Thursday, October 03, 2013

Casey on Law School

Via Brian Leiter, here is a speech by Chicago Law's Anthony Casey addressing incoming law students. I agree with Brian that it's an excellent and thought-provoking speech, and rather than excerpt it I will simply encourage you to read the whole thing. It did leave me with a few questions and observations:

1) Casey writes: "People quite ignorant of what a good lawyer does will tell you that law school should be shorter, that law school should teach students how to pass the bar, that law students learn too much theory." Although I agree with his disagreement, I don't think his talk tells us how long law school should be, whether the combination of undergraduate education and law school could or should be restructured, and other details.

2) Law professors reading this as a general defense of the status quo would be mistaken. Even if Casey is right about the intellectual features that he thinks should be a part of legal education, that doesn't mean we always (or generally) succeed in providing them, or doing them well. If you agree with Casey's general vision of legal education, you ought to view it as a demanding standard and ask how well you are (I am) meeting it, rather than just standing pat on it.

3) I wonder how and whether Casey's vision comports with something Mark Tushnet writes in his (most) recent book, In the Balance: Law and Politics on the Roberts Court. I don't have the full quote here (it's on page 98), but Tushnet writes from experience, and not in a critical way, that "lawyers learn different--other--things in less elite schools." That is consistent with my experience at a variety of law schools as well. It often makes sense, although there is emphatically room to think that lawyers at elite law schools ought to learn more immediately practical things, and that lawyers at "less elite schools" sometimes ought to get more of the kind of instruction Casey is talking about. (I'm sure both happen sometimes.) I don't have a straight answer here, and I think the kinds of things Casey is talking about are a valuable component of a professional (or maybe a liberal) education, but one must note that his experience is more narrow than the experience of some teachers, and think about how to adapt the kinds of things he is talking about to different contexts.

One doesn't have to accept every line of Casey's talk to find it interesting and thought-provoking, however, and it is beautifully written to boot.    

Posted by Paul Horwitz on October 3, 2013 at 09:12 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack

"Enduring Hierarchies in American Legal Education"

My colleague Andrew Morriss, along with Olufunmilayo Arewa and William Henderson, has posted on SSRN an article titled Enduring Hierarchies in American Legal Education, forthcoming in the Indiana Law Journal. It sounds interesting! Here's the abstract:

Although much attention has been paid to U.S. News & World Report’s rankings of U.S. law schools, the hierarchy it describes is a long-standing one rather than a recent innovation. In this Article, we show the presence of a consistent hierarchy of U.S. law schools from the 1930s to the present, provide a categorization of law schools for use in research on trends in legal education, and examine the impact of U.S. News’s introduction of a national, ordinal ranking on this established hierarchy. The Article examines the impact of such hierarchies for a range of decision-making in law school contexts, including the role of hierarchies in promotion, tenure, publication, and admissions, for employers in hiring, and for prospective law students in choosing a law school. This Article concludes with suggestions for ways the legal academy can move beyond existing hierarchies and at the same time address issues of pressing concern in the legal education sector. Finally, the Article provides a categorization of law schools across time that can serve as a basis for future empirical work on trends in legal education and scholarship. 

Posted by Paul Horwitz on October 3, 2013 at 08:53 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Why We Can't Have Nice Things, Part 743

For those who are interested in law and religion issues, or national security, or education, or languages, or insanity, here is a story about Alabama parents objecting to an Arabic language class being taught in their local high school. 

Why are they objecting? Because, as one parent said, “This is America, and English is our language, and while I understand the alleged premise of offering Arabic at our high school, I don’t agree with it. . . . “It is not just another language; it is a language of a religion of hate. I’m concerned about our taxpayer dollars going to fund such a program, because I don’t believe it has a lot of foundational value. . . . It just concerns me that we’re headed down a path of further eroding our society to a Muslim-based society, or Sharia law (the moral code of Islam), and I’m not willing to let that happen without … something to say about it.”

As another parent helpfully added, "They’re trying to indoctrinate our children with this culture that has failed. . . . .Why should we want to teach our kids a failed culture when we have a culture that has been successful? All we have to do is follow our Christian culture, which has brought this nation to the pinnacle of success. … I don’t see why they would want to teach this.”


Posted by Paul Horwitz on October 3, 2013 at 08:50 AM in Paul Horwitz | Permalink | Comments (1) | TrackBack

Thursday, August 29, 2013

"Theory and Praxis," God Help Me

I have been a little busy with local politics and university activities lately, for my sins. I won't give a rundown on events, but a quick Googling of "Tuscaloosa," "election," and such quaint terms as "wristbands," "beer," "limos," and "Machine" will give you an idea. I've offered my direct thoughts on these matters elsewhere, but, hell, I am an academic, and I wanted to take a moment out for an academic reflection.

I remain pretty attached to the classic view of academics as people who do academic things in academic ways for academic reasons. Although I think there is more room for different approaches within the broader universe of higher educational institutions than he does, I generally sympathize with Stanley Fish's injunction to save the world on your own time. In both good and bad ways, I'm more a "theory" guy than a "praxis" guy.

But in the past day or so, I've been moved to reflect that there is actually a through-line between what I write about as an academic and what I've been involved with lately on a local level. It's not one I thought about as I acted, but it's there. I write a lot about institutions and institutionalism and their relationship to the First Amendment. I argue that a number of institutions, including universities, play a vital infrastructural role in our social structure and in public discourse. I believe their autonomy is important and that, in a sense, they should be viewed as partners in the First Amendment and not just subjects, and given substantial deference by courts. But I have always argued that there is a tradeoff or obligation here. Those who champion institutional autonomy must also take personal responsibility for the proper stewardship of those institutions: participating in governance if they are inside them and monitoring these institutions if they are not, encouraging those institutions to do the right thing as institutions, and criticizing them when they do not. "Faculty governance," "academic freedom," "church autonomy," and other such phrases are not just slogans to wave against outside interference; they are first and foremost burdens and responsibilities for the members of those institutions, and for the public at large. My piece "Act III of the Ministerial Exception" talks a great deal about this; so does a forthcoming piece I've written on the Fisher affirmative action case. And so, especially, does my book "First Amendment Institutions."

Again, I didn't really think about this as a precursor to my public involvement in the past couple of days; I just got involved because I felt I had to. But I *am* an academic, and so it was interesting to me (if no one else) to reflect on the relationship between what I write as an academic and what I have been doing "on my own time" in recent days, and to share those reflections. If a couple of books get sold too, I'm okay with that. Best wishes to all.

Posted by Paul Horwitz on August 29, 2013 at 11:35 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Monday, August 26, 2013

One More Thing on Ginsburg and Retirement

I'm grateful for the discussion on my post about Justice Ginsburg's interview with the Times--especially the criticisms. I had one more, related observation I wanted to make, which is less about the interview and more about the "retirement" issue. I should acknowledge up front that it involves some generalizations and premises with which people might disagree. Obviously I think I have a valid point to make, but it is at least a little speculative and not perfectly worked out. If I'm out on a limb here, I don't think I'm alone on that limb: Sandy Levinson has made some similar observations. But that doesn't mean either of us are right, of course.

As I have read the discussions about Ginsburg and retirement, I have seen two conflicting themes. 1) Ginsburg's retirement--or anyone's retirement, including Justice Breyer, although she is older and has been through various health scares, and it seems unlikely that such an invitation would be productive if addressed to the Court's conservatives--ought to retire now, while the Democrats might successfully secure her replacement, because if she retires later her place might be filled by a conservative, risking further damage to what liberals view as the proper direction for the Court. 2) This suggestion is impertinent at best, sexist or outrageous or both at best. Of course Justice Ginsburg shoudl retire when she thinks she should retire and not be pressured to step down early. This view is usually accompanied by various encomia to Justice Ginsburg, her role on the Court, her important work on behalf of equality rights for women, etc.

There are also, in my view, two sub-themes running through this discussion. The first is a liberal concern with (liberal conceptions of) justice, rights, the importance of the Supreme Court to these and other fundamental issues, the direction of the Court and the country, and so on. Of course this is the motivation for theme 1) above, but certainly these values are shared by most of the people voicing theme 2), and are often voiced in passionate terms.

The second is the tendency toward hero worship in prominent sectors of the American legal world, most definitely including both the "political"--here in the sense of legal liberals vs. legal conservatives--and the legal academic worlds. (Of course there's a lot of overlap here, but there are plenty of non-academic legal partisans.) This isn't surprising in an environment that is both sentimentally attached to history and largely run on connections, credentialism, and a love of prestige. But it's still striking in a profession that also makes noises about the importance of critical, dispassionate analysis. I don't know whether it's more true here than elsewhere, but elite (or at least well-credentialed) American lawyers are a hero-worshipping bunch if I've ever seen one. Perhaps it starts before law school, but it is certainly encouraged by the arrested adolescence that characterizes the law school experience. It is further maintained and encouraged by the arrested adolescence that similarly characterizes the clerkship experience. It extends to Janet Reno dance parties, black-tie FedSoc dinners with Justice Scalia, and so on. It never seems to die.   

Whether on the surface or just beneath it, a lot of the angry defenses of Justice Ginsburg's entitlement to sit as long as she chooses seem to involve a heavy dose of hero worship. I'm sure she's earned it! (More because of what she did as a practicing lawyer than what she has done on the Court, in my view, but opinions may differ.) But it should be recognized for what it is. 

I just don't think that motivation sits well with the other sub-theme, the theme that emphasizes the crucial importance of liberal legal views and their protection or advancement by the Court. If you don't think that the Court is that important, or don't care that much about rights or legal liberalism, or just think of the Court and its work as an "intellectual feast," or just really value hero worship, then the view that Ginsburg should feel free to retire when she feels like it makes sense. On the other hand, if you're really serious in thinking that the cause of legal liberalism matters a lot, and that the fate of the Court matters a lot, then you should care a lot more about that than you care about the entitlements of your heroes. You should care about the cause, not the privileges of its leaders. And if justice, rights, and that kind of stuff is your motivation, then it seems to me that you should be on board with the view that these things would be advanced by the immediate retirement of Justice Ginsburg (and/or Breyer).

Of course people may have multiple interests and motivations, although that doesn't seem like a full response, since you're still going to have to balance them at some point or conclude that one concern is more important than the other. For myself, absent a change in the nature of federal judicial tenure, I'm fine with Justice Ginsburg serving as long as she wants and is able, and thought the "pressure" for her to retire was a little silly as well as futile. But I am not as passionately motivated by legal liberalism and its causes, or as inclined to think of the Supreme Court as a palladium of liberty, as some of Justice Ginsburg's most vocal defenders are.

Perhaps it's worth their considering whether they are not, in fact, more motivated by hero worship, and a concern for the prerogatives of the hero, than by a strong concern for legal liberalism.  


Posted by Paul Horwitz on August 26, 2013 at 12:11 PM in Paul Horwitz | Permalink | Comments (7) | TrackBack

Sunday, August 25, 2013

Two Cheers for the President's "Two-Year" Proposal

I seem to be more favorably inclined toward President Obama's proposal to make law schools two years than Matt, who posts below. I think he raises some sensible concerns and that there is nothing wrong with doing so. I agree with his urging us to consider questions of pedagogy, although 1) law schools, which still insist in the main on hundred-percent end-of-semester finals, are a little spotty on serious consideration of pedagogy, and 2) when Matt writes that "choices about the required program of legal education should be based on pedagogy," I'm less certain that this should be the only consideration. I can appreciate the logic of his speculative statement that "with increasing legal complexity, most of us would likely need more education, rather than less, to be properly prepared," although 1) it's not self-evident to me that this education necessarily needs to take place within the law school, and 2) as Matt acknowledges, we must still ask whether the costs of this additional education outweigh its benefits. In short, I think he raises some valuable cautions, but they are just cautions; and I tend to have a more positive view toward two-year legal education than Matt appears to have.

