litigation in Planned Parenthood Minnesota, North Dakota, and South Dakota v. Rounds has been fascinating for students of compelled speech, unconstitutional conditions doctrine, and the institutional turn in the First Amendment. I just turned in my edits on page proofs for my forthcoming book, First Amendment Institutions (out in November! Makes a lovely Thanksgiving present!), and it features in chapter 10 in my discussion of professional speech and First Amendment institutionalism. Of course, just as I did so the Eighth Circuit issued a new en banc opinion that won't make it into the book. (It also features heavily in this article by Robert Post.) The new opinion, like prior opinions of the Eighth Circuit in this case, is misguided, in my view.

The underlying statute is a South Dakota law that requires physicians to make a variety of statements to patients for the purposes of obtaining their informed consent for an abortion. They include:

* That the abortion will terminate the life of a whole, separate, unique, living human being;

* A description of all known medical risks of the procedure and statistically significant risk factors to which the pregnant woman would be subjected, including:

(i) Depression and related psychological distress;

(ii) Increased risk of suicide ideation and suicide;

Planned Parenthood sued, claiming both a violation of the undue burden test and a violation of the First Amendment rights of doctors and patients. Prior decisions, especially in the Eighth Circuit, have upheld most of the requirements. The latest round concerned the law's requirement that physicians inform patients that abortions present a risk of "increased risk of suicide ideation and suicide." In upholding that requirement, the majority of the divided en banc court relied heavily on the statement in Planned Parenthood v. Casey that requiring the provision of accurate, nonmisleading information to patients does not present an undue burden, as well as Casey's statement that abortion laws, like other medical procedures, implicate "the physician's First Amendment rights not to speak," but "only as part of the practice of medicine, subject to reasonable licensing and regulation by the State." Quoting an earlier round of Rounds, it said: "Thus, with respect to First Amendment concerns, 'while the State cannot compel an individual simply to speak the State's ideological message, it can use its regulatory authority to require a physician to provide truthful, non-misleading information relevant to a patient's decision to have an abortion, even if that information might also encourage the patient to choose childbirth over abortion.'" It concluded that the medical evidence supported the conclusion that the required statement was accurate and nonmisleading. 

Jennifer Keighly has a post on the new opinion at Balkinization. I suspect her interest is more in reproductive rights per se than free speech per se (she is a fellow at a program on reproductive justice), although I may be wrong. In any event, I agree with her that the court erred by collapsing the First Amendment inquiry so thoroughly into the Casey undue burden analysis and relying too heavily on the statement from Casey about the reasonable licensing and regulation of medicine by the state. I wish the Eighth Circuit had given stronger consideration to Legal Services Corporation v. Velazquez, and its statement that the government cannot seek to control an existing medium of speech in a way that distorts its functioning. The regulatory power of the state with respect to medicine and particularly professional speech by physicians is, in my view, not absolute; it is a kind of mutual delegation of authority between medical professionals and the state in which the profession relies on some of the state's coercive power but ought to retain the right to maintain its own standards and its own view of what constitutes sound professional speech even in the face of state regulation. In some ways, I think that is even more true of medical speech than of medical conduct. Doctors should not be made to read scripts written by the state, even where the state believes that information to be true, where the best practices of the profession suggest that such a speech should not be read.

I do not blame the Eighth Circuit entirely. As I write in my book, the court cannot be faulted simply for following the doctrine; but we can and should fault the doctrine itself. Still, and regardless of the abortion controversy itself, I think this is an unfortunate decision and that institutionalists, whatever their views on abortion, should agree with this conclusion.  

 

 

Douthat on Religious Freedom: Too Much and Not Enough

It is, of course, generally a mistake to expect much from the columnists of the New York Times, whatever their individual politics. Neither the format nor the office seem especially conducive to great work. I can understand why some of my friends like the work of Ross Douthat, or Charles Blow on the other end of the political spectrum, though both strike me as too callow for their own good. I could understand why some of those friends admired Douthat's latest column, whose title, "Defining Religious Liberty Down," borrows a standard conservative trope. But I have problems with it. 

To begin with, Douthat argues at the outset that the reference to "the free exercise" of religion "suggests a recognition that religious faith cannot be reduced to a purely private or individual affair." I agree with the sentiment, but not with the idea that it's immanent in the text. Certainly the founding era believed religion was a public virtue. But the privatization-of-religion bargain was hardly a post-constitutional innovation; it was already firmly present in public thought, if not fully developed, at the time of the Enlightenment, if not the Reformation itself, and certainly by the time the Bill of Rights was ratified.

Nor do I think Douthat's examples of recent actions affecting freedom of religion are all that a propos, especially of his argument that "there seems to be a great deal of confusion about this point in the Western leadership class today." As he notes, there will always be conflicts about the limits of permissible religious practice in a society, and by no means will all the arguments for restriction of religious freedom come from non-religious individuals. Of his particular examples, one--the government's contraception mandate and the particular form of compromise it strikes--is a policy I disagree with. But as he notes, that compromise does extend considerable leeway to religious organizations. Douthat argues that it doesn't go far enough, and I think he's right; but neither does he tell us where he thinks the limits should lie, and why an exemption shouldn't apply, for instance, to any and every employer with religious objections. Another example, the recent German court decision on circumcision, was roundly opposed by many German legislators, who are themselves members of the "Western leadership class." Finally, naturlich, he raises the Chik-Fil-A controversy. I was bothered by the fact that a couple of Facebook friends reprinted the threat letter from Mayor Menino of Boston with seeming approval last week. But that controversy is better viewed as a speech issue than a religious issue tout court, and in any event the pandering of those politicians was widely opposed, and not just by conservatives.

Douthat makes two more points. First, he writes: "It may seem strange that anyone could look around the pornography-saturated, fertility-challenged, family-breakdown-plagued West and see a society menaced by a repressive puritanism. But it’s clear that this perspective is widely and sincerely held." I sympathize with this, to some degree. I don't think our society is genuinly "menaced by a repressive puritanism." But one might read Douthat as suggesting that there is no repressive puritanism out there, and/or that all the pathologies he mentions come from the irreligious sector of society. Neither is true. Of course there is a puritan streak in Western society. The fact that it's also matched by a licentious and individualist streak presents a seeming tension (only seeming, because the puritan and individualistic streaks often come from the same groups), but that doesn't mean both aren't true. Yes, it's selectively applied: In my own town of Tuscaloosa, the recent showing of a fairly innocuous art film that involved a teenaged girl in Norway who experiments with masturbation prompted protests and an effort to prevent the publicly funded local art theater from showing the film (the showing of which was itself privately funded), although much of the decidedly religious local population also can't buy enough copies of Fifty Shades of Grey or get enough of the sexualization of young girls in beauty pageants and game-day outfits. And many of the pathologies Douthat mentions are fully present among religious regions of the United States as well. 

Finally, he writes: "It would be refreshing, though, if it were expressed honestly, without the 'of course we respect religious freedom' facade. If you want to fine Catholic hospitals for following Catholic teaching, or prevent Jewish parents from circumcising their sons, or ban Chick-fil-A in Boston, then don’t tell religious people that you respect our freedoms. Say what you really think: that the exercise of our religion threatens all that’s good and decent, and that you’re going to use the levers of power to bend us to your will." That's too strong a statement in a society in which, as he has already acknowledged, there are genuine contests over the scope of religious freedom and some limits are inevitable. There are, of course, people out there who fit the bill of indictment that Douthat is presenting. But that doesn't make the extreme position Douthat is describing one that is held by all those who would disagree with him over the limits of religious freedom.

I agree with his call for candor, and part of that candor involves acknowledging that there are real contests over power here, and that some are happy to call the state in to assist in that power play. But once we see things in terms of power, then Douthat might exercise a corresponding candor about those who fall on the extremes on the other side, some of whom believe that private choices that contradict their own view of what is religiously and personally virtuous in society are threats to all that is good and decent and are happy to enlist the state in using the levers of power to enforce their views. Or he might decline to rush so readily to characterize just one side of the debate according to its extremes while painting the most forgiving possible picture of the other side. He is still right that in the end, battles over the scope of religious freedom and permissible personal conduct ultimately involve battles over the use of power. The people in the middle can't avoid that contest either. But he might have done a better job of recognizing that there are many such people just the same. To hope for an absence of caricatures in a New York Times column is unrealistic. It would be nice if the caricatures weren't so one-sided, though. 