Why only two cheers, then? I withhold one cheer because of the seemingly uniform nature of the President's proposal. ("Typical command-and-control Democrat!") I tend to think that there are a variety of different models that law schools could pursue if they went to a two-year program. And I tend to think that there is equal room for a variety of other approaches, including traditional or modified three-year programs, programs that perhaps involve very little classroom time at all, and even doctoral or doctoral-type programs that involve longer stays. Assuming that proper information is publicly provided about these programs, their price, their purposes, their employment outcomes, their different costs and benefits--and that is a huge and probably currently unwarranted assumption--then I think there is room for diversity, differentiation, specialization, and competition here. (I agree, of course, that questions of cost and the sources of financing are also highly relevant.) I think the arguments for a uniform three-year program are weak and am more sympathetic to a two-year program than Matt currently seems to be. But I think the best answer to the problems the President raised is unlikely to be a single answer or another uniform proposal.    

Posted by Paul Horwitz on August 25, 2013 at 11:51 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Unnecessary and Inappropriate

That, in brief, is my take on this interview Justice Ruth Bader Ginsburg gave to the New York Times for today's paper. In it, she made clear that she was unmoved by pressure from some liberals for her to step down while a Democratic president can appoint her successor; said, according to the Times's paraphrase, that "her retirement calculations would center on her health and not on who would appoint her successor, even if that new justice could tilt the balance of the court and overturn some of the landmark women’s rights decisions that are a large part of her legacy," although she suggested that she did not think this was likely to happen; and criticized the activism of the current majority and several specific decisions.

The interview was unnecessary. To whom was she speaking? Her colleagues on the Court already know what she thinks, and she has ample alternative means of sharing her views with them. I doubt that conservatives off the Court will be moved much by her interview one way or the other. That leaves two liberal constituencies aside from the general public: the administration, which already knows she won't shove off; and establishment legal liberals of the ACS type, whom she can easily address more directly in person. That leaves, in my view, little serious point to this interview. If she had had something novel to say, I would be more charitable about her doing the interview, but she doesn't. Given my view that the interview was unnecessary, given the obviously political overtones of her charges, and given my general view that judges should not absent extraordinary circumstances or special needs make public political statements, I conclude that the interview was inappropriate.

One friend whose views I respect praised the speech as an instance of "speaking truth to power." I confess I almost always resist the use of this phrase, which I think is mostly both overused and misused. Much of the time, what people hold out as examples of "speaking truth to power" involve people who are themselves powerful; don't involve instances of the speaker actually directly addressing a powerful person with whom they disagree, but rather involve addressing an audience (often a powerful one) that already agrees with them, and to whom they are careful to say nothing disagreeable; and in any event don't involve speaking novel and disturbing truths, but well-worn and banal statements. All those things are true here. Whatever else one could call the interview, I don't think "speaking truth to power," especially with its (unduly, mostly false) romantic overtones, captures it.

For the most part I leave aside the question whether she should retire, and why she rather than someone else should be the target of efforts to get her to retire. I tend to think justices shouldn't serve forever but are free as a matter of present fact to serve as long as they wish, regardless of what it does to the long-term health of their jurisprudence. At the same time, however, I don't think "I really admire X" or "X has done so much for us" is a sufficient basis for the conclusion that "as far as I'm concerned, X can serve as long as he or she wants." If you think law and the Supreme Court matter, and you share Ginsburg's political views concerning the Court, you should probably conclude that the cause of justice would be best served by her retiring soon. On this view, Ginsburg's adamance is more selfish than justice-seeking. And, indeed, there is no doubt that a certain (no doubt well-earned) sense of high self-regard infuses the interview. But one needn't take this view of the Court or its importance, or the importance of a liberal version of politics or justice.

The bottom line, for me, is that the interview was unnecessary, and when you combine the fact that it was unnecessary with the political nature of her advocacy in the interview, it was perforce inappropriate. I don't doubt that some will applaud the interview because they like her, or like what she said, or both. Neither those reasons, nor the general goal of pleasing or rallying the base, are sufficient reasons to justify it. Justice Ginsburg insists in the interview that she is still fully capable of making decisions. I have no reason to doubt it. But her decision to do this interview was itself unwise and more than a little self-indulgent.     


Posted by Paul Horwitz on August 25, 2013 at 10:29 AM in Paul Horwitz | Permalink | Comments (22) | TrackBack

Monday, August 19, 2013

Three More Takes on Novelty Claims in Legal Scholarship

I've written here before about the tendency of law review articles, and especially their abstracts, to make what I tend to think are highly exaggerated claims of novelty. Of course, novel issues or problems are bound to arise from time to time in the law in response to events, and they're worthy of attention. The first time someone is assassinated by drone, or the first time an important new piece of legislation comes along, it makes complete sense that it ought to be written about. That is one sort of novelty. It must be said that the first articles to take on these issues generally apply existing legal tools and modes of thought; the topic may be new, but the thinking isn't. (It also often turns out that even the new topic often turns out not to be as new as everyone thought, so that it's the job of a second generation of articles to come along and argue that the first generation of articles ignored earlier events. And so on.) Occasionally, to be sure, articles will come along that contain genuinely new ideas. These are very few and far between.

None of this seems to stop a wave of articles from coming out every year whose abstracts trumpet, almost always inaccurately, "This is the first article to...." As you can probably tell, it kind of irks me--mostly because any such exaggeration in scholarly work irks me, but also because some of these articles seem to trade on their alleged novelty for what counts in the business as high placement.

(Incidentally, I am unreliably informed that some authors, having achieved a decent placement through an overclaiming abstract, will then prune back the novelty claims before publication. Or I am told that this would be a sound strategy on the part of authors, whether the informant does it or not. For the most part, as far as I can tell, the overclaims of originality in SSRN abstracts seem to make it into the published articles, so it doesn't look like many people actually do this. If they do, I would consider it a violation of what I quaintly think of as scholarly integrity.)

In my ongoing effort to make sense of this in something other than a purely strategic and cynical sense, here are three quick observations about the phenomenon. (Assuming, of course, that you agree it exists.)

1) It struck me in thinking about it today that there is a kind of unspoken agreement at work in this little game concerning Critical Legal Theory. One theme of Critical Legal Theory is that legal argument commonly consists of a set of conventional polar positions or mutually opposed moves. Those moves are present, if sometimes submerged, in just about every set of arguments on just about every kind of issue. Some romantics may hold out hope that this process will result in genuine dialectical advances from time to time; others may think the response should be to reject the standard moves altogether. Many just think that these moves will continue recurring indefinitely. This is a for-blog-purposes-only caricature of this theme, of course. But that seems somewhat appropriate, because it's more or less at exactly this banal level that the theme is generally accepted, to the extent that some ideas in CLS have become normalized in the legal academy.

What struck me is that, while I think something like this idea of the existence of continually recurring standard legal moves is fairly widely accepted by self-aware legal academics, there seems to me to be a corollary rule: Though Shalt Ignore Critical Legal Theory For Purposes of Law Review Abstracts. In the abstract, it is never the done thing to say something like, "I will be making standard move X in this article," or "In an important recent article, so-and-so used theory to examine new issue Y. As expected, I will now use policy." To say something like that is self-destructive at worst and gauche at best. Instead, thou shalt pretend that no one else has ever done before whatever it is that you're doing--while quietly acknowledging your predecessors, and thus demonstrating your scholarly credentials while reassuring the reader that the idea is not so original that it lacks credibility and a pedigree, somewhere around footnote 10.

I find this striking for two reasons. First, as I wrote, I think the basic cycling-of-standard-legal-moves idea is pretty widely accepted--everywhere, that is, but in law review abstracts. Second, many of the articles that I see making extreme and erroneous claims of novelty, and sometimes placing very well as a result, are all too happy to make extensive use of CLS and other forms of critical theory in the body of their papers.

2) In doing a little reading around this, I again came across two articles that I think are required reading. I suspect the first has gotten too little attention, partly because its interesting conclusions are put quite gently, and partly because of the publishing cycle of the journal in which it appears. The first is Mark Tushnet's recent article in the fiftieth anniversary volume of the Supreme Court Review, in which he re-reads two articles from the first volume. He observes that "[t]he articles show that the questions that scholars today regard as deep were already reasonably well understood fifty years ago." The only thing that's missing from the same discussions of the same issues today, he laments, is a "scholarly temperament of engaged detachment."

The second is Richard Posner's recent reply piece in the Georgetown Law Journal on the state of legal scholarship today. (The discussion is around pages 848-50.) Posner is agreeing here with a point made by Pierre Schlag about this arguably being an age of "normal science" in legal scholarship, an age between revolutionary moments. He writes that in such an age, in which teachers are always needed but scholars perforce must also do scholarship in order to get ahead, the "academic enterprise" becomes "afflicted with perversities." There is "pressure on faculty to publish even when the scholarship that is published has no value; hence the straining after novelty, the drive for specialization, the quest for rigor, the adoption of a technical vocabulary—all methods of signaling quality that may, however, have no effect except to turn off students and other readers." That seems half-right to me. The other half, though, is that it's just these kinds of qualities in legal scholarship, including the "straining after novelty," which will attract some "students and other readers." Those readers include some articles editors at highly ranked law reviews, who understandably would like to think that they are important and live in interesting times.

I wonder if we couldn't just print out and distribute to all current law review editors a simple sign to be placed above the slush pile. It would read: "WARNING: We are currently in an age of normal science. Unless it is actually examining a new set of facts, the article you are about to read is almost certainly not novel. Note: The facts probably aren't all that new either."

3) Tushnet's article, in particular, makes me reflect once again on the fairly stunning lack of a sense of disciplinary institutional memory in the legal academy. In part, I blame Westlaw and Lexis, whose archives barely extend back to the Reagan presidency. In large measure, I think it has to do with the lack of a deep canon in legal scholarship, or of much of an education in that canon by most law professors. Whatever the reason, I wish more law professors--and articles editors--would spend less time polishing absracts and more time reading Ecclesiastes.  



Posted by Paul Horwitz on August 19, 2013 at 11:51 AM in Paul Horwitz | Permalink | Comments (16) | TrackBack

Friday, August 16, 2013

Chris Lund on Legislative Prayer

My friend Christopher Lund has a fine piece on Slate (how rare it is that I get to string those words together!) on legislative prayer, and specifically on the upcoming Supreme Court case of Town of Greece v. Galloway. I suppose it contributes to my enjoyment that I am in substantial agreement with Chris that Marsh v. Chambers was always a problematic case, that it is easy to do legislative prayer "wrong,"* and that the questions and difficulties involved in doing it "right" may themselves raise insuperable problems. As I write in The Agnostic Age, although I think Marsh is wrong as a matter of sound constitutional law, I would be willing to let sleeping dogs lie. My concern with Galloway--and the Second Circuit opinion in the case was not a perfect decision, to be sure--is that a poor vehicle has been chosen that will end up with a majority doing more mischief than Marsh alone accomplished. Views differ on this. Regardless, however, Chris has done more and better work on this subject than anyone I know, and the Slate piece is very good.

* For an example of its being done "wrong," see this story, which involves my own state of Alabama and Twinkle Cavanaugh, the head of the state's Public Service Commission and a living reminder that all that twinkles is not gold. 

Posted by Paul Horwitz on August 16, 2013 at 10:42 AM in Paul Horwitz | Permalink | Comments (4) | TrackBack

Fascinating Canadian Story on "Academic Freedom"

The Chronicle of Higher Education has a fascinating story (subscription required) on Dennis Rancourt, a quondam physics professor at the University of Ottawa who has, for some time, been disputing his dismissal from the university before an arbitrator. Rancourt argues that he was dismissed for his political views. The university suggests that he was dismissed for numerous departures from his proper academic duties--among them, hollowing out an offered course from the inside, transforming it from a course in physics to a course on how science relates to "power structures," a move he called "academic squatting"; inviting ten-year-old twins to sign up for a course, and then assisting them in grieving the university's refusal to register them before a human rights commission as age discrimination; promising all his students in one class an A before the class started, more or less as a protest against the usual pedagogical norms of grading; and so on. While he was at it, he called a black law professor who wrote a report for the university its "House Negro." As it often does around Rancourt, protracted litigation ensued. His Wikipedia page is here; although it is one of the more self-serving entries I have seen there, it does contain useful links. Stanley Fish wrote about Rancourt here, and has an amusing discussion of him in a forthcoming book on academic freedom.

I was inclined to think Fish made too much of the Rancourt case, since Rancourt is so clearly an extreme case. On the other hand, I never would have dreamed that it would take as long as it has to resolve his dispute with the university, or that as many silly rulings would result along the way. Rancourt's case seems to me to do two things. It shows just how badly academic freedom can be distorted and misdefined, especially when its meaning is extended and politicized beyond all recognition. And it shows how damaging the involvement of both labor law and human rights commissions has been in Canada for a proper understanding and treatment of academic freedom. A couple of the figures quoted in the Chronicle story suggest that labor and human rights law have strengthened "academic freedom" in Canada. They have done nothing of the kind, unless you have an absurd definition of the term. 

Posted by Paul Horwitz on August 16, 2013 at 10:13 AM in Paul Horwitz | Permalink | Comments (5) | TrackBack

Wednesday, August 07, 2013

Tushnet on Denning & Kent, Legal Scholarship, and the Next Great Law Professor Mystery Novel

On another scholarship-related note, Mark Tushnet has a lovely post up praising a recently published piece by Brannon Denning and Michael Kent on anti-evasion doctrines in constitutional law. I always enjoy Tushnet's occasional pieces on legal scholarship, both for the generosity with which he praises others and for his willingness to talk about the stupider sausage-factory aspects of the publication process. 

Incidentally, Tushnet ends his post by making several "disclosures." One is that he rarely publishes over the transom anymore, and he confesses that the last couple of times he did, his submissions were "unsuccessful." I admire him for saying so! His last disclosure goes like this: "(4) I think I'm not going to make the fourth disclosure." As a teaser ad might say: What is the fourth disclosure? I haven't the slightest clue, but if I were the kind to work on mystery novels involving law professors, I would certainly rush to start a draft of a novel titled The Fourth Disclosure.

Posted by Paul Horwitz on August 7, 2013 at 09:53 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack


In the LA Review of Books, Dominic Pettman has this review of Michael Marder's recent book Plant-Thinking: A Philosophy of Vegetal Life. In the book, to quote the review, Marder "not only attempts to conceive of and communicate what we might call the ill-understood and under-appreciated plantness of plants, but also to hold the plant up as an aspirational role model, one which operates in stark contrast to our own self-centered activities." It's a little difficult to tell just how firmly Pettman's tongue is located in his cheek in this review--or perhaps it's stamen-in-pistil--in this one. Judge for yourselves. (Kudos to Pettman for quoting from Withnail and I, by the way--specifically, Monty's line that flowers are "mere prostitutes for the bees.")

Incidentally, for some reason the review motivated me to do a search for the number of law review articles found on Westlaw that use the word "alterity." The answer is 366. (Most of them, however, seem to come from interdisciplinary journals and European reviews, not main or secondary American law reviews.) Is it terribly wrong of me to think that that's about 300 too many? 

Posted by Paul Horwitz on August 7, 2013 at 09:46 AM in Paul Horwitz | Permalink | Comments (2) | TrackBack

Saturday, August 03, 2013

The State of "Lively Discussion"

An interesting pair of comments on Outside the Law School Scam, in response to a post about the ABA Task Force's release of its working paper on the future of legal education. Because the language is a little lively, I've put both comments after the jump. 

1) Comment from Anonymous:


You ignored this shitstorm for years. You personally ruined my life by letting your biglaw buddies and your professor buddies and your judge buddies perpetuate this scam, taking $100,000 of my student loan money and ripping me off with your useless degree and fucking me by not holding up your part of the 95.6% employment promises.


Fuck you, ABA. I don't give a shit about your paper. I don't give a shit about your solutions, all of which are self-serving and five years too late.

You see the writing on the wall. You see the law school system crumbling and your profession turning to shit.


You made this fucking filthy bed. You pissed and shit all over it. You made me lie in it. And if it's the last thing I do, I'll make sure you fucking sleep in it too.

Don't you dare reflect back the same solutions we proposed five years ago. That time has come and gone.

Right now, the only solution is seeing law schools collapse and seeing the profession drown in its own sewage. I'm not throwing you fuckers a life vest. I'm going to put my foot on your head and push you down.

You cunts.

Go fuck yourselves, lawyers and professors and judges. Fuck you.

2) Reply from Anonymous:

This is one of my favorite scamblog posts. Thanks stranger. I am with you. I will revel in these fucks going down in flames. And thanks to you all for hostIng this site. It gives everyone a sounding board where Campos led off. Someone give me a cheer for Campos, even though he was forced out. 


Posted by Paul Horwitz on August 3, 2013 at 07:13 PM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Tuesday, July 30, 2013

New Podcast on First Amendment Institutions

I'm very grateful to the folks at the Liberty Fund for recording a podcast with me on my recent book First Amendment Institutions. (Ten percent off at Amazon! Makes a Bennington Battle Day gift!) The talk was very interesting (for me, at least) and it was a pleasure to get a very different perspective--a sympathetic but still critical one--on the book. It is available here. Download it for your next jog or car trip. Enjoy!

Posted by Paul Horwitz on July 30, 2013 at 12:22 PM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Saturday, July 27, 2013

A New Hypo for the "Is Religion Special" Debaters

More than a hypo, actually. In a well-known academic freedom case, Axson-Flynn v. Johnson, an acting student at the University of Utah refused on religious grounds to say the word "fuck" or take the Lord's name in vain during an acting exercise and was criticized by her instructors. She ultimately brought suit. The Tenth Circuit held that Axson-Flynn had raised potential free speech and free exercise claims. After remand to the district court, the case was settled, with the parties announcing "the planned implementation of a policy that will allow students an opportunity to request exemptions from specific curricular exercises they feel go against their 'sincerely held religious beliefs.'"

Now the Chronicle of Higher Education has run a story (subscription may be required) about a music student at Northwestern who refused to sing a verse by Walt Whitman, on the grounds that Whitman made several racist statements toward the end of his life:

As a result, Timothy L. McNair, a 25-year-old aspiring opera singer, failed the course. His stand, taken at the end of the spring quarter, has put at risk his ability to finish his master's degree at Northwestern's Bienen School of Music. 

The university has backed the professor who failed Mr. McNair and says that it expects students to complete the work assigned to them. 

Here we have a nice new example for those who have argued that religion is not special--that there is no compelling reason to treat strongly held non-religious beliefs, when it comes to granting or refusing to grant exemptions, differently from strongly held religious beliefs. Enjoy. 

Posted by Paul Horwitz on July 27, 2013 at 08:52 AM in Paul Horwitz | Permalink | Comments (8) | TrackBack

Sunday, July 07, 2013

Oulde Fields, New Corn-cerns

I've been on the road this week with my family, so I apologize for not having said anything yet about the resignation of my dean, Ken Randall, or his new position at InfiLaw. I've seen a couple of comments elsewhere suggesting that this deserved more attention than it had gotten so far. I think that's quite right. (On both sides. I was surprised that the scamblog types didn't write more about it this week as well.) In any event, given that I teach at Alabama and have written some about law school issues, it seemed right that I should say something, at least. Some added reason for doing so certainly is supplied by Paul Campos's post about this, which I heard about at The Faculty Lounge. As usual, I think he makes a good and legitimate point among several weaker ones.

I view the two things--Ken's resignation and his new job--distinctly. My colleagues have already laid on the praise elsewhere. I'll try to give some particulars rather than offer another general encomium. On a professional level, Ken was a tremendously successful dean at Alabama, certainly by the conventional and contestable measures but also by most others. In particular, given that most of our graduates stay in the southeast and don't go to megafirms, I'm glad that tuition and class sizes have remained relatively low. He has also done great things in terms of personal contact with students, faculty hiring (obviously I have a bias here), fundraising in the face of declining state funding, relations with the larger university, attention to detail, and strongly improving the reputation (and ranking) of the law school. He's been innovative, resourceful, and entrepreneurial in a host of ways. Any innovation or entrepreneurial moves are always open to question and discussion, but I think he has done so in a way that respects both our students' needs and interests and our academic mission. In general I think it's fair to conclude that he's done as good or better a job than deans at his peer schools have, and I'm very grateful. On a personal level, I always found him to be very energetic, supportive of my work and needs, and kind to my family. I sincerely appreciate it.

Ken has been interested in entrepreneurship and venture capital for a while, and began teaching in that area a few years ago. (That's why I didn't set much store in any rumors about why he stepped down. He's been dean for a very long time, and has been interested in new challenges for a while.) I have no personal knowledge here, but I assume that the InfiLaw venture is a way of developing that interest while still getting the benefit of his considerable professional experience in legal education.

I hope and assume that in his new position he'll try to balance innovation with considerations of student needs and core educational mission. And, provided there's institutional diversity and a core of traditionally functioning schools out there, I'm not a purist about what higher education should look like or whether profit-seeking can or can't be a part of that. But, like everyone else, I worry, if I may put it gently, that the InfiLaw consortium schools educate too many at too much cost for too few prospects. I sincerely wish Ken the best in this and any other venture, but I still worry about these things a lot. Those concerns aren't unique to for-profit schools, but they're certainly highly pertinent in their case.

Like I said, I view the two things distinctly. All of us who have worked with Ken are grateful for our time with him and think he deserves praise for his deanship. I wish him well at InfiLaw. But I do harbor general concerns about that venture, concerns that have nothing to do with his own role in it. My hope if anything is that if anyone can, he will find better ways to balance student needs against investors' interests in such an enterprise. But I worry about how well those schools have done so thus far.

Given Ken's success at Alabama, and his move from a traditional public university to an unconventional venture, I think anyone who thought this move deserved more commentary--including expressions of doubt or criticism--was right. Whether it's good or bad, it is certainly noteworthy. I can't say whether it carries a deeper message for law schools or "law school crisis" issues in general. It may, but there's some reason to doubt it. Ken had a preexisting interest in entrepreneurial work and venture capital; this move may be more about developing his own interests than about anything systemic. But it's still noteworthy.

To that extent, I think Campos was quite right to call attention to it, and so were some recent commenters on The Faculty Lounge. We've now had enough time to commend Ken for his performance in his old job, and it's not untoward at this point to concern ourselves with his new one. And if such a move is worth noting, I certainly think there must be room for criticism--of the move, or of InfiLaw itself, or some combination.

On the other hand, most of us who worked with Ken were still processing his departure from Alabama, and expressing appreciation for his work there, before we'd had much of a chance to learn or say anything about the InfiLaw position. To the extent that Campos's post elides events, makes it seem as if the folks who were praising Ken were making a statement about his new job rather than giving him his due for two decades in his last job, and follows his custom of casting himself as Diogenes, it is misleading if not false. And I think those of us who worked with Ken and believe he did a great job as dean would feel awkward about trying to hit both notes at the same time: acknowledging our relationship with him and praising his work to date, but still registering our preexisting doubts about whether many law schools, emphatically including for-profit ones, are benefiting their students. It takes a long-winded Canadian to try to do both, diplomatically, in a single post. (Although I did try to keep my sentences shorter, for once.)

Still, I do think the two events are distinct. Praising Dean Randall for his work at Alabama doesn't require us to have no concerns about InfiLaw. Having doubts about InfiLaw doesn't require us to be silent about Ken's many accomplishments to date. That people who worked with him over two decades made our appreciation known this week shouldn't be cause for surprise or criticism. But the fact that he went from that job to this very different new venture is certainly noteworthy. It's fair if that includes concern or criticism.