Consumer Claim Against Law Schools Survives Motion to Dismiss

A state court in California has rejected demurrers by Golden Gate University and the University of San Francisco's law schools to consumer fraud actions filed against each of those schools, allowing the cases to move forward to the discovery phase. This is the first set of recent cases against the law schools that I'm aware of in which such claims were not dismissed prior to further factual development. Here is the order in the Golden Gate case; both orders are available at Paul Campos's blog, and I must also thank the folks at Law School Transparency for posting the orders. I'm afraid I've been occupied with other things and haven't had a chance to take a proper look at them, but I wanted to post about this before too much time passed. 

UPDATE: I stand corrected. From a reader email: "The Thomas Jefferson case is in discovery now, though these two suits against GG and USF are the first ones from the class action consortium to make it this far." Thanks for the correction.

Why More Elite Schools, and Judging Adjuncts

First, a quick note to say thank you to the many, many commentators (by Prawfs standards) on my last two posts. I'm especially grateful for the comments on the paper and welcome further comments by email. If there was any kind of culture clash in the comments between the usual tweediness of the Prawfs commenter and some of the folks who sailed in from the so-called scamblogs, I expected and welcomed it: one of my goals in putting this paper out there early was definitely to expose it to constituencies that might not otherwise read it and get their feedback, positive and negative. Same with my solicitation of advice for my upcoming talk to aspiring law professors: I'm sure I won't possibly be able to cover everything, and in fact some of the commentary convinced me that I will have to give more straight advice than I'd planned on. But I did and do want to make the "crisis" a part of that talk, not so much in terms of warning aspiring profs about mass closures but more in terms of emphasizing the duty of faculty governance among even new professors, and that this duty includes worrying about precisely these issues. In all, although the discussion got heated, I was thrilled by how productive and relatively civil it was, and very grateful for the many questions and thoughts.

Now, on to new stuff.

Courtesy of Paul Caron, I see that Erwin Chemerinsky has a new op-ed discussing Brian Tamanaha's law school reform proposals, and particularly some of Tamanaha's criticisms of UC-Irvine. (Note that the somewhat unfortunate title of the piece--"You get what you pay for in legal education"--may have been an editor's choice rather than the author's.) I want to focus on two of the points he makes in his piece.

The first is this statement:

Tamanaha says that UCI Law School "squandered" its opportunity, and that where we "went wrong was in setting out to create an elite law school." My goal, and that of my university, has been to create a top 20 law school from the outset. Recently, a study of faculty scholarly impact ranked UCI Law's faculty seventh in the country (behind Yale, Harvard, Chicago, Stanford, New York University and Columbia). Our students are of the caliber of top 20 law schools by traditional measures of LSAT and grade-point averages. Our applications were up 105 percent this year. Of the 58 students who graduated in May, 16 have judicial clerkships across the country, which puts us behind only Yale and Stanford among top 20 schools in the percentage of students who will be clerking. 

If we had followed Tamanaha's advice, we would not have faculty remotely of this quality and then never could have attracted students of this caliber. We surely would have been a fourth-tier law school. It is ironic that he would be advocating that because so much of his book is about demonstrating the serious problems such schools face. 

What's missing from this response, I think, is why it made sense to set out to create a "top 20 law school from the outset." The thing about that is that there were, of course, already 20 such schools in existence. (Or, by law school math, about 25 or 30.) Chemerinsky may or may not be right about the kind of causal mechanism he describes in the second paragraph. But to my mind, he neither explains why the goal of creating a top 20 school made sense, nor why he couldn't have instead rejected the kind of "tier" notions he uses altogether, or used the law school's startup cash to think about what a first-rate "second" or "third" tier school could be. I am guessing Southern California and its legal market and would-be client base are probably much more in need of the latter.

The second thing is something I'd like to ask readers about. Chemerinsky writes:

Cutting a law faculty in half would require relying far more on relatively low-cost adjunct faculty. Tamanaha's assumption is that relying on practitioners rather than professors to teach more classes won't compromise the quality of the education students receive. Here I think he is just wrong. There are certainly some spectacular adjunct professors at every law school, and they play a vital role. But as I see each year when I read the student evaluations at my school, overall the evaluations for the full-time faculty are substantially better than they are for the adjuncts. It is easy to understand why. Teaching is a skill, and most people get better the more they do it. Moreover, full-time faculty generally have more time to prepare than adjunct professors who usually have busy practices. 

Adjunct faculty are available far less for students than full-time faculty. Tamanaha gives no weight to the substantial learning that occurs outside of the classroom. I think he tremendously underestimates the amount that most faculty are around the school and available to students. 

I also support the more vigorous use of adjuncts. More to the point, I think we already do it at many or most law schools but haven't fully acknowledged it, and the more we do the more likely we are to fully integrate adjuncts into our community and erect quality controls. But I would like to know the sense of readers, whether professors or students, out there. Is Chemerinsky right that full-time faculty are better teachers than adjuncts, or that adjuncts are far less available to students than full-time faculty? What are your own impressions of adjunct versus full-time faculty, both the positives and the negatives? And how, apart from evaluations, can we get the most and highest use out of adjuncts? 

What Would You Tell Aspiring Law Professors?

Dan was kind enough to note below that I'll be speaking at the upcoming Aspiring Law Professors conference at Arizona State; the details are here. I have heard from several past attendees that they found the conference very useful. I should note in fairness the obvious point that attending is no guarantee of a successful application; I assume the value of the trip will be greatest for those who have a viable shot but would like some serious advice and an opportunity for practice and refinement. 

While I have some thoughts on what I want to say, I would be very happy to solicit any advice about what you would tell aspiring law professors if given the chance. In doing so, I should note two related matters. First, I appreciate the juxtaposition between this post and my recent post about "failing law schools." While hoping to forestall unduly obvious "advice" along the lines of "don't apply at all," "burn down the schools," "withdraw until you have practiced at least 20 years," and so on, I do think the juxtaposition is relevant and, indeed, it's the main reason I was so glad to agree to come. I do intend to bring some of these issues into my talk. I do think people entering a teaching profession, in this or any other time, have an obligation to think about what that position requires of them, including, say, getting to know one's local legal market and becoming actively involved in faculty governance. Second, for better or worse, for purposes of this talk I am taking law schools' hiring preferences as a given. If I ever give a talk to aspiring hiring committee members, my text might differ on this point. In any event, I welcome advice on what advice to give! -- either about how to get a teaching job or about what duties that job entails. I posted the same request on Facebook and got some very useful advice (thank you, "friends"), so I thought I'd ask here as well.   

Two Good Posts on Whether to Attend Law School

Deborah Jones Merritt has two very interesting posts -- here and here -- about factors that may influence an incoming or current student's decision whether to attend (or continue attending) law school. 

"What Ails the Law Schools?": A Discussion Draft

There are "risks" in putting up an early draft of a paper on SSRN, but sometimes one generally wants to invite discussion and feedback. This is one of those occasions. I hope those who are interested in legal education, which I assume includes most of the readers of this blog, will take a look at this draft paper titled "What Ails the Law Schools?" and feel free to send me any comments. The paper, which focuses on Brian Tamanaha's Failing Law Schools and Walter Olson's recent book Schools for Misrule, is a long way from its publication date, and although the editing process will be over quite some time before that, I still have ample time to incorporate any feedback. I'm glad there has been increased public discussion of these issues in our community over the last year or two and this paper is intended more to present those issues clearly than anything else, although of course I offer some views of my own. Comments are welcome. Here's the abstract:

Everyone engaged in legal education and not utterly asleep agrees that there is a "law school crisis." Building on recent works by Brian Tamanaha and Walter Olson, this paper discusses its causes and potential solutions, using a typical dichotomy in recent populist movements--the "one percent" versus "99 percent" meme--as a lens. It examines arguments that the problem is economic and that it is primarily cultural; although I conclude the problem is economic and structural far more than cultural, I also argue that one of Tamanaha's primary recommendations for reform--that law schools ought to display more experimentation and institutional pluralism, and that ABA accreditation requirements ought to make this more possible--goes some way toward addressing both diagnoses. The paper is more descriptive than prescriptive, although I offer some thoughts on solutions. I emphasize three things: 1) law schools would be better off focusing on regional than national markets, although the US News rankings make regionally oriented approaches more difficult; 2) a serious increase in meaningful faculty governance and involvement is needed; and 3) the role and needs of the client have been surprisingly marginal in recent discussions of law school reform. The client needs to be a prominent part of reform discussions, which suggests, contrary to some extant views, that curricular reform ought to continue to be part of the discussion along with economic and structural reform. 