Posted by Paul Horwitz on July 7, 2013 at 03:49 PM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Saturday, June 08, 2013

A Meta-Post on Tenure

When posts disappear, people notice and wonder why. We had a post up the other day with some sound advice on getting tenure in the legal academy. This is a group blog, and not all decisions are made collectively, so I was personally surprised when it disappeared. My general understanding is that the reasons for taking it down were specific to the institution of the writer, which I can understand. It was not taken down because it raised sensitive issues in general, or because some people felt it revealed some kind of dangerous truth about law teaching. But I also understand the issues some readers had with it. This is, after all, a pretty sweet job, and certainly a much sweeter one than having no legal job at all. But it obviously ought to be possible to talk candidly about getting tenure, and give realistic advice about it, without being (or being accused of being) insensitive. So let me take another, somewhat repetitive, crack at it, because I'd feel bad if there were no record at all of our having weighed in on it, or if it were assumed that we were backing off of the issue generally. Also, it gives me a chance to add some of my own thoughts on getting tenure, and on the meta-issue of whether it is somehow improper to write about this subject at all.

To summarize the previous post, some of the following advice was given: 1) Don't get to your scholarship too late in the tenure clock. 2) Don't co-author too much pre-tenure. 3) Be sufficiently social with your colleagues locally and in your field. 4) For tenure purposes, be aware that tenure will depend mostly on scholarship, not teaching or service. There are thus dangers in "overinvesting" in teaching before tenure. The author made quite clear that he personally "over"-invested in teaching and was happy that he did so, and that his advice was meant to be realistic, not approving. This wsa the point that arounsed the most negative responses elsewhere. 5) Make sure your projects, including books, are compatible with your tenure clock. 

My thoughts follow after the jump.

The first thing I'd say is that most of this advice strikes me as sound given the current set of norms. Like others--like most of us in law teaching, I suspect--I worry about many of those norms. But given general norms in the legal academy, the advice seems reasonable.

I would still say, and have said here before, that for the most part, as the post noted, tenure is not a huge concern in American law schools, either in absolute terms or in comparison to other sectors of the academy. Getting a law teaching job is much tougher than getting tenure itself. And, I think, some tenure denials in the law schools end up being easy cases in which, by the time the tenure decision comes around, it's evident to everyone that the individual just can't get things written, or is generally ill-suited for the job, or what have you. There are definitely exceptions; there are cases of people who clearly would merit tenure at some or most law schools and yet still didn't get it, for local institutional reasons. I don't mean to ignore such cases or be insensitive to those individuals. But they do not represent the common run of cases. And my anecdotal sense is that fewer institutions these days end up making highly contentious and politicized tenure grants or denials than they did at the height of the factionalization of the legal academy.

I think this matters. Of course, even those who seem to be doing all the right things, at an institution that appreciates them, may feel insecure about tenure and may welcome sound advice about how to get it. But just as we have to be realistic about the present norms surrounding tenure, so we have to be realistic about the fact that tenure is, for better or worse, hardly an extraordinary challenge in the legal academy. Consider the bar exam. I tell students that they ought to take it seriously, budget their study time carefully, take plenty of practice exams, not let it all wait till the last minute, and so on. But I also tell them that for most students who are capable of graduating from my law school, if they do all those things there's no reason to get into a state of panic about it. I would say roughly the same thing about law school tenure. The amount of energy many pre-tenured profs expend worrying about tenure still seems to me disproportionate to the actual grounds for concern. Law professors should worry about tenure enough, but not way too much.

A broader point I have made about tenure here before is that this is supposed to be a profession and a vocation, not just a sweet job. (Although it surely is that.) For all the talk one hears from (some) law professors about speaking truth to power, speaking independently and courageously, and so on, I don't hear half as much talk about how professors seeking tenure should worry first and foremost about those things, and not about securing tenure. I don't buy the view--which I see much less of these days, although there are still vocal proponents of it--that anyone capable of getting a job in law teaching could easily switch over into a lucrative job in private practice. That might have been true when one started law teaching, but not by the time one has invested several years in teaching and out of practice. But I doubt the choice is generally between teaching or nothing for most. In any event, to the extent that one believes that law teaching ought to be a vocation and a profession, that shouldn't be the deciding factor in your choices as a teacher and scholar pre-tenure.

Thus, my best advice for entering law professors is still: Decide what kind of teacher and scholar you want to be, and--with due humility and willingness to take advice from others--be that kind of scholar and teacher. If that means you feel compelled to write a book before tenure, maybe you should. If it means you want to co-author some pieces, perhaps you should. If it means you feel compelled as a scholar to write about a controversial issue, then by all means do so; there's no guarantee that the courage you lack now will suddenly appear after you've been tenured. I'm not saying to ignore the realities of the tenure process under current norms, or to refuse to accept prudent advice from older and wiser colleagues. There is a difference between being intrepid and being ignorant or blind. Still, it is important to cultivate a sense of yourself as a scholar and teacher from the outset, to have a sense of self and integrity, to focus on your vocation rather than on job security, to care about the work rather than the job, to do what you believe you must. If that involves risks, those risks are quite acceptable, and fall under the category of "first world problems"; and the percentage of tenure grants at law school suggests they're usually not huge risks anyway.

That said, the advice given in the earlier post and summarized above is generally sound and should be kept in mind. But I do have some questions about it. In particular, some of the advice about getting pieces out, co-authoring, and book writing seems a little behind the times. The hiring model has increasingly moved away from one in which the entrant has little experience teaching and writing before entering the legal academy. Most schools insist on prior publications, and in many cases the entrants are given partial tenure credit for at least one of those pieces. And many people entering the legal academy come from fellowships, in which they've already demonstrated an ability to write and publish (and, in some cases, already started up working up their teaching notes). For someone who already has a couple of pieces out and one or more in the pipeline, the advice not to co-author yet or to wait on a book seems less apt. We should consider whether the changing way in which we hire is changing, or should change, the advice we give (and the norms and standards we apply) to those seeking tenure. That's double-edged, perhaps; maybe we should expect more of the writing of junior scholars who already have substantial writing and teaching experience. But it may also mean that there's more room for flexibility in the choices those individuals make in their pre-tenure years.

Let's talk about the "don't overinvest in teaching or practice" point--which, again, was made in a spirit of realism, not commendation. Some responses, here and elsewhere, suggested that this revealed everything we need to know about law schools and law teaching. I get the reaction, but I think it's wrong. First, I could imagine similar advice being given across the academy. Second, whatever "overinvesting" in teaching means, the original post suggested--correctly--that most junior law professors do it; and I think he was right that most of us are happy we did so. Your colleagues are not the ones standing in front of a room of students, who have reasonable expectations that you'll know how to do your job; you are. And you do have an obligation to them. Third, he didn't recommend underinvesting in teaching, or define what an appropriate investment in teaching is. As I understand it, what he said, in effect, was: you ought to teach well, but you ought to be aware that your colleagues will judge you more for your scholarship than for your teaching, for better and worse. That is accurate--again, for better or worse. The best advice I can give is that the way to resolve this is not to invest less in teaching, but to be willing to invest more in late nights and foregone personal time so you can also get your scholarship done. That's not too much to ask, given the terrific job you have.

I am more interested in a different question: not whether law teachers overinvest in teaching pre-tenure, but whether they underinvest in it later. I don't have a sense of how much this happens. My own experience, over ten years of teaching, was that I invested heavily in teaching in the first few years, went through a period where I invested less than I should, and for the past few years have tried to retool and increase my investment in teaching. I confess I still have more to do on this front; I've changed my evaluation approach a lot, and altered chunks of all my courses, but I would like to increase my class prep time and ought to think about switching casebooks again. I'm pretty confident I'll get there, and then go through the cycle again. I suspect other teachers go through similar cycles over the course of their careers, and that this isn't different from the up-and-down waves that all people experience in their careers. But the incentives to invest in teaching do go down after tenure. It's important for law teachers, including those just starting out, to remind themselves that every few years, the best thing to do with a really good set of class notes may be to throw them out and start over, to reinvest in one's professional training as a lawyer, to rethink what works and doesn't pedagogically, and so on. 

Another question the earlier post didn't address much head-on is how we should feel about the current norms. I'll just say I think it was evident that the post was at least ambivalent, if not critical, about some of those norms. I would add that I think junior professors, even if they take the earlier advice on board, are not excused from rethinking those norms and speaking out about them. And part of the reason I feel this way is that I think it's easy, once one takes those norms for granted, to start imposing them thoughtlessly once one is tenured and voting on tenure decisions. I worry that pre-tenured professors who do things a particular way because "that's the way it is," while saying that of course they don't agree with the way things are, will end up imposing the same norms once they're entrenched in the academy: that they'll turn an is into an ought without thinking much about it. 

Leaving aside institution-specific questions, is it or should it be impolitic or impermissible to talk about an "appropriate" investment in teaching given prevailing norms, or to talk about the burden of grading exams, or in general to talk about the ups and downs of being a law professor? My general answer is: God, I hope not. But I would add two things about that.

First, it is accurate to say that these are not huge concerns and that they in no way outweigh the many, many privileges and advantages of the job. Complaining about grading exams can seem like complaining that your other car is in the shop or that it's hard to find good help these days. I worry that what this means in practice is that any such post will have some obligatory, boilerplate preface or caveat, that this will have little to do with real candor or sensitivity, and that some readers will draw wildly oversensitive conclusions about the callousness of the writer if the standard formula is skipped. And I worry that people will just stop writing about those matters altogether. But I agree that there is room for recognition that these are not the biggest or most challenging problems in the world, even for the law teachers who write about them.

Second, I think there is room for a recognition that any job also involves mechanics and personal considerations; that some people--law teachers, obviously, and would-be teachers, and other academics, and even law students--may be interested in those mechanics; and that it's not per se unreasonable or insensitive to write about them, even in an era of "law school crisis." There must surely be people out there who take their jobs--or their nice cars or nannies or what have you--for granted. But writing about the mechanics of one's life or job does not automatically mean that one takes these things for granted or lacks any perspective about them.

I imagine there are surgeons out there who discuss what music they like to play in the operating theater, and may even do so publicly. In a one-on-one conversation with my own surgeon, I'd probably prefer she not bring it up unless I raised the question first. But I might indeed be curious about that question, and I wouldn't assume that because she's interested in it herself, she doesn't care about the patient or the surgery. Nor do I think all surgeons should be obliged to pretend they don't care about it, that every minute they spend in the OR is taken up thinking about their patients' hopes and dreams, that it never crosses their minds that their feet are tired or that some particular procedure is routine or a pain in the ass. In talking about the mechanics of our job, we should be sensitive. But that's not the same thing as concluding that it's always insensitive to talk about them. That's not reasonable sensitivity.

If I may offer an example closer to home, the Chronicle of Higher Education recently ran an article--under a pseudonym, alas--titled: "I Don't Like Teaching. There, I Said It." The author's point was not that he or she hates the job altogether, or that anyone should pity him or her. Nor was it that he or she would phone it in from now on. It was a simple human admission that, even in plum jobs, there are times in one's career when one gets more or less personal rewards or has more or less warm and fuzzy feelings toward that job or some aspects of it. The author concluded (my emphasis): "Too often we look at whether a colleague or a prospective colleague seems to like teaching, and then use that as a proxy for whether they are good teachers. We should look at whether they engage in the right behaviors.

I didn't agree with the whole article, by any means. But I didn't think it was insensitive--especially in a journal that is primarily read by an academic audience (as this blog is). It is true that there are plenty of people who would love to have that person's job. It is also true that there are plenty of humanities students who would like to have better teachers--or less crippling debts, or some kind of job upon graduation. That's true for law schools too, and we should think about, write about, and (the hardest part) act on those concerns. It's also true that on a straight utilitarian measure, if it were insensitive to ever write about anything other than the worst problems, we would all be better off writing about (and moving to) Syria or Haiti rather than anything having to do with American law professors--or American law students. I take Luke 14:26 and Matthew 19:21 very seriously, and I don't care for readings of those verses that domesticate them. Most people fail that standard, of course; certainly I do. It's a good, if brutal, standard for moral self-judgment. It's not a very good standard for judging others. And it's not a very realistic standard for choosing writing subjects either. 

Posted by Paul Horwitz on June 8, 2013 at 11:58 AM in Paul Horwitz | Permalink | Comments (21) | TrackBack

Thursday, June 06, 2013

"Alternative" Alternative Careers for Lawyers

Two stories about former lawyers caught my eye recently. Suffice it to say that these are not what I would call useful models for alternative careers for lawyers! It was the facts in both cases that I found interesting. 