This is an early and imperfect draft intended for discussion and feedback, given both the importance of the issue and the need for increased public discussion. Comments are welcome.

 

Arms Control Law Blog

My Alabama colleague, Dan Joyner, has started a new group blog devoted to arms control law. Unlike existing blogs in the field, which are generally more devoted to policy than law, this one will focus closely on the legal issues associated with arms control. It's not my field, but the posts and the contributors look extremely impressive. Arms control/international law types, bookmark away! 

Is Religious Liberty Vulnerable, or is Religious Liberty Talk Too Insulated?

There have been some interesting freedom of religion discussions in the past day or two. Steve Smith, guesting at the CLR Forum, has a post inspired by Doug Laycock's recent article “Sex, Atheism, and the Free Exercise of Religion,” 88 Detroit-Mercy L. Rev. 407 (2011). Laycock writes in that article that “[f]or the first time in nearly 300 years, important forces in American society are questioning the free exercise of religion in principle– suggesting that free exercise of religion may be a bad idea, or at least, a right to be minimized.” One of the key sources of that view, according to Steve's precis of the article, is the relationship of some in the gay rights movement toward religion. Steve closes by suggesting that "[Laycock's] essay should serve as a warning to those who think expressions of concern about religious freedom are trumped up or 'much ado about nothing,'" and by arguing that "[o]ne lesson I would draw (and that Doug in fact draws) is that the problem of articulating persuasive justifications for religious freedom is not just an academic exercise." 

In response, Marc DeGirolami wonders whether it is "true that what is needed are new justifications for religious liberty -- new philosophical defenses, updated for the problems and opinions of today," or whether "the fundamental disagreements that we have [are] at bottom matters of intuition, identity, group loyalty, and emotion, and therefore often largely impervious to and unconcerned with the type of high-conceptual discourse that is so central to the academic enterprise." He adds: "Again, if the issue is persuasion, what is the most effective method of achieving it?" I offer my own take below.

For outsiders to the conversation, it is true that there have been some very valuable recent works by Brian Leiter, Micah Schwartzman, and others that question whether religion can really be said to be special or distinct as a principled matter. (And there have been responses too, including a forthcoming book by Andrew Koppelman.) They pose hard questions to supporters of the theory of religious freedom, especially regarding the breadth of freedom of conscience. But I am closer to Marc in my views on how much these arguments really have to do with "expressions of concern about religious freedom" or the state of religious freedom on the ground, for two reasons. First, those arguments about whether religion is unique or not operate at a high level of principle. They generally abstract away from both doctrine and, especially, history and text. They raise hard questions about whether religious freedom, as a matter of pure principle, can be justified as a unique matter, but even on their own terms they do not require us to jettison religious freedom as a practical and doctrinal matter. (And, in my view, they are only very dimly related to the on-the-ground discussions these days, sparked by things such as the contraception mandate, about whether religious freedom in the United States is under threat these days.)

Second, those discussions have taken place within the field of law and religion scholarship, not outside it. They are very much a part of the discussion, not apart from it. Whatever philosophical challenge they pose to religious freedom as a unique thing, they remain constructive and involved, not indifferent or oppositional. By contrast, some of the most fervent academic attacks on religious freedom have taken place outside the conversation altogether. The assignment of labor in the legal academy often creates cloisters and false pictures. In this case, the result of that division is that some of the most stringent conversations about, say, religion versus gay rights have taken place with few or no academics who take religious freedom seriously in the room--sometimes deliberately so. (And sometimes there have been similar responses on the other side.) Some of those conversations operate from such different premises that it is hard to say they have been influenced by work like Leiter's or Schwartzman's; indeed, I doubt that some of the hardline opponents of religious freedom in the gay rights scholarship have even read those pieces, and they certainly haven't engaged with them.

In short, I doubt that Steve is right that the kinds of discussions law and religion scholars have been having lately about whether religious freedom exists as a distinct principle say anything about the broader question of the status of religious freedom today. The real problem is that there have been two very distinct discussions taking place in two different places, in virtually sealed rooms, having little to do with each other. If that's right, Marc's question--"if the issue is persuasion, what is the most effective method of achieving it?"--is all the more pressing. On both sides, there are those who think persuasion is a non-issue because any conversation is pointless. 

On this point, I would add two final things. First, not everyone thinks discussions between these two somewhat distinct groups are impossible or fruitless; prominent among them is Doug Laycock himself, who has been involved in efforts to bring both sides together in conversation.

Second, though, as I wrote in one of my earlier posts cited above, those constructive discussions have been between moderates, not between the real polar opposites--those who think it isn't worth discussing religious freedom at all, and those who think that any "'grand bargain'" between the contending sides "is an illusion we should dismiss from our minds." There are genuinely illiberal supporters of gay rights and genuinely illiberal supporters of religious freedom, both in the academy and certainly outside it. For these groups, it may be that "persuasion" is a lost cause; they may have little interest in carrying out conversations in the same room at all. But I think that instead of having only slightly disquieting conversations with folks like Leiter and Schwartzman, who think there are real philosophical problems with religious freedom but are still very much a part of the religious freedom discussion, we religious freedom scholars need to open up the room, even to those who disdain "the liberal apologetics that passes for academic engagement of religion these days." It is possible that mutual engagement will fail utterly. But failing to try, it seems to me, will both make the religious freedom discussion deceptively easy, because it won't reflect some very basic views and facts in the world, and make it all too much of an "academic exercise."           

BREAKING: Speculation About the Supreme Court!

David Kopel has provided what he calls a bar-review-style summary of NFIB v. Sibelius. (This trend of major litigation filed against famous classical composers worries me a little, incidentally.) I thought his ending was worth noting:

If recent media reports are true, then the second Justice Roberts is the Justice who really did abandon what he considered to be a correct interpretation of the law, submitting to the threats of a President who attempted (this time successfully) to coerce the Supreme Court of the United States.

It seems to me the weak points in this analysis are that the reports didn't say that, that this is rather an extreme use of the word "coerce," and that if this is what counts as coercion then it is fairly routine. (Kudos to the commenter on another post at VC who wondered, a la Monty Python and the Holy Grail, if the President would threaten to "taunt" the Court "a second time.") Still, all that is covered by using the "if true" lead-in, right? So I agree: If all this is true, it is truly shocking.

In other news... 

What's the Deal With All the Leaks?

Both Orin and Jonathan Adler have put up a number of valuable posts in the wake of the ACA decision. (Others on the VC blog have also posted a lot on that case recently.) Alas, Orin's new post is about more Leakapalooza, picking up on a new Jan Crawford story. Orin's post is good, although I regret that continued posts are being made possible by apparent continued leaks.

As I wrote in an earlier post, I trust Crawford's work, which (unlike some others) seems professionally done. Notwithstanding two of the VC posters, it is not safe to assume that Crawford's stories tell us what Roberts was actually thinking or why he acted as he did; Crawford is always quite careful to make clear that she is conveying what her sources told her, not what Roberts himself said. (A couple of commenters at that site appear to take the view that a journalist would not print such statements unless she agreed with the truth-claims made by those sources. That is incorrect, of course.) And notwithstanding at least one of the VC posters, it is not correct to say on the basis of these stories that "The fact that this decision was apparently political, rather than legal, completely undermines its legitimacy as a precedent." Strictly speaking, the stories are better windows into the views of the leakers, whoever they may be, than of Roberts himself, so such a statement, even if prefaced by words like "if true," would be presumptuous. In any event, it would take a wholly unrealistic worldview to draw a firm distinction between "political" and "legal" decisions by the Supreme Court, to assume that this decision is unique in that regard, or to construct some new rule of precedential effect that takes news stories into account. 

But we should still be disturbed by the leaks, obviously. Much of the outrage has been about what these leaks do to the Court as an institution. I am beginning to be just as concerned that these leaks, from whatever source, are aimed at the November elections. Granted that most people quite sensibly are not that interested in Supreme Court inside baseball, and will barely remember July's stories in November. But leakers may dream--and what these leakers may be dreaming of is that these stories will help reinforce the views of the base, if not the general electorate, that a new President is needed to straighten out a "wobbly" and/or illegimitate Court. It's bad enough when lawyers (if these leakers are lawyers) think they know much about politics; certainly an apparent privileged position on the Court should not be a base from which to engage clumsily in politics, institutional or electoral. (Granted that this has not stopped members of the Court, including liberal Justices, before. And, of course, non-insiders are free to make such arguments about the election and the Court.)  

One addendum. A number of commenters on the VC site have insisted, based on speculation (has there been any other kind of basis for all this discussion?), that Randy Barnett may or must have known of a leak before the Court's decision and have been pressing him to say something about this. I think this is unhelpful. Repeating this allegation many times, and then taking his silence as indicative of something, simply sets up a poor dynamic in which one's charges seem to grow in credibility because the target refuses to address them, even though no underlying facts have changed. They attempt to set up a presumption of bad faith on the part of the accused. I prefer to assume Randy is operating in good faith on this matter. For one thing, he is a member of the Supreme Court bar and would likely have an ethical duty to report the link and its source(s) if he had one. For another, as I say, the underlying charge, no matter how often it is repeated, is based on conjecture.

What I would welcome from Randy, on the other hand, is a clarification. During the litigation, he seemed fairly adamant to me in pressing the point that it was irresponsible to assume that his arguments were aimed at anything other than this law and the immediate relevant precedents, which in any event he argued required overturning the law. But now that the main decision has been handed down, I would love to see an itemized list from Randy discussing (1) the major federal laws he thinks are unconstitutional and (2) the major Supreme Court precedents he thinks are "illegitimate" or that ought to be struck down. Legal academics are not always so shy on this point. I know Randy has written a book or two on this subject and one could start there, but I would really appreciate an updated list, so that I (and the Court) can be sure of his long game the next time he is litigating a case, and to avoid any unfair accusations about the implications of some argument he is making the next time he pursues a case to the Supreme Court.    

Addendum: A Note on Sourcing

I really didn't want to add more on Leakapalooza. But, from a journalistic perspective, I did want to note one distinction between Jan Crawford's story and the others that have appeared so far. Crawford specified in her story that she had two sources, although, at least in the initial report, I don't recall her specifying that the sources were independent. Paul Campos's story today is limited to one source -- although, to his credit, he is quite clear about that and readers thus have some basis to read his story cautiously or not as they please. Neither of the National Review leak stories are very specific. They both use plural language (e.g., "my sources"), but not very specific language; indeed, so casual that, while I am inclined to take them at their word, I would be equally comfortable with the possibility that each of them had only one source.

I am not, of course, accusing anyone of dishonesty. Maybe flowerpots have been moved on and off of balconies all over DC since oral argument. But having a source only means that someone was willing to tell you something; it's no guarantee that the disclosure is true, or (more to the point) that it's the whole truth. As Dr. House used to say, "Everybody spins." That's why best practices in journalism for a long time have emphasized, especially where the story is controversial and the source is anonymous, the importance of finding multiple sources or other means of corroboration, and/or of cabining one's claims carefully. Which, to her credit, is what Crawford appears to have done, or tried to do, and why hers appears to me to be the most reliable and/or useful of the "leak" stories. (Again, although I think Campos's story falls short of best practices in that sense, he is creditably clear about its limitations, and it's still a damn good "get.") It is no surprise that Crawford is the only one of the bunch who is a serious full-time reporter.

"Because He Can Take It"

I don't have much of substance that I care to add to Leakapalooza, although I was amused by Randy Barnett's quote in the John Fund story. But I would like to add one piece of completely responsible speculation, and an analogy (with thanks to my former student Adam Pittman for supplying it). I am beginning to think the source of all the leaks was . . . Chief Justice John Roberts.

Why? The received narrative is that Roberts upheld the ACA to save the institutional interests of the Court in a politically divided season. But what if he was playing for higher stakes than that? I don't doubt that the man loves his country. This has been a divisive era. Obamacare itself was divisive, and either upholding it or striking it down would be politically divisive. What the nation needs is unanimity, and the best way to find that is by finding a common villain. Roberts may have thought he could provide unanimity through the Nixon-goes-to-China move of a conservative authoring the majority opinion. But, perhaps to his surprise, although he received liberal love, conservatives did not close ranks around him. A further, shattering step was needed. By leaking that he wrote both the majority decision upholding the ACA and the dissent arguing that it should be struck down, Chief Justice Roberts heroically becomes that common villain. Now the nation can say, with one voice, "I hated Roberts's opinion in NFIB," and as long as they remain vague about which opinion they mean, the nation -- on the eve of Independence Day, no less! -- can once again come together. 

Who does that make Chief Justice Roberts? Well, his robe looks a little like a black cape. He has dark hair and a reasonably strong jawline. He looks kind of like a playboy multimillionaire. He has been hunted, all the way to Malta. "He's a silent guardian. A watchful protector. A dark knight."

  

God bless you, dark knight, and happy Independence Day.

Did I Miss the Memo?

I'm no fan of semantic cuteness in politics. I'm not fond of George Lakoff's popularized books on the subject, I don't really care what ATLA calls itself, and I can't believe anyone takes Frank Luntz's memos seriously. That said, I can't help but notice that David Kopel, who delighted in using the phrase "Obamacare" until roughly late June of this year (say, last Thursday), explaining that the President "proudly embraces" it, has put up a half-dozen or so posts about the NFIB ruling since it came down and has failed to use the word once. Maybe the "Obamacare" macro on his laptop isn't working.

What Can the Elite Law Schools Do About the "Law School Crisis?"

One last "law school crisis" thought for today. A while back, my colleague Rick had a post about Brian T.'s new book and asked, toward the end of the post, "So, after reading Failing Law Schools, what big steps could, or should, the faculty and administration at [elite law] schools do?  What could they do to lead, that might have ripple / cascade effects?" I have heard various views on this matter--including the idea that, given the cascade effect on salaries caused by the rankings race, the professors at those schools could start by accepting a cut in their very generous salaries. 

I am generally a little skeptical about reform proposals that start at the very top of what is effectively a two-tiered market. For one thing, this is like arguing that "[w]e may need to put a woman in the White House before we are able to change the conditions of the women working at Walmart," or that we should focus our attentions with respect to equal educational opportunity on affirmative action at elite law schools rather than K-12 reform, because the former will provide important "role models" and new perspectives in the leadership. There is some truth to it, to be sure, but it is not entirely coincidental that this approach ends up focusing more of our time and attention on the concerns that are near and dear to the elite classes engaging in these conversations than on those most in need.

For another, I don't really care all that much what the salaries of professors at top law schools are. Those things make for good headline fodder or outraged blog comments, but while I'm sure a reduction in these salaries help drive salaries lower down, I think the market is sufficiently stratified that the competition would continue for some time among those schools that are really competing with each other, not with the top ten. Moreover, to the extent that the very top schools are closer to providing good job outcomes and relying less on false promises or unjustifiable student debt, the salary market there is closer to rational.

What would I really like the top law schools to do? They can skip the sackcloth and ashes, as far as I am concerned. What those schools really have is resources. On a recent trip to Harvard Law School, what really impressed me was not the building or smarts of the full-time faculty, but the sheer number of seemingly well-funded institutes, centers, directors, fellows, and other ancillary individuals and institutions operating out of the law school. Most law schools lack those resources, and the additional resources they invest are usually devoted to improving their own status. We need more, better, and more sensitive sources of information and measurement (and, yes, ranking), using better measures and proxies than the US News Report does. I would be delighted if a large elite school would invest some of its resources in creating and administering new and better measures and rankings, including such matters as employment outcomes,  student debt, tuition, and other such measures, and a stronger focus on regional markets. I would also be delighted if it put serious effort into collecting, collating, and reporting on reform efforts at individual schools.