In the first, a two-year-old story I came across recently details the move of former legal academic Clare Dalton from law teaching to acupuncture, of the "Five Element" school. (From the story: "If I’m treating a patient with a migraine whose home element is fire I might choose different points than someone with a migraine whose home element is water.’") Dalton's name may ring bells for fewer people today, but at one time she was quite the cause celebre in the legal academy. 

The second story comes from that classic running inventory of hilarious stories about dubious trends, the New York Times style section. It involves so-called "space clearers," whose work purports to consist of clearing the bad vibes from a space--a service for which, apparently, some people are actually willing to pay decent money. One of the stars of the story, Bhakti Sondra Shaye, describes herself as a former corporate lawyer.  

Both interesting, if fairly inconsequential, stories. For my money, Shaye's new profession is less harmful than Dalton's, although opinions doubtless will vary. Obviously, the punchlines about whether either of these new professions are less harmful than practicing or teaching law write themselves, so don't bother.  

Posted by Paul Horwitz on June 6, 2013 at 12:09 PM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Could There Be a "Good" Version of "Deals for Wheels?"

Lines or queuing are much in the news these days, as if Michael Sandel didn't already have enough work. A particularly horrible-sounding and much-Facebooked example was the recent story about wealthy families "hiring disabled people to pretend to be family members so that they can skip lines" at Walt Disney World. The optics were bad enough, but it certainly did not help when a parent allegedly said, "This is how the 1% does Disney."

My reaction was the same as pretty well everyone else's. After talking with a friend, however--and please send your wishes for bad karma in that person's direction, not mine--I'm wondering whether people would feel differently about it if such a system were set up differently. What if a matching system were set up, in which families with financial resources and without disabilities could match up with families without financial means and in which one or more children have disabilities, with the first family getting the advantage of line-jumping and the second family getting an opportunity for a paid vacation they otherwise would not be able to afford at all?

Obviously there would be logistical questions. I'm just wondering whether people's moral intuitions would be different with respect to such a system. Would this be more acceptable? Still morally objectionable? Are your moral views about such a system different from your views about a system in which some company sets up rental access to the same small set of disabled children who would be well paid to visit Disney again and again? Is the latter system really so terrible? Not that throwing the word around settles any questions, but would the former (matching) system be less of an act of commodification than the latter (rental) system? Just curious about people's intuitions and reactions.    

Posted by Paul Horwitz on June 6, 2013 at 11:46 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Sunday, May 26, 2013

Lemon is Dead

The New York Times yesterday published the obituary of Alton T. Lemon, "a civil rights activist whose objection to state aid to religious schools gave rise to a watershed 1971 Supreme Court decision." That case, of course, is Lemon v. Kurtzman. Lemon died in Pennsylvania on May 4 at the age of 84.

Lemon's biography itself is interesting; I did not know, among other things, that he was African-American and a civil rights activist. He remembered playing basketball with Martin Luther King at Morehouse College. He was also, interestingly, the first black president of the Ethical Humanist Society of Philadelphia. The obituary concludes: "Mr. Lemon attended the Supreme Court argument in his case, but he found the experience a little alienating. 'When your case gets to the Supreme Court, it’s a lawyer’s day in court,' he said. 'It doesn’t matter to the justices if you are dead or alive.'" Certainly Lemon's name is famous today for a generally applicable legal test, not any personal details about the man. 

The title of the post is, of course, not meant disrespectfully. It is the title of Michael Stokes Paulsen's famous article about Lemon v. Kurtzman, an article that also focused (understandably) on the test and not the man. 


Posted by Paul Horwitz on May 26, 2013 at 09:20 AM in Paul Horwitz | Permalink | Comments (1) | TrackBack

Tuesday, May 21, 2013

Helping Oklahoma

Just a quick PSA-type post from this Tuscaloosan: Here are a few sites with suggestions about how to direct your aid for the victims of yesterday's tornado in Oklahoma. 

Posted by Paul Horwitz on May 21, 2013 at 09:26 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Monday, May 20, 2013

Beware of "Town of Greece" Bearing Gifts

The Supreme Court has granted cert. in Town of Greece v. Galloway, a case out of the Second Circuit involving prayers given by guest chaplains before monthly town board meetings. Here is the SCOTUSBlog page, and here's the Second Circuit opinion by Judge Calabresi. 

There has been a good deal of circuit court action involving legislative prayer, but the Supreme Court has basically not touched it since Marsh v. Chambers. Prediction is pointless, so I'll just say the following.

1) I talk about legislative prayers and similar cases in my book The Agnostic Age. I characterize the rulings in this area as "constitutional easements" over the Establishment Clause and argue that they are constitutionally problematic, at least, although I suggest that we might be better off letting sleeping dogs lie. (Andy Koppelman criticizes Marsh in similar terms in his excellent recent book, Defending American Religious Neutrality and says clearly that it should be overruled.) It would appear that the dogs are awake and hungry.

2) There is a good deal of consensus and friendship among law and religion scholars these days, at least in my view. The friendships will remain, I'm sure. But this is one case that will reveal the differences among us more starkly than many recent cases. I look forward to friendly disagreements with colleagues like Rick Garnett and Marc DeGirolami.

3) The best scholarly work in this area that I am aware of is by Christopher C. Lund. If you're interested in this case and these issues, you ought to read Chris's work. I hope we can get him over here for a timely guest stint at Prawfsblawg.   

Posted by Paul Horwitz on May 20, 2013 at 10:18 AM in Paul Horwitz | Permalink | Comments (3) | TrackBack

Thursday, May 16, 2013

First Amendment Institutions in the Law and Politics Book Review

My most recent book, First Amendment Institutions (it makes a good Victoria Day gift!), is reviewed in the latest issue of the Law and Politics Book Review by law professor Ruthann Robson. It's a tough but fair review. I welcome the criticism, and hope I may be forgiven for cherry-picking a couple of generous lines: the book "provides the most sustained, nuanced, and well-reasoned argument for an 'institutional turn' in First Amendment jurisprudence," and "admirably achieves" the goal of "open[ing] a conversation about First Amendment institutionalism, . . . providing a book that is worth reading, considering, and debating." Obviously, I hope people will read and even buy the book, and take part in that conversation. But it's very much meant to be a conversation, and Robson's criticisms are a valuable part of that. Read the whole review (and the book, of course!).   

Posted by Paul Horwitz on May 16, 2013 at 08:00 AM in Paul Horwitz | Permalink | Comments (2) | TrackBack

Wednesday, May 15, 2013

A Jot on "Balkan Ghosts"

The latest con law "jot" from Jotwell: Pat Gudridge on Reva Siegel, balkanization, and equal protection. Enjoy!

Posted by Paul Horwitz on May 15, 2013 at 10:08 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Freedom of the Church Without Romance

I'm happy to share my latest draft paper, Freedom of the Church Without Romance. It was written for a symposium at the University of San Diego's law school called "Freedom of the Church in the Modern Era," and I must say that the articles coming out of that symposium, mine excepted, are very strong and will constitute excellent resources for those interested in the increasingly popular subjects of "freedom of the church," religious institutional autonomy, the ministerial exception, and related themes. Some of them are available for download here, and see also these pieces

Every scholar has articles they're more or less proud of for one reason or another, and I'm quite proud of this one, for two reasons: (1) it takes an idea I have championed and associated myself with and subjects it to critical analysis, rather than simply defending it one more time; and (2) it makes the important (I think) point that church-state legal scholars ought to do much more with the substantial literature on the economics of religion. I hope others enjoy it, and I welcome comments. Here's the abstract:

This Article is part of a symposium issue titled "Freedom of the Church in the Modern Era." Freedom of the church, roughly, connotes the independent nature or sovereignty of the church. The most dramatic moment in its development was the eleventh century Investiture Controversy, with its confrontation between Pope Gregory VII and Emperor Henry IV at Canossa, but it has a long prior and subsequent history. Recently, with the renewed scholarly interest in the institutional rights of churches and religious organizations and the Supreme Court's decision affirming the "ministerial exception" doctrine in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC,the idea of "freedom of the church" has taken on new champions--and critics.

This Article, from an author who has written supportively about freedom of the church and/or religious institutionalism in prior work, takes a deliberately unromantic look at freedom of the church. It evaluates it through two useful disciplinary lenses: history, and the economics of religion.

Both historical and economic analysis of the concept of"freedom of the church" suggest the following conclusions: (1) The concept should be treated carefully and with a full awareness of its mixed history, without undue romanticism on the part of its champions--or a confident conclusion on the part of its critics that it is no longer necessary. (2) Whatever the concept of "freedom of the church" means today, the present version is decidedly diminished and chastened, a shadow of the medieval version. Supporters of freedom of the church should welcome that fact. Freedom of the church persists, and may have continuing value, precisely because it has become so domesticated. (3) There are solid historical and economic grounds for some form of freedom of the church or religious institutional autonomy. In particular, religion's status as a credence good, whose value and reliability is certified by religious agents such as ministers, strongly suggests that state interference with religious employment relations can be dangerous to a church's well-being and long-term survival. (4) The history and economics of religion also teach us something about the optimal conditions for freedom of the church--the conditions under which it is likely to do the most good and the least harm. In particular, they suggest that champions of freedom of the church ought to welcome religious pluralism and a strong non-establishment regime. 

The Article closes with some speculation about why there has been a recent revival of interest in freedom of the church, including the possibility that its resurgence, even if it is fully justified, also involves an element of rent-seeking by religious institutions.

There are two broader underlying suggestions as well. First, there are good reasons to support some version of freedom of the church, but it deserves a more critical and nuanced examination by friends and adversaries alike. Second, legal scholars writing on church-state issues have paid far too little attention to the literature on the economics of religion.

Posted by Paul Horwitz on May 15, 2013 at 08:32 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Two Moving Testimonies

Here are links to two recent powerful pieces of personal testimony, both dimly but only dimly law-related. The first is this moving letter-cum-tribute between law professor Charles Barzun and his illustrious grandfather, Jacques Barzun. The second, even more powerfully personal, is this piece by lawyer Tony Nitti, about suffering and recovering from a brain aneurysm, in which he observes and explains why, "when recovering from a life-threatening ailment, the real challenge often doesn’t begin until the healing is complete." Both are well worth reading. 

Posted by Paul Horwitz on May 15, 2013 at 08:16 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Monday, May 13, 2013

Sunstein on Albert Hirschman

In the new New York Review of Books, Cass Sunstein has a very enjoyable essay on Albert Hirschman, jumping off of a recent biography. Hirschman's classic book Exit, Voice and Loyalty is well known to legal scholars, with some 870 cites in the Westlaw legal periodical database (including a good new piece by Heather Gerken in the Duke Law Journal). Indeed, I assume many of the authors who cite it have actually read the book! But Sunstein usefully shines a spotlight on other major works by Hirschman, which seem like natural reads for legal scholars but have gotten less attention from them. (In particular, Shifting Involvements, which has 54 cites, and The Rhetoric of Reaction, "a study of the reactionary’s tool kit, identifying the standard objections to any and all proposals for reform," a subject of central concern to much reform-oriented legal scholarship, which has only 84 cites.) 

I found the following passage from Sunstein's celebratory essay especially valuable:

Hirschman was a great believer in doubt—he never doubted it—and he certainly doubted his own convictions. At a conference designed to celebrate the thirtieth anniversary of his first book, who else would take the opportunity to show that one of his own central arguments was wrong? Who else would publish an essay in The American Economic Review exploring the “overproduction of opinionated opinion,” questioning the value of having strong opinions, and emphasizing the importance of doubting one’s opinions and even one’s tastes? . . . [Hirschman suggested] that doubt could be a source not of paralysis and death but of creativity and self-renewal. One of his last books, published when he was about eighty, is called A Propensity to Self-Subversion. In the title essay, Hirschman celebrates skepticism about his own theories and ideas, and he captures not only the insight but also the pleasure, even the joy, that can come from learning that one had it wrong.