These schools have the resources to do this kind of thing. They also have sufficient insulation from some of the effects of doing so: if Harvard ranked itself at number 5 rather than number 1, its success would not suddenly plummet, while lower-ranked schools that engage in these kinds of alternative rankings lack the resources to do a serious job of it and in any event end up coming up with measures that give them an absurdly high ranking, as in the famous Cooley ranking. As far as I'm concerned, what these schools have that the rest of us (including students) could really benefit from is the resources to do a better job of collecting information on and evaluating the legal education market. That's what they should focus on -- not more symbolically powerful but less productive matters. Keep the salaries; give us your centers. 

Henderson and Zahorsky on the "Law School Pedigree Problem"

For all the usual assumptions about magazines like the ABA Journal and the National Jurist being puff-piece journals (certainly the latter likes running ads about LL.M. programs and summer-abroad programs), both of them have published a number of good pieces in the last year or so on problems with law schools, legal education, and the legal economy. Here's another good piece: In this month's ABA Journal, Bill Henderson and Rachel Zahorsky have published a piece called "The Pedigree Problem: Are Law School Ties Choking the Profession?" The subject itself has been written about before and is hardly novel, but Henderson and Zahorsky do cite some interesting recent sources and do a nice job of collecting a number of observations and issues surrounding this topic. Here are some highlight points, as far as I am concerned:

• Evidence (anectodal, but certainly tracking my experience back in the day) of large employers, who are making expensive long-term hiring decisions, nevertheless ranking pedigree over actual quality and experience. 
• The point that large firms "hiring Ivy Leaguers without a passion for corporate law or BigLaw becomes an economic tax." Or, to put it differently, even if large employers were right that the middle of the class at School 1 is generally better than the top of the class at School 35, my experience has been that a student at the top of the class at School 35 will often, for a variety of reasons including sheer gratitude and appreciation for getting a highly paid job as opposed to taking such jobs for granted, will often show a higher degree of grit, determination, entrepreneurialism, and long-term commitment to the firm than a graduate who was in the middle of the class at School 1.
• The reproduction of that hierarchy on law school faculties and the question whether it will retard individual schools' capacity for innovation and adaptation. As law professor Tracey George observes in the piece: "The rub for some is that if we continue to hire professors who look exactly like existing ones, we aren’t introducing innovative practices and methodologies. . . . The question is whether law schools can innovate within that group or need to diversify faculty portfolios; and if they do, will that diversity translate to students in the classroom?"
• The overuse of GPA and LSAT scores as predictive measures in hiring, and the under-consideration of what individual schools actually do by way of training their students.

Let me add three points.

It makes sense to me to treat the legal profession as a market. But anyone who has experienced hiring patterns at large law firms (which, as we should all know by now, are only one part of the market) can only come away a little dispirited. I remember being at a large firm at which one or more hiring lawyers explicitly said they refused even to look at resumes from students below the top ten. This was some time ago during a relative market boom, and I don't know whether the same thing is true today, or whether the total number of people hired has gone down while the evaluative proxies have stayed the same. It's not that those proxies make no sense, mind you; it's that they don't, in my view, make enough sense to justify the lockstep behavior. Perhaps it's because I've actually taught at lower-ranked schools, whereas many of these hiring lawyers went straight from Elite School to Elite Firm, but in my view the top students at "lower-ranked" schools are often not only as good as the top students at top schools, but, just as important, are far hungrier. Pedigree-oriented hiring, at least if pursued in lockstep, is not so much about sound market decisions as it is about pure risk aversion--in a profession that increasingly requires, and historically has often been altered and/or improved by, entrepreneurial and imperfectly pedigreed types.  

Second, I think Henderson and Zahorsky are right to point out, quoting a dean of a lower-ranked school, that "There is a lot of innovation in legal education today . . . . Unfortunately, legal employers don’t reward law schools for the quality of their educational innovation." As long as both employers and schools themselves are focused on the US News measures and not more qualitative matters (including hiring outcomes, debt levels, etc.!), the incentive to engage in those sometimes costly innovations will be lessened. We should, on the one hand, rid ourselves of the assumption that law schools are all static and unchanging; there have been a lot of innovations on the ground at individual schools. But we should worry about whether schools have adequate incentives to engage in those innovations if they won't be measured.

Finally, I am fascinated by the homogenization problem that Henderson and Zahorsky discuss with respect to law schools. Brian Tamanaha also discusses this in his new book, and it is a focus of my forthcoming review of that book. One thing that this, as well as recent experience, suggests to me is that it may be both mistaken and harmful to think of the legal market, whether professional or academic, as a national market. Law schools, I think, would do much better service to their constituents to think of themselves as being part of a local or regional market, and asking what skill set ought to be imparted given the needs and demands of that particular market. As it is, and notwithstanding local innovations, the curriculum of many schools below the top ten or twenty still seems oriented toward training the top one percent of students at schools for the (increasingly unlikely) bigfirm jobs they might get, rather than orienting the curriculum to reflect the jobs most of them will actually be doing. Part of this, I suspect, has to do both with the fact that the elite law school graduates who teach at these schools all had that curriculum, and with the relative ignorance of law school faculties, who come from all over but were mostly funnelled through the same elite experience, about the local legal profession in their school's region. The keyword for law schools and, God willing, US News, should not be to think nationally or globally, but regionally and locally.     

Symposium: "Post's Republic and the First Amendment"

The new symposium issue of the Washington Law Review, "The Guardians of Knowledge in the Modern State: Post's Republic and the First Amendment," has been posted on that journal's web site. Its subject is Robert Post's recent book Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State, but it ranges quite widely. The participants include Ron Collins and David Skover, Judge Thomas Ambro, Bruce Johnson, and several permanent or occasional Prawfs contributors, including Steve Vladeck, Joseph Blocher, and me. My piece, which is also available on SSRN, is titled "The First Amendment's Epistemological Problem." It's a solid symposium and I was pleased and grateful to be a part of it.

Two notes about my piece. First, I think those interested in the recent Stolen Valor Act case will find it a worthwhile read. I'm normally neither especially prescient nor especially interested in either predicting what the Court will do or trailing along after it, but in this case the paper, which has a discussion of the Alvarez case, more or less coincidentally does a fair job of discussing the case and tracking some of what actually happened in the event.

Second, I must point readers to Post's own response to the symposium papers, titled "Understanding the First Amendment." It advances Post's general argument that doctrine alone is an inadequate place from within which to understand the First Amendment, that we must look to its purposes, and that in his view the First Amendment "expresses our constitutional commitment to achieving the 'social end' of democratic legitimation." Post is (fairly!) skeptical of my contribution, and of the institutional approach to the First Amendment that I outline at the end of the paper he writes that it is "so casual that it is difficult to follow."

Again, I think that is a fair concern. I hope that my forthcoming book, First Amendment Institutions, does a more complete job of setting out the institutional approach. Even so, I do think that approach leaves a number of questions about it in place, which I have tried either to answer or at least to acknowledge in the book. I hope the book and article contribute to the First Amendment conversation, but they certainly do not settle it, and I acknowledge Post's criticism. As a self-proclaimed constitutional tragedian, I was somewhat pleased by one of Post's descriptions of my paper's approach, which was not especially intended but apparently worked its way into the warp and woof of the paper: that it "advances a melancholy narrative of declension." How romantic! 

 

The Financial Impact of the Healthcare Decision...

...was, as I predicted in my post last night, immediate. Here's an email that appeared in my inbox not long ago:

Paula--

BREAKING NEWS: The Supreme Court just voted to uphold President Obama’s Health Care law.

Republicans threw everything they had at us, and they lost. With you standing with us, we can carry this momentum into November and win a Democratic majority to keep making progress.

Please donate $3 or whatever you can right now: [link to DCCC donation site deleted]

Thank you,

Steve

Rep. Steve Israel
DCCC Chairman

(As you can tell from the name, I am not actually a DCCC supporter. Not that there's anything wrong with that!)

Meanwhile, a Twitter feed from the RNCC today reads: "It's up to you now. Got $3 to make sure we defeat the Dems who passed #ObamaCare without even reading it?" And I assume that every private group that lined up on either side of the battle will be reaching out its hand today, using some variant on the "we narrowly avoided an apocalypse, but tomorrow might be different -- give now!"/"we narrowly suffered an apocalypse, but tomorrow might be different -- give now!" approach. All of them apparently asking for just three dollars. So we beat on. . . 

Meanwhile, here's some musical entertainment for you.

 

 

What Does the ACA Ruling Mean For You?

If you are a constitutional law scholar and were hoping for Akhil Amar's job after his nervous breakdown, sorry. Make other plans.

Riley on Indians and Guns

My friend and former colleague Angela Riley has an interesting-looking article with the title "Indians and Guns" in the current issue of the Georgetown Law Journal. Here's the abstract:

The Supreme Court’s recent Second Amendment opinions establish a bulwark of individual gun rights against the state. District of Columbia v. Heller confirmed that the Second Amendment guarantees an individual the right to bear arms for self-defense, and the Court applied this analysis to the states via incorporation theory two years later in McDonald v. City of Chicago. As a result of these cases, it is often assumed that individual gun rights now extend across the United States. But this conclusion fails to take account of a critical exception: Indian tribal nations remain the only governments within the United States that can restrict or fully prohibit the right to keep and bear arms, ignoring the Second Amendment altogether. Indian tribes were never formally brought within the U.S. Constitution; accordingly, the Second Amendment does not bind them. In 1968, Congress extended select, tailored provisions of the Bill of Rights to tribal governments through the Indian Civil Rights Act but included no Second Amendment corollary. As a result, there are over 67 million acres of Indian trust land in the United States, comprising conspicuous islands within which individuals’ gun rights are not constitutionally protected as against tribal governments. With Indian nations thus unconstrained—bearing in mind that gun rights and regulations are oftentimes set by tribal law—pressing questions regarding gun ownership and control arise for those living under tribal authority.

Looks like a good subject for a Jotwell piece, if anyone's interested!

This is also a nice place for me to sneak in a personal comment. Angela and I both taught at Southwestern Law School before moving on to greener (in her case) and hotter (in my case) pastures. Its dean, Bryant Garth, recently announced he was stepping down. I was hesitant to write a full post on this, because I very much appreciate the angry commentary that has recently been volleyed against "lower-tier" schools. (I will point out that, whether it still serves its ancient mission or not, Southwestern has been in the "opportunity school" business for a century now; it's not simply some profit-seeking johnny-come-lately.) Having taught there, I do worry about those issues and about the welfare of students graduating from such schools. But I also want to express my personal gratitude to Dean Garth for the many excellent things he did at Southwestern; from the narrow perspective of a faculty member, he was a terrific colleague and is still an intellectual inspiration. I wish him well and thank him for everything he did for me.  

Don't Forget Alvarez!

Although all eyes on the Court will be focused on First American Financial Corp. v. Edwards, it's worth remembering that a potentially important First Amendment case, United States v. Alvarez, will also be decided today. That's the Stolen Valor Act case, dealing with a federal statute that criminalized a knowingly false statement that one has won military honors. It was subsequently amended, I believe, to require the falsehood to involve obtaining something of value, but that was not part of the original statute. I've written some about this case in a larger context here.

The case is important because it revisits the classic statement in Gertz v. Robert Welch Inc. that "there is no constitutional value in false statements of fact." The strongest aspect of the government's case is that the statute, although it may still not have been narrow enough without a requirement of some material gain, focused narrowly on a specific knowing false statement of fact -- not an inadvertent statement and not a statement of opinion. Counsel for Alvarez was pressed hard in oral argument to answer what the First Amendment value is in what Chief Justice Roberts called "a lie, a pure lie."

On the other hand, the Court's recent decisions in Stevens and Brown suggest that the Court is leery of engaging in case-by-case balancing to determine whether a particular speech act is of low or no value. Instead, they have asked for proof that some category of speech -- crush videos, violent videogames, etc. -- is of low value not just as a logical matter, but as a matter of longstanding historical practice. So the outcome in this case will depend in part on how loyally the Court hews to those recent precedents. It will also, it seems to me, depend on the level of generality at which it treats the conduct criminalized by the Stolen Valor Act. If the act is treated narrowly, it is less likely to give rise to slippery slope concerns but also harder to identify as a speech act that has long been treated as falling into the category of low- or no-value speech. if it is treated more broadly as a "pure lie," it may be easier to argue that there is a long practice of regulating such lies. On the other hand, at oral argument the Solicitor General was pressed on the question whether, if the principle is read that broadly, it would not allow a host of other laws criminalizing false statements in other contexts. And the Court recognized that in most of the cases in which it had treated particular false statements as regulable, they were closely associated with longstanding and well-delineated harms.

In reading about this case, I have been interested in the number of scholars who share the idea that false statements of fact as such have no constitutional value. It represents, in part, a move away from Mill and toward other theories of the First Amendment. It suggests that the old idea that even falsehoods have value by serving as a whetstone for the truth is out of vogue. Those arguments have changed my outlook on this case somewhat. But I still hope that the statute is overturned. (See my article above for a full discussion.) My concern is both that there is, or may be, some constitutional value in false statements of fact,  and that even if there isn't, allowing the government (state or federal) to begin narrowly identifying "worthless" false statements of fact as subject to criminalization would open the gates too wide to government regulation of speech. But I appreciate, more than I initially did, the arguments against this position. We'll know soon enough which way the Court goes. I'm not sure whether I expect it to address squarely the statement in Gertz, or whether most of the decision will be about applying Stevens and Brown, but it will be interesting either way.

I gather that besides First American Financial and Alvarez, some other decisions will be handed down today. 

Healthcare Case Predictions

Predictions about how the result of the healthcare case are so Wednesday afternoon. Surely there are more interesting things to predict in this case than the mere outcome. Let me suggest a few:

1) Length. Will the total number of pages exceed the average campaign finance decision or Neal Stephenson novel? Or will the Court decide to speak directly to the people, Brown-style -- ie., a short paean to healthcare, some opaque statements, and a conclusion?

2) Number of opinions. I'm going to guess seven opinions. But I'm willing to go as high as twelve, assuming additional opinions by both retired Justices plus a late-breaking, agonized additional decision by the late Justice Whittaker.

3) Strained language. If lawyers were poets, they would be --

well, Archibald MacLeish, I suppose. If Justice Kennedy writes for the Court, what Kennedyesque phrases will appear? Perhaps: "At the center of healthcare is the mystery of life. And, occasionally, death. Also, bronchial infections." On the other hand, if the betting is right and Chief Justice Roberts took the majority opinion, I predict: "The way to achieve healthcare reform is to stop talking about healthcare reform."

4) "Respectfully's." Will the dissenting opinions employ the warm and collegial "I respectfully dissent," or will they unleash the fury of a thousand suns by writing "I dissent?"

I leave these matters open for respectful guesses. (Or, if you're outraged, just guesses.) I can venture some predictions more confidently:

5) If the mandate is struck down, Randy Barnett will immediately file suit to strike down other major legislation and overturn any remaining New Deal precedents. He will sternly point out that he is staking out a position in that case alone and that it is presumptuous to assume he has a broader agenda of any sort.

6) Again if it is struck down, the Yale Law School faculty will take up a collection to buy Akhil Amar a Care Bear and a nice "Sorry your life has been a fraud" card from Hallmark.

7) If you have an email address, you will receive a healthcare-decision-related fundraising solicitation from one or more political parties tomorrow, possibly including PRI and PAN. If you are like me, it will begin, "Dear Paula."

8) Tomorrow in Slate, Judge Posner will write a post suggesting that the Court's opinion is insufficiently pragmatic and lacks a healthy dollop of casual, armchair social science.

Other predictions on non-outcome-related matters are welcome. When the opinions come down, I will edit this post to reflect my completely correct prediction of the actual decision. In the meantime, I would like to thank the many brilliant friends who helped me write this post. And my mom.

Oh, you know what, I might as well venture my prediction. My view is that Roberts will join the liberal wing and that the mandate will be upheld -- although probably on tax grounds rather than the Commerce Clause. You heard it here first!

McElroy on "Report Card Day"

Lisa McElroy has a very nice post at Dorf on Law on her experience with one semester's class of law students and her "report card day," when she receives student evaluations. It's a good read, whether you're a student who would like some evidence that your professors care about teaching you (which is not necessarily the same thing as their caring about your "enjoying" the class), or a professor who needs some rededication to remaining mindful about the classroom experience. 'Nuff said. 