This sounds, alas, like the exact opposite of the behavior and incentives of junior legal scholars (and too many senior scholars) today, as well as the law review editors to whom they often cater. I've complained here before about the apparent rise of excessive novelty claims in recent legal scholarship, including articles published in many leading law reviews, which in turn will only encourage that trend. Too many articles today claim, on dubious grounds, to be the "first" or "only" paper to consider some issue or make some argument. Combine that with the frequency of "unified theory" approaches in legal scholarship and the general overconfidence that prevails in the field, and you get a lot of hubris. Some of this is surely strategic; I've heard privately from various scholars who acknowledge that their articles and abstracts overclaim but swear they'll cut out those claims by the time the article has been accepted and moved into the editing process, a move I find questionable as an ethical matter and one they don't always follow through on anyway. But much of the hubris is genuine, and even when it's not it's still there in the articles and may leach into the writer's thinking. 

It's possible that this is just a particular phase in the life-cycle of these scholars, just a function of brash youth and careerism, and that they will think better of it when they get older and wiser. Having built their careers on an insistence that they have offered a "new" and/or general theory, however, I fear that these scholars will only get older, not wiser, and that they will be boxed in by their earlier claims and by the trend in legal scholarship that they helped to encourage and benefited from. How many of them will come back to the work that launched them and consider whether it was wrong? If they do, will those sober second thoughts be prominently published, or noticed at all?

As a personal note, I should add that I have been guilty too, not so much of overclaiming as of providing sweeping general theories and approaches. And yet, the most fun I've had in my work recently has been on two pieces. One gives a more positive assessment to the use of equality in law and religion doctrine, about which I've been skeptical before. The other is a clinical and critical examination of "freedom of the church," of which I've written quite positively in several articles. Any idea worth championing is surely worth going back and reconsidering critically. Indeed, I would think a serious scholar has a positive obligation to reconsider and sometimes disclaim his own past work. I worry that the pace, structure, and incentives of legal scholarship don't much encourage this. Perhaps Ross Davies could start yet another legal journal, this one called "The Journal of Law and Second Thoughts."   

Posted by Paul Horwitz on May 13, 2013 at 08:42 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Friday, May 03, 2013

Weekend Non-Reading

This weekend, Yale Law School's Information Society Project will be holding a phenomenal conference on freedom of expression. The list of speakers and papers is here and it looks just great. I wish I could be there, but if you're in New Haven, stop by. (Why not, if you're in New Haven? You have someplace better to be?) Unfortunately, the papers are password protected, hence the "non-reading" in the title. Given that these are drafts I quite understand, but I hope the authors will be posting them on SSRN soon, or that the organizers will provide the password in a comment to this post. I hope everyone has a good time.

Posted by Paul Horwitz on May 3, 2013 at 01:30 PM in Paul Horwitz | Permalink | Comments (1) | TrackBack

Wednesday, May 01, 2013

Tamanaha on Class and Law School Reform

Brian Tamanaha has posted on SSRN a short and enjoyable piece on my current favorite subject, apart from law and religion: social class and the legal academy. His paper, "The Failure of Crits and Leftist Law Professors to Defend Progressive Causes," is specifically about the failure of "progressive law professors" to do or say much about the problematic conditions Tamanaha explored in his book Failing Law Schools. From the abstract:

The pricing structure of legal education has profound class implications. High tuition will inhibit people from middle-class and poor families more than it will deter the offspring of the rich with ample resources. Law school scholarship policies, for reasons I will explain, in effect channel students with financial means to higher ranked law schools, reaping better opportunities, while sending students without money to lower law schools. A growing proportion of elite legal positions will be held by people from wealthy backgrounds as a result. For students who rely on borrowing to finance their legal education, the heavy debt they carry will dictate the types of jobs they seek and constrain the career they go on to have.

Liberal law professors often express concerns about class in American society — championing access to the legal profession and the provision of legal services for underserved communities. Yet as law school tuition rose to its current extraordinary heights, progressive law professors did nothing to resist it. This Article explores what happened and why.

This is offered in the spirit of critical legal studies — as a critical self-examination of the failure of leftist law professors. The Crits were highly critical of complacent liberal academics of their day, arguing that they had a hand in perpetuating an unjust legal system; here I charge liberal legal academia — including the Crits — with perpetuating the profoundly warped and harmful economics of legal education. What follows will offend many of my fellow liberals. It may even lose me some friends. Liberal law professors must see past their anger to reflect on whether there is a core truth to my arguments, to take personal responsibility for what has happened, and to engage in collective action to do something to alter the economics of our operation. If not, the current economic barrier to a legal career may become permanent.

Without endorsing it in whole, it's a worthwhile and certainly entertaining (if that's the right word) read. A couple of points. I'm not sure what kinds of personal responses Tamanaha has received to his book and other writings on law school reform, but he has made his point about potential personal costs before, and I'm not sure it needs to be made in general terms anymore. That's just a quibble, however. More important, I'm not sure why he focuses on the Crits and SALT. He makes his points about them well enough. But I would have thought that plain-vanilla liberals, including those who insist on calling themselves progressives, constitute a much, much larger and more influential sector of the legal academy than genuine members of the left. If their failures are less glaring and entertaining, their attention, embarrassment, and commitment are probably more important for purposes of actual reform.

Finally, as noted above, Tamanaha writes that "[l]iberal law professors often express concerns about class in American society." I would say in response: Not that often! As far as I can tell, they much prefer to write about other kinds of inequality and identity issues than about class. Understandably, perhaps. "Write what you know," the old adage goes. This is not an issue that the legal professoriate, and especially the elite legal professoriate, is likely to know as much about. I read and enjoyed, more or less, Duncan Kennedy's book on legal education, but I learned more, and more viscerally, about class from this critical review of the book than from the book itself.


Posted by Paul Horwitz on May 1, 2013 at 02:59 PM in Paul Horwitz | Permalink | Comments (28) | TrackBack

Tuesday, April 30, 2013

ABA Committee Discusses Tenure Requirements and Law School Accreditation

An interesting article here. The gist: the ABA law school accreditation committee is looking at several alternatives to the current requirement that all ABA-accredited schools have a system of tenure or comparable security for full-time faculty.

I fail to see the point of the third alternative the committee is considering, which basically strikes me as a rent-seeking move by clinical faculty. But the second alternative seems like a reasonable move to me: "[T]o move away from any tenure requirement. Schools would afford all full-time faculty some form of security of position, but each would decide what system that would be. (The interpretation of the standard stipulates that schools at minimum must have a system of long-term renewable contracts of at least five years.) Schools could adopt different rules for different types of faculty."

Of course, the even shorter gist is probably accurately contained in the only comment currently posted on the NLJ story: "If you're betting on this question, bet on the ABA committee to avoid anything controversial. Really, bar association junkies, how often does any such committee do anything bold?"

Posted by Paul Horwitz on April 30, 2013 at 03:29 PM in Paul Horwitz | Permalink | Comments (18) | TrackBack

Monday, April 29, 2013


The New York Times on Friday ran a long and detailed story about, to put it simply, political- and profit-driven laxity and fraud in the payout of the settlement fund in the Pigford litigation alleging discrimination against black farmers in federal lending. The story is well worth reading. Once nice anecdote, among many (and yes, the story also provides real data), involves a speech given at a Baptist church in Little Rock by the head of something called the "Black Farmers and Agriculturalists Association," in which he boasts "that he and his four siblings had all collected awards, and his sister had acquired another $50,000 on behalf of their dead father." He concludes: "Let’s get the judge to go to work writing them checks! They have just opened the bank vault." 

Two observations. First, as the story notes, the political and moral pressure that led to the substantial and often nonsensical payouts in the black farmers' case is also influencing parallel litigation involving women, Hispanics, and Native Americans. Here's an excerpt about the latter category of litigation, in which the Obama administration began settlement negotations in 2009 despite the fair prospect of victory if it had proceeded to ligitation:

Only 4,400 people filed claims, with 3,600 winning compensation at a cost of roughly $300 million. That left $460 million unspent — of which roughly $400 million under the terms of the settlement must be given to nonprofit groups that aid Native American farmers.

Ross Racine, the director of the Intertribal Agricultural Council, based in Montana, said his organization, with an annual budget of just $1 million, is perhaps the biggest eligible group. But many others are lining up to share the windfall, he said.

“Everybody is looking at this money on the table and saying, ‘Give me some because I am a good guy,’ ” he said.

The remaining $60.8 million will go to the plaintiffs’ lawyers, led by the Washington firm Cohen, Milstein, Sellers & Toll. In court papers, the firm argued that the size of the payment was justified partly by the fact that the settlement nearly equaled the maximum estimate of economic damages. Joseph M. Sellers, the lead counsel, acknowledged the unspent amount was unexpectedly big. But “absent a court order,” he said, “we don’t intend to return it.”

Second, I was curious about how legal scholars had treated this settlement. It's not my area, but I would assume that problems with this litigation and the settlement fund were or should have been well-known by anyone working in the field. Certainly, given the vagueness of the proof requirements, the political pressure to settle generously, the incentives of plaintiffs' lawyers, and the common use of distributions of massive amounts of money to public-interest groups as part of the buyoff process, it would be no surprise to anyone that both individual fraud and what we might call public interest graft are possible side-effects of such settlements, and this should be especially interesting to those working on reparations issues. My search of the literature was less than scientific, but for the most part the discussions I found were either neutral or positive, with little or no acknowledgment made of these potential problems. Nor have I seen much on the legal blogs yet about this story. I trust that the Civil Procedure & Federal Courts Blog and the Native American Law Blog, among other obvious sites, will take note of the story.    

Posted by Paul Horwitz on April 29, 2013 at 10:16 AM in Paul Horwitz | Permalink | Comments (1) | TrackBack

Friday, April 26, 2013

What Happened to Occupy?

The Financial Times has a well-done roundup review of several books about the Occupy Wall Street movement, mostly by people involved in it. The short version: "A sympathetic reader of these books will end up with the slightly exasperated feeling that Occupy wasted its chance as a political movement." A couple of observations:

1) Past Prawfs guest Bernard Harcourt of Chicago appears in the review, with a quote from his essay in one of these collections. This is just a guess, but when the dean at the University of Chicago Law School sent a memo to the faculty urging them to assist the efforts of its students and recent graduates to occupy Wall Street, I doubt this is what he had in mind.

2) I love this quote from Michael Taussig, a Columbia anthropology prof who also wrote an essay for a collection. As the review puts it, "Taussig hails the coming together [in Zucotti Park] of a 'community defining itself through a new language and sense of collective': this, he reflects, is a problem for politicians and experts who 'want to channel the messianic and transgressive  impulse into their own need for pathological fame and power'." The use of "pathologicial" is especially nice here; why let people think for themsevles when you can just insert a pseudo-diagnostic adjective? But I would have thought that politicians and experts who wanted to pursue fame and power would have been delighted by the Occupy movement.

3) There are probably lessons in here for the popular front of the law school reform movement.  

Posted by Paul Horwitz on April 26, 2013 at 01:24 PM in Paul Horwitz | Permalink | Comments (2) | TrackBack

Friday, April 19, 2013

Interesting Reading on Current Events

Two interesting posts from VC in the last day on current events in Boston. The first, from Stewart Baker, asserts that the ACLU and EFF were wrong about thing #1, and concludes that they therefore must also be wrong about thing #2. The second, from Eugene Kontorovich, laments (I think) that the two Chechen suspects "have succeeded in turning Boston, America’s cradle of liberty, into a prison," a situation that shows "that it is not just the civil liberties of terrorists at stake, but also those of millions of innocent civilians." He adds that, if these suspects are actually part of the group of Chechen Islamic terrorists from abroad and if that threat has come to the United States, then "dealing with such a threat would also be impossible with a politically correct approach to counter-terror that, for example, turns away from talking frankly about the terrorists['] profiles and motives," which would mean, well, I'm not sure what, but it sure would be better than "obscene lines and searches at airports."

Search me if I can figure out exactly what the hell either of them are talking about. But, like I said, interesting posts. 

Posted by Paul Horwitz on April 19, 2013 at 12:58 PM in Paul Horwitz | Permalink | Comments (1) | TrackBack

Wednesday, April 17, 2013

Blackman on "History" and Biochemistry

In an enjoyable and well-written post, Josh Blackman asks whether originalist questions present anything more difficult or different from other complex questions the courts are called on to resolve. He writes:

A common attack on originalism is that judges are not trained historians, and lack the skills to understand the nuance and context of history. I have never found this argument particularly compelling, because judges are frequently called on to understand complicated disciplines outside the law. . . .[M]y point goes more to methodology than substance. Judges are called on to understand difficult concepts. Relying on briefs by attorneys who specialize in these areas, judges, by their best lights, come to an answer. . . . History seems to be even closer to the area judges train in than biochemistry. Considering the competing briefs of historians allows for an adversarial review of the original public meaning of certain concepts.

With respect, I think this is not yet a sufficient response. For one thing, judges could of course do both badly. The fact that judges are (or consider themselves) called on to decide complicated issues in other fields doesn't mean they do it well, so it doesn't tell us whether it's a problem with respect to history; it just tells us it's not a unique problem.

For another, in many such areas there is a substantial administrative agency structure in place to allow first-order evaluation of these questions by experts with significant experience in the field. Much of the question for judges then becomes what level of deference to apply and when. That's less true of history; there's no Federal History Agency taking a first stab at these questions. Yet again, the questions that arise with respect to biochemistry may have readily falsifiable answers that help to weed out clearly wrong opinions; the questions that arise in history may not. 

Blackman is right that it's ultimately a question of methodology, certainly. But that also suggests a difference. Courts, or courts in concert with the administrative state, may seek ways to avoid having to decide difficult technical questions outside their expertise. But originalism, of whatever variety, is an approach to constitutional law that actively forces judges into a field in which they arguably lack expertise. It increases rather than decreases the epistemological problem. If you were looking for a judicial methodology of constitutional interpretation that avoided putting judges in a position for which they're ill-suited, presumably you would focus on what judges do well and often--crunching doctrine--rather than on an approach that requires them to do history. Originalists argue that they are required to do some form of history because that is what legitimate constitutional interpretation requires. Presumably, then, they would argue that whether they can do it well or not, it's what they're called upon to do just the same, and Article V will serve as a safety valve. Fair enough, if you accept the premise (I don't). But it's still an odd ex ante choice of method if what you care about is comparative institutional expertise. 

A slightly different but related answer, and I think an accurate one, is to say that originalist judges aren't "doing history" in any sense in which actual historians would describe their own field. They're doing a legal activity that consists of deriving present meaning from text based on the original public understanding of language. They're doing so in a way that is constrained in various respects in terms of sources, goals, selection effects (the fact that judges are trying to answer a specific question about a contemporary legal issue, and so will be affected by presentist concerns, rather than at least taking on a broad question with less of an interested starting-point), and so on. The results of that method may be judged in various ways; of these, historical accuracy is one but hardly the only measure. Historians, and historians' briefs, may aid them in this endeavor, but not much and rarely definitively. (And do judges really listen to historians anyway?) What they do may be closer to etymology than history. I doubt they have much expertise here either. But it's at least valuable to have a more precise understanding of what they're doing, rather than use "history" as a catchall label or judge their efforts by the standards of a related but different field altogether. 

The ultimate question is whether originalism is required of judges engaged in constitutional interpretation or not; I can't answer that question here. But if it is, it won't matter much whether they're good or bad at it, or whether they're any better or worse at that than at deciding cases involving biochemistry. Still, we recognize in all kinds of ways that judges are lousy at biochemistry and seek ways of avoiding the necessity of doing so, or of limiting their work in this area to questions and methods they're capable of dealing with. Originalism does the opposite: it requires judges to dive headlong into an area of inquiry--but don't call it "history!"--at which they're arguably not especially able. I doubt the comparison between history and biochemistry is entirely apt, for the reasons I've given; but if it is, I don't see why it should comfort us any. 


Posted by Paul Horwitz on April 17, 2013 at 10:49 AM in Paul Horwitz | Permalink | Comments (9) | TrackBack

Thursday, April 11, 2013

OMFG It's the Michigan Law Review Books Issue

The annual books issue of the Michigan Law Review is always one of my favorite law review issues of the year. (Yes, some of us still think in terms of law review "issues.") For one thing, I love books and am glad to see them get attention in the legal periodical literature--especially now that I've written a couple of the suckers. For another, too many law reviews, for totally understandable reasons that have to do with getting cite counts rather than actually serving the cause of legal scholarship, do too little book reviewing. Also, from a sheer reader's perspective, book reviews are often among the best-written things in law reviews, both because they can skip over the usual massive literature review section and (I am now coming to think) because the format tamps down on the need for ridiculously overextended "novelty" claims. 

Anyway, this year's issue is now out and available online. It includes my review of Brian Tamanaha's Failing Law Schools and Walter Olson's Schools for Misrule, but it also has many good pieces. Enjoy!


Posted by Paul Horwitz on April 11, 2013 at 10:28 AM in Paul Horwitz | Permalink | Comments (4) | TrackBack

Symposium on When the State Speaks

My friends at Concurring Opinions are running an online symposium this week on Corey Brettschneider's book, When the State Speaks, What Should It Say?: How Democracies Can Protect Expression and Promote Equality. I'm participating and have a couple of posts up--one a set of general questions, and the other more focused on Brettschneider's discussion of religious liberty. By all means, surf on over and check out those posts and others, including Brettschneider's responses as he posts them. 

Posted by Paul Horwitz on April 11, 2013 at 10:05 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Wednesday, April 03, 2013

The [tk] State of North Carolina

Here is a nice story about a House bill in North Carolina that declares that "the Constitution of the United States of America does not prohibit states or their subsidiaries from making laws respecting an establishment of religion," and that the "North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools or any political subdivisions of the State from making laws respecting an establishment of religion." It has eleven sponsors so far, all Republicans. 

Note that the bill does not appear to be making the "jurisdictional" argument that the Establishment Clause does not prohibit state establishments and has been wrongly interpreted to do so through incorporation. Rather, it appears to be based on some kind of bouillabaise of nullification, popular constitutionalism, something like federalism, and denial of the power of federal judicial review. It says:

The Constitution of the United States does not grant the federal government and does not grant the federal courts the power to determine what is or is not constitutional; therefore, by virtue of the Tenth Amendment to the Constitution of the United States, the power to determine constitutionality and the proper interpretation and proper application of the Constitution is reserved to the states and to the people. . . Each state in the union is sovereign and may independently determine how that state may make laws respecting an establishment of religion.

The bill does not say anything about whether its theory of interpretation and authority applies to any other federal constitutional provisions, such as the Speech Clause. It also does not actually require establishment, nor does it say which religion the state would establish if it went ahead and did so. Here's hoping it goes with Islam, in the spirit of using states as laboratories of experimentation.  

Posted by Paul Horwitz on April 3, 2013 at 10:05 AM in Paul Horwitz | Permalink | Comments (3) | TrackBack

Monday, April 01, 2013

Doing Good, Doing Well, and Not Waiting in Line

My next book project will be on social class and the American legal academy, so I was fascinated by Dale Carpenter's impassioned account of his experience lining up to watch the oral arguments in the same-sex marriage cases. According to his description, after waiting all night in the Supreme Court bar members' line--along with a host of paid, mostly poor, mostly black, line-sitters--he watched a variety of individuals "arrive in a fleet of eco-friendly Priuses, alternately sipping their mocha pepperaminto skim milk lattes and chatting excitedly about egalitarianism’s next frontier," and not only taking the spaces reserved by the line-sitters but also swelling their numbers with line-cutting friends. 

There is not necessarily any hypocrisy in this, as such. Lots of well-credentialed liberals believe in a world in which all people, no matter their race, religion, gender, or sexual orientation, can amass as much wealth as possible, work every connection they have, and take full advantage, on their own behalf and especially on behalf of their children, of massive inequality of opportunity. It's just a lousy ethic, that's all. But Dale does a lovely job of describing it, and his post is well worth reading.   

Posted by Paul Horwitz on April 1, 2013 at 11:37 AM in Paul Horwitz | Permalink | Comments (25) | TrackBack

Thursday, March 14, 2013

A Good Day to Read Anthony Gill

Given Rick's post elsewhere, I feel a little nervous about saying I'm delighted, without reading too much into it, that the new Pope has taken the name Francis.

My work on law and religion, including religious institutionalism, has tended to take one or both of two approaches: an internal perspective that tries to appreciate the views and obligations of religious individuals and institutions from within, and a more external, institutional perspective in which things like history and economics provide a useful tool with which to analyze the behavior of religious institutions as institutional actors. (I have a forthcoming paper, still in progress, that applies that approach to the "freedom of the church" debate.) I tend to think both the internal and the external approaches are necessary and valuable, and that it is possible to take an external perspective without being impious or harsh.

Here, I just want to recommend a particular author--Anthony Gill--for those who might be interested in an externalist perspective on the selection of a Pope from Latin America. Gill is the author of two excellent books. The first, Rendering unto Caesar: The Catholic Church and the State in Latin America, uses an economic, historical, and rational-choice approach to analyze the varying relations between the Church and the state in Latin America, offering a theory about why resistance to the state became popular as a Church approach in some Latin American states and not in others. (The answer, in short: the degree and nature of competition from evangelical Protestantism in different Latin American states.) The second, The Political Origins of Religious Liberty, takes the same approach and applies it to a broader canvas; it has a chapter on Latin America.

Both are well worth reading--especially but not exclusively today. I'm sure there will be a lot of talk about this decision as reflecting the importance and growth of Catholicism in Latin America and in the southern hemisphere. What Gill adds to that picture is 1) the importance in those states of competition from other religious sects that have also made major inroads in those areas, and occasioned great concern in those places from once-dominant sects; and 2) how that fuller picture has affected church-state relations in different ways at different times, and the ways in which the dominant church has taken very different approaches to church-state/religious liberty questions in different places, even at the same time, rather than taking a universalist approach.

None of this, of course, is meant to offer any reading of tea leaves, or to deny the value of an internal as well as an external perspective. But I've found Gill's work useful and interesting and it may be of particular interest to others today.    


Posted by Paul Horwitz on March 14, 2013 at 08:48 AM in Paul Horwitz | Permalink | Comments (3) | TrackBack

Tuesday, March 12, 2013


I apologize for posting on this matter one more time. But one of the problems with these kinds of Internet teapost-tempests is that they get very ugly, everyone decides to put the matter behind them, and then everyone just repeats the same behavior the next time around. Sometimes it's both necessary and right to make a moral judgment about particular affairs before putting them behind you. So let me offer here, rather than on The Faculty Lounge, which tends to eat long comments, a response to Paul Campos, who has offered a kind of response to Dan Filler et al.'s statement from yesterday on his blog, and commendably has offered a link to it at The Faculty Lounge. I encourage those who are exhausted by this issue to skip the post. But some things demand to be judged, on the record.

Campos’s comment strikes me as totally pusillanimous. Consider everything he has been saying in the last week, and how he has said it. And note that it was all based on what he now calls “triangulation”—which is to say, inference and conjecture, which are notoriously subject to error (along with, he claims, other information that he is not revealing in order to maintain confidentiality, although as far as I can tell from today’s post he doesn’t think anyone else is entitled to be believed in such circumstances). In the course of a few days, he went from saying, “It appears the admins at The Faculty Lounge may have some explaining to do”; to saying that “the obvious suspect” for having passed along information was someone at TFL and “the obvious candidate from among the site’s bloggers is Dan Filler”; to a post on March 7 repeatedly singling out Filler as his prime suspect; to a post on March 8 saying that the conduct he was complaining of “was apparently made possible by his co-blogger Dan Filler sharing confidential email information from comments at Filler’s other blog, The Faculty Lounge”; to a statement in the same post, now fully accusatory and without qualification, saying, “let’s not forget the role of his errand boy Dan Filler in all this, who can’t even manage to get to denial, but is apparently too cowardly to confess to his role in this squalid business”; to a conclusion in the same post that Filler’s failure to issue a clear denial of responsibility removed “any” doubt for Campos that Filler was guilty. Note the hot and temperamental rhetoric; the mounting number of accusations against one person; and the increasing move from speculation to what he pronounces is utter certainty.  