Two Cheers for the "Undertheorized" Critique in Legal Scholarship

I've written a few posts of my own in recent weeks expressing frustration with some of the typical bits of jargon and standard arguments used in law review articles; my own hobby-horse is the overuse, or questionable use, of "originality" claims. Dan's post below adds to that list the standard argument in law review articles that some area is "undertheorized." I'd like to add two observations. 

I have used the "undertheorized" line myself; I guess most of us have. I agree with Dan that 1) it is overused; 2) its use is itself often "undertheorized"; and 3) it raises fun questions about what constitutes adequate theorization. That said, I think it's not just jargon or a standard gambit to get an article published (which is what his commenters largely focus on). It's a standard critique because it's a common problem. Some of this has to do with the particular nature of legal scholarship, which toggles (sometimes in the same piece) between more abstract and more practical or doctrinal concerns. We can, in time-honored fashion, question whether abstract theoretical pieces are of any use to anyone. But the "useful" pieces, the ones that stick close to doctrine, are often problematic as solutions precisely because they make a raft of questionable theoretical assumptions. And, of course, undertheorization is endemic to judicial opinions. So if you're going to write about either judicial doctrine or doctrinal scholarship, questioning the adequacy of the theoretical assumptions in or basis for a line of law or proposed legal reform seems to be an excellent place to start. Doubtless there are times when "undertheorized" is the wrong word--when what you mean is "badly theorized," or where one's real problem with the work one is attacking is not the theory at all but the doctrine itself. But I think the undertheorization critique can make perfect sense, and in fact is often applicable to legal scholarship.

One additional observation. I have read a lot of well-placed articles recently by fellows, juniorish professors at non-top-ten schools, and so on--that is, people who would not inevitably expect to be published by top journals but succeeded in doing just that. I would say that many of these articles succeeded splendidly at playing the game: they were chock-full of claims of total originality (but with the inevitable "but see" footnote), the devastating nature of some existing doctrine or the utopian promise of their own fix, claims that everyone else is "undertheorized" or has "surprisingly neglected" something or other, and so on. I thought, once all this superstructure and gaming was stripped away, that some of these pieces were still fantastic and others were, shall we say, overplaced. If I were advising others (or myself!) without any concern for the broader values of scholarship, I would find it hard not to recommend that the author play all these cards. In the best articles, these kinds of things ultimately seem unnecessary; in the worst, they seem hackish, and one ends up thinking there is no there there once the superstructure is stripped away. But they seem to be, not a guarantee of good placement, but a requirement for consideration for good placement.

If I were advising editors at top (or other) law reviews, I would tell them they are still prone to being taken in too much by these sorts of things, and advise them to ask how good the article is once all the gamespersonship is stripped away. If I were advising authors, I would tell them 1) not to believe all of their own PR and 2) to consider, in the bowels of Christ, that what helps them succeed individually may not be good for the scholarly enterprise itself. But if I were offering purely cynical strategic advice, I would find it difficult not to tell them to go ahead and play the game, alas.   

Rosen on the "New Textualism"

Jeffrey Rosen has a new piece at TNR about what he calls "The New Textualism" -- originalism for political liberals, in other words. It argues that liberals have failed by making non-originalist arguments for their desired results to an originalist court, and that they would stand a better chance of success if they fought fire with fire and argued for liberal judicial results "grounded in constitutional text and history." As usual, Rosen makes his points journalistically (unsurprisingly) and well. This isn't the occasion for a decent discussion of whether I agree with this approach (short version: not especially), although I do think another label is needed: there are already plenty of people running around calling themselves New Textualists. But I do want to make a couple of observations about the piece.

The first is that something is almost completely missing from the piece: any discussion of the legitimacy or necessity of "New Textualism." Scholars like Akhil Amar, whose work is discussed in the piece, have or appear to have the conviction that their approach is a sound if not mandatory one for constitutional interpretation. Rosen's article, on the other hand, is strictly about political expediency. He writes: "On both the left and the right, then, originalism is no longer a theory of judicial restraint, . . . but a means of advancing partisan preferences. . . . Given this reality, liberals might do well to set aside internecine methodological squabbles and embrace the New Textualism in an effort to change the political as well as the legal debate. Its ability to persuade conservative judges at a time of extreme polarization on the Court is striking. And one only needs to look to the Tea Party—with its ability to mobilize thousands of Constitution-carrying citizens to march on the Mall—to see its popular appeal." I suppose I should applaud Rosen for his candor. But wouldn't a little discussion of what constitutional interpretation actually requires be nice?

That's especially true because it's tough to sell this approach politically unless it carries a patina of conviction with it. I think the relationship between desired outcomes and what people think is required as a matter of constitutional interpretation is complex. I don't think most conservative originalists consciously start with a set of desired outcomes and then pick the interpretive method that will get them there, or vice versa. Nor do I think it's a happy coincidence. It involves both and neither. Liberals who want to sell liberal originalism will first have to engage in the same act of auto-suggestion, and start believing in it so thoroughly that they forget it is a strategy at all, and object indignantly and--this is the hard part, but it appears to have worked for conservative originalists--sincerely to the very suggestion. They certainly should avoid calling it a political strategy in the pages of The New Republic! I don't expect self-awareness from Bench Memos, and if liberal originalists want to succeed in their project they'll have to avoid that sort of thing as well.

The other point I'd like to make is that there's a difference, kind of, between conservative originalism or textualism's judicial appeal and its popular appeal. As either a political or a judicial strategy, it works best if both horses are pulling together. But the popular version of conservative originalism owes much of its success to its air of heroics and its appeal to apparent ancestral values and myths. It's not just a question of technical mastery of the sources, and any technical brilliance it displays would be only half as successful if it didn't have a romantic appeal behind it. Perhaps this is just my perspective, but I think that's why sweeping and romantic work like Amar's is much more likely to have popular and judicial appeal than work like Jack Balkin's, which is very clever but which I doubt has the same ability to capture and capitalize on popular sentiment. (I would add similarly that I suspect Amar's work is more effective, whether or not it's more academically impressive, when he is up in the clouds rather than down in the weeds combing through the details.)

If liberals want to succeed in swaying judges (and I'm not judging that goal one way or the other here), they're probably better off trying to get liberal judges appointed than paying attention to methodology at all. But if they want to have a long-term judicial or popular effect through methodology, they had better pay as much or more attention to the music of "New Textualism" than to the lyrics.    

 

What Advice Do You Give Prospective or Admitted Students?

Law faculty often hear from prospective or admitted law students, and law school administrators often ask faculty members to play a part in meeting with admitted students. This has occasioned some recent talk. The post here seems to treat this as a revelation, and the comments seem to assume that faculty actually go along with the request. In my experience, it's not an unusual or revelatory practice. But there is a difference between getting the request and what, if anything, faculty members actually say or do.

So I thought I'd check in with readers. May I ask those of you who are professors:

1) Do you receive such requests, either directly from prospective or admitted students or through your administration? If so, do you talk to these students?

2) What do you tell them about whether they should go to law school at all? Do you try to dissuade them? Encourage them? Ask about their particular circumstances, including their financial condition?

3) What do you tell them about whether they should go to your law school in particular? Do you give a neutral account, play up your own school's strengths, emphasize its weaknesses, or none of the above? Do you ask them what other schools they've been admitted to and with what financial inducements? Do you ask them in what geographic region they want to end up practicing (if they know) and in what practice area (if they think they know)? Do you ever advise them, at least as between competing schools (see #2 above), to go to another school rather than yours?

For what it's worth, these days I tend to ask prospective students about their circumstances and wishes, offer blanket advice that they should not go to law school unless they strongly want to end up as practicing lawyers, and encourage them not to think of law school and legal practice as an easy or guaranteed route to financial security. I ask them what schools they've gotten into, with what scholarships if any, and what they want to do and (especially) where they want to live after law school. If I think another school is a clearly smarter choice for them, I'm happy to say so; I'd rather they be happy with their choice of school than bitter about it. I discuss the strengths of my own school to some extent, but I try not to overplay it. Doubtless I could do and say more; perhaps I ought to give them Jim Chen and Herwig Schlunk's recent articles. Any omissions on my part are not the result of some coverup or desire to deceive. But I'm curious what others do and say. 

 

"The First Amendment's Epistemological Problem"

I've posted a new paper, titled The First Amendment's Epistemological Problem, on SSRN. It's part of a forthcoming symposium in the Washington Law Review on Robert Post's excellent recent book, Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State. The article is largely descriptive, consolidating and examining a number of recent articles by leading First Amendment scholars, as well as Post's book, that each in their own way examine the relationship between the First Amendment and questions of truth, falsity, and the production of knowledge. It also uses that discussion as a launching-pad to discuss the relationship between the First Amendment, public discourse, and knowledge institutions, a subject I explore in greater detail in my forthcoming book, First Amendment Institutions. By way of self-examination and provocation of further discussion, the article concludes by asking why there has been a marked interest in institutionally oriented treatments of the First Amendment recently, in an age characterized by a fair degree of distrust of institutions in general.  

The abstract follows. I should add in all humility that Dean Post will have a reply article in the Symposium addressing the various contributions, and his article has some sharp criticisms of my piece.

This Article is part of a symposium on Robert Post's valuable new book, Democracy, Expertise, and Academic Freedom: A Jurisprudence for the Modern State (2012). It uses the occasion to observe that in recent years, a number of leading First Amendment scholars have focused on the role of truth, falsity, and the production of knowledge in the First Amendment and public discourse. The same questions are also raised by several recent cases, including the Stolen Valor Act case, United States v. Alvarez. Taken together, they suggest a strong recent interest in the epistemological questions raised by First Amendment law and theory. Both the conclusions these scholars have drawn, and the very fact that they have converged on these questions, are worthy of consolidation and examination.

I argue in this Article that the First Amendment presents an ineluctable "epistemological problem:" it raises difficult questions about the status of true and false speech, who should make such determinations and how, and the relationship between the First Amendment and the institutions that produce knowledge and play an infrastructural role in public discourse. First Amendment doctrine alternates between a broad protectiveness of false as well as true speech and a relative lack of protection or concern for truth or falsity as such. First Amendment theory has largely moved away from epistemic justifications for free speech and toward other justifications, such as those based on democratic self-government, autonomy, or distrust of government; but that movement leaves underlying epistemological questions unanswered. Constitutional doctrines such as those protecting academic freedom recognize the important role played by some institutions in public discourse and knowledge production, but they are both undertheorized and in some tension with broader principles of First Amendment law. 

The Article does three things. First, it collects and examines the recent treatments of scholars and judges who have examined the First Amendment's epistemological problem. Second, discusses the relationship between the First Amendment and the production of knowledge, especially by specialized institutions that play a prominent infrastructural role in public discourse, such as the university. It examines and praises Post's treatment of "democratic competence," "democratic legitimation," and knowledge institutions, but argues that we might avoid some tensions and enhance the production of knowledge within public discourse by taking a more direct institutionally oriented approach to these questions. Finally, it seeks to advance the discussion by asking why the First Amendment's epistemological problem has become a subject of recent and intense discussion, and why the institutional turn has become increasingly popular in an age of relative distrust of institutions in general. 

Get Me Rewrite

A "dummy headline" is the headline put up on a layout before the final headline. "Dummy" is also the name, in the Internet age, for anyone who puts up a dummy headline they might not want the world to see. See, for instance, the current (as of about 8 p.m. Central) headline on the New Republic's web site for what I assume is a Jeffrey Rosen piece they're about to post ("tk" means "to come"):

"tk rosen replies to his haters"

Another Party Heard From on Legal Education

Via links in some comments, here's an addendum to my discussion last week of practical- or client-centered legal education (which, as you recall from that post, didn't seem to get much love from the constituents on the Campos blog last week). It's a post by Dru Stevenson at the Circuit Splits blog, which I'm afraid I wasn't aware of, titled "Should Law Schools Focus on Lawyering Skills?" Stevenson argues the answer is no. A snippet or two:

I . . . disagree with the nationwide push toward making law schools into trade schools, the attempt to make the institutions less intellectual.  And I recently blogged here about the direction I would like to see schools go--echoing the vision recently outlined by the Dean of the law school at Boalt Hall (California-Berkeley).  Comparing law to another profession, would you prefer that your surgeon had spent more time taking courses on "counseling patients," and "medical clinic management," or more time studying cellular biology and organic chemistry? For my surgery, I would prefer the one who had a more intellectually rigorous program, not one that focused on role-playing exercises and rudimentary paperwork-completing skills.  I wonder if any other profession criticizes its theoretical wing like ours does. 

The most troubling aspect of turning the focus of law schools completely toward "skills" is that this is the seed of our institutions' destruction. When a consensus finally emerges that the whole point of law school is training kids in the mechanical tasks of lawyering - how to write a brief, how to give an opening argument, how to look up the law on something - people will then realize that law schools are not really necessary at all for teaching "skills" - these are better learned by "doing" and by repetition. A law school with a skills curriculum is a law school that is not worth the time or tuition, as the same skills would be better learned on the job in apprenticeships.  After we all switch to teaching mechanical skills, there will be a movement to abolish law schools completely.  The academic study of law will get absorbed back into the political science departments from whence it came, and lawyer training will be done the same way we train & license paralegals. . . .   

In terms of marketable skills, there is an inconsistency between what the firms say they want and what the firms do when they hire new graduates. The firms say they want "practice ready" associates and complain that the law schools are too theoretical; but when given the opportunity to hire graduates from the HALF of the law schools that are mostly practice-oriented and non-theoretical, they pass over them and hire associates from the top 100 law schools instead - year after year, decade after decade.  I know that some in the legal academy do not believe in rational markets or market discipline, so they would dismiss this as "all the firms are being stupid," or would say that the hiring partners at big firms are fooled by the prestige or brand names of elite schools.  It's really strange, though - that after decades in practice, the graduates from the "skills" schools do not seem to rise to the top of the profession enough to influence or change the hiring patterns.  One might expect at least some of the firms to realize that the "skills" schools are producing superior lawyers ("practice ready") and that some would switch to interviewing on their campuses instead of the elite schools.  It just doesn't happen - year after year, graduates find it easier to get jobs if their diploma is from a more elite (read: more theoretical) law school. The graduates from lower-ranked law schools are much more likely to find themselves unemployed and having to start their own solo practices. The hiring market has never backed up the claims that students are better off being taught lawyering skills instead of higher thinking about the law. Law firms overall prefer to hire students from schools that tilt toward legal theory. The shift toward skills is not a response to market pressure; it runs counter to the market. 

Prof. Stevenson makes clear that he comes from a practically oriented school, so I appreciate hearing his perspective. I must respectfully disagree with him, however--and I say that as one who does write on the "intellectual" side and doesn't think there's anything wrong with that for individual professors. (Although being a theory type doesn't absolve one of one's fiduciary duty to ask what is best for legal education on the whole, and particularly what is best for one's own school and students.) There is no doubt that other professional wings of education do face the same tensions and criticisms. Boalt's model is interesting, but we should no more treasure the idea of making every school more like Boalt than we should the idea of making every school more like Yale, or indeed more like any specific school.

The second paragraph excerpted above--the one that worries that "turning the focus of law schools completely toward 'skills' is . . . the seed of our institutions' destruction"-- is interesting. But I don't see why we should think of this as a bad thing in and of itself. I might (or might not) feel differently about it if every school took this path, but if it happened in a number of places I'm not sure that Stevenson has shown why that would be so terrible. 

Finally, I agree with Stevenson that there appears to be "an inconsistency between what the firms say they want and what the firms do when they hire new graduates." But: 1) his paragraph seems heavily weighted in terms of the behavior of Biglaw firms; 2) I do believe there is a "firms are being stupid" element to this--or, put differently, I think the big firms' credentialism is (or was) partly client-driven but is also a function of foolish reproductive tendencies at those firms and hurts their business in the long run; and 3) in any event, as I argued earlier, and especially given the reality that most students don't end up at these firms regardless, it still makes sense to me to ask, not what firms want, but what clients need. 

In any event, I was happy to hear a different point of view. Read it for yourself. A couple of good comments there as well. And no, I do not think discussing this issue obscures the "it's the jobs/money" arguments, which remain important.