Following yesterday's statement here, Campos's post today, to which he links and which you can judge for yourself, is notably lacking in that kind of rhetoric. Instead, it adopts--in what, as far as I can tell from reading Campos's blog for more than a year, is a fairly typical rhetorical move whenever he is called into question--a sober-sided, more-in-sorrow-than-in-anger, let's-put-this-late-unpleasantness-behind-us tone. He describes himself as having, in his earlier posts, "determined that Leiter’s co-blogger Dan Filler was an obvious candidate for having given Leiter access to the critics’ email addresses, and in at least one case an IP address as well." Note the difference between that more circumspect description and his actual language in repeated posts, which ended in a pronouncement that he had no doubt that Filler, who was not his own man but someone's "errand boy," was the guilty party. His post today ends by suggesting that no other explanation is possible other than that someone at TFL blog acted improperly, although he has hardly demonstrated that; but he also now identifies a range of possibilities and culprits other than Professor Filler. Apparently his doubt is back. How nice to see it again. 

 Admittedly, I would never write accusatory posts like that in the first place, and certainly not a series of them, and certainly not a series that ends by announcing my utter confidence that I am right in accusing a particular individual--and all of this on the basis of "triangulation," no less. If I did, however, and the accused then issued a denial, I would consider myself honor-bound toreply in language that was just as loud and clear as my accusations. I suppose if I thought the person was lying, I might say so, and why I thought so. But if I now admitted that there were other possibilities, I would apologize straightfowardly, even if I was not sure I was wrong, both because I might be wrong and because my earlier statements had said I was certain I was right.. I wouldn’t suddenly move from repeated, hotly voiced accusations to cool, lawyerly, passive-verbed tones; that would strike me as just another way of being less than straightforward, if not outright dishonest and dishonorable. And I sure as hell wouldn’t talk soberly about wanting to put “this sad and disturbing matter” behind me until I had first done the right thing, in clear and unmistakeable language. Anything else would strike me as cheap and cowardly.

Lots of Campos’s fans like to accuse law professors of writing about subjects they know nothing about—and not without reason! In that sense, I find it telling that Campos is the author of an article titled “Shame.”   


Posted by Paul Horwitz on March 12, 2013 at 02:46 PM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Saturday, March 09, 2013

On Anonymity, Professorial and Otherwise

A number of things about this latest online discussion of anonymity and its discontents strike me as somewhere between silly and disturbing. Actually, almost everything about it does, but one thing in particular is bothering me at the moment. It's the failure to actually discuss meaningfully the uses and abuses of anonymity. Without singling out anyone--and how could I, since most of the people talking about it online are doing so anonymously?--a comment on Howard's post below has set me off. The comment begins: "I would highly counsel anonymity in these posts. We are essentially mulling over legal ideas, and our speculations may or may not be correct given that we’re giving a first impression; the equivalent of going into each other’s office and talking it over rather than putting in the research, speaking to a client, and then providing a well-founded (ie. sufficient under FRCP Rule 11) advice." It is signed "anonprof." Of course, I have no idea whether the commenter is a professor at all, let alone a law professor. Assuming he or she is, however, I find it disturbing and worthy of comment, with all appropriate apologies to that individual.

The most common justification given for anonymity online, at least on the law blogs as of late, has been fear of professional repercussions for young lawyers who worry that they will be fired for speaking their mind. I can imagine cases, maybe even many cases, in which that is a valid concern. It does not, of course, say anything about how one speaks one's mind. I would have thought that a decent person who decides to speak anonymously would be more careful about what he or she says, and how he or she says it, because a decent person who refuses to put his or her good name behind a statement ought to think that circumspection is a reasonable price to pay for immunity. It's difficult to judge degrees of behavior, but obviously plenty of people who speak anonymously feel emboldened instead. Equally obviously, some people who speak anonymously behave like vulgar, uncivil asses. I assume some of them are just like that, and talk the same way even when they're using their own names. But surely some of them have decided that being anonymous frees them to be complete asses, and take full advantage of that fact. That is, I think, literally contemptible. If you can't manage to have manners, you should have a name; if you can't manage to have a name, you could at least have some manners. If you don't have either, you ought to get a life.

Leaving those people aside, surely not all of those who are civil (albeit forceful) but anonymous are justified in their anonymity by a genuine concern for disastrous consequences if they attach their name to what they write. Fear of consequences is a valid justification for anonymity, but it isn't always a valid concern. There's a difference between worrying about being fired for a careless statement, especially if one lacks resources, and worrying about slower advancement, fewer promotions, and so on. I don't think the latter concern is unworthy of anonymity, but it does suggest a certain lack of character--and all the more so if that person then uses anonymity in an especially uncivil way. This is strictly hypothetical, but if some fifth-year associate at a big law firm somewhere decided that the wise thing to do would be to remain anomymous so he or she could post "fuck off" somewhere online without worrying about losing a promotion, I wouldn't consider that an especially legitimate reason for anonymity. Could any serious person conclude otherwise? 

With academics, including law professors, the reasons for anonymity, at least in one's own professional realm, are even more limited. They are, in fact, pretty close to non-existent. I could imagine a whistle-blowing scenario in which one writes about one's own colleagues for important reasons and wants to remain anonymous. I say imagine, because I can't think of any examples of anyone having actually done so. Most of the time, though, law professors who comment anonymously aren't doing anything like whistle-blowing. They're professing some view about the law. And that, of course, is their job. For tenured professors, there is no good reason to seek anonymity in order to profess about the law, legal education, or the legal academy. As far as I'm concerned, things are generally no different for untenured professors. For one thing, as I've written here before, if you can't muster up the courage to act like you deserve academic freedom before you get tenure, then it's not clear to me that you deserve it at all. For another, if you're not sure the view you're expressing is meritorious, you don't actually have to say anything at all! And if you are still moved to speak, nothing prevents you from putting your opinion in a careful and cabined way--which, as a conscientious academic, you should be doing anyway.

I hate to sound all "kids today" about it. But I started blogging some eight years ago, pre-tenure, well after many other law professors but still relatively early in the law-blogging period. Plenty of law professors back then thought about blogging and decided they didn't want to do so, either because they might suffer blowback at their own institution or in terms of lateral hiring, or because they didn't think they could spend the amount of time they'd require to feel good about having their own words attached to their own name online day after day, or both. I completely respect those decisions, and who's to say they weren't in fact much wiser? To the extent that some of us did choose to take advantage of the medium, no one was handing out any guarantees that there would be no consequences. But that's true of everything academics choose to write or not write, regardless of the medium. Absent extraordinary circumstances, I just don't think anonymity is a valid choice for law professors who want to say things about their own profession online, in comments or elsewhere. It certainly doesn't suggest even the minimal degree of courage that I think every academic, if not every lawyer--or even every person--in a First World country ought to possess. 




Posted by Paul Horwitz on March 9, 2013 at 10:17 PM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Friday, March 08, 2013

Sarat Symposia--Past, Present, and Future

Today at the University of Alabama, we were pleased to have our friend Austin Sarat serving as host for a symposium titled "Civil Rights in the American Story." The lineup was terrific, and although I couldn't be there for every talk, the ones I saw were excellent.

Austin has hosted a variety of excellent symposia at Alabama and I've been delighted to participate in several of them. Here, by way of weekend reading, is an abstract for a paper I gave in response to Martin Redish at a symposium on speech and silence in American law. The paper is titled "Anonymity, Signaling, and Silence as Speech." In it, I argue, inter alia, that Internet anonymity takes a variety of forms, including genuine anonymity and consistent pseudonymity, and that rather than viewing it as a form of silence, anonymity can be understood "as an attributional decision that sends important signals about the reliability of the speech and the speaker." I would do some things differently if I were writing the paper today, but I still think the signaling point is worthwhile, and in any event I was just grateful to share a stage with Prof. Redish. I'm also very much looking forward to participating in a symposium Austin will be presenting at the Law School this fall on civility. It will be a great spur to think about those issues.  


Posted by Paul Horwitz on March 8, 2013 at 09:31 PM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Friday, March 01, 2013

Weekend Reading: Defending (Religious) Institutionalism

I've posted a short piece on SSRN, titled "Defending (Religious) Institutionalism." You can find it here. It builds on issues I've discussed in First Amendment Institutions (which, may I say, makes a splendid World Kidney Day gift). The issues raised here turn out to be especially timely in light of recent litigation over the ministerial exception, the contraceptive mandate, and similar issues. I should note that this piece is a reply to Richard Schragger and Micah Schwartzman's important article, Against Religious Institutionalism, which is coming out later this year in the Virginia Law Review; my reply will also appear there. 

The abstract follows. Emailed comments are most welcome. 

This piece is a reply to Richard Schragger and Micah Schwartzman's forthcoming article, Against Religious Institutionalism. The issue of the institutional status and rights of religious entities is an important and hot topic, given recent cases like Hosanna-Tabor, pending controversies over the application of the contraceptive mandate, and a spate of recent scholarship arguing for church autonomy and/or the revival of the ancient concept of "freedom of the church." Schragger and Schwartzman raise a number of tough questions about institutionalism, both in general and as it applies to churches. This reply offers a partial but forceful defense of institutionalism, in the church context and elsewhere.

Schragger and Schwartzman make some excellent points in their important article. In particular, they ask difficult questions about whether group rights stand on their own or are purely derived from individual rights, and sound an appropriate, if overly stringent, note of caution about "sovereignty talk" with respect to religious institutions. Nevertheless, they have not made out a conclusive case against (religious) institutionalism. In this reply, I offer a description of the institutionalist approach I have advocated for churches and other entities in my recent book, First Amendment Institutions, and argue that many of Schragger and Schwartzman's critiques of religious institutionalism don't apply to it. Schragger and Schwartzman argue that religious institutionalism is unnecessary because general principles of conscience and associational rights will be sufficient to protect conscience-based associations, including churches. Because they remain noncommittal about the actual scope of conscience and associational rights, however, they have not yet shown that this is true. Finally, I argue that Schragger and Schwartzman do not give an adequate sense of why religious institutionalists, and group-oriented pluralists in general, find the institutional turn attractive: why these thinkers are convinced of the importance of non-state institutions and concerned about the "pulverizing, macadamizing tendency" of the state toward those institutions. Those concerns remain very much alive, and as long as they do pluralism and institutionalism ought to have a place in our thinking.



Posted by Paul Horwitz on March 1, 2013 at 04:03 PM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Thursday, February 28, 2013

The Law School Crisis Continues; ITLSS Does Not

Paul Campos has announced that "the time has come" for him "to move on" from his Inside the Law School Scam blog. I wanted to announce that: whether one liked his blog or not, it was a big voice on law school crisis issues, and ignoring its demise would seem to me the equivalent of trying to sweep it under the rug. I didn't intend to say much more than that. But perhaps a couple more words are necessary in light of rather harsh comments in a blog post by Brian Leiter and in the comments on a post on TaxProf.

Early on, I was a critic of various aspects of Campos's blog, although not of the existence of the blog itself or of the existence of a blog devoted to problems with law schools. Some of my early posts speculated about Campos's motives. I think that was a mistake; I've never met him, after all. My later position was simpler and I hope fairer; there was much I found distasteful about the blog, but I had promised to read it and I did, every post, and I occasionally linked to discussions I found useful or important, basically skipping questions of motives, style, etc. There were one or two exceptions along the way where I thought he had said something especially silly, but quite few. While it's fine to discount if one distrusts a source, one should take information about an important topic where one can find it, and appreciate it. I posted less from the blog as time went by, largely because ITLSS became highly repetitive--something I don't view as a big reason for criticism; it's tough to write that much that often on a single topic--and often provided more commentary (of variable quality) than facts, and also because the quality of dialogue one gets on these topics from commenters tends to be mixed.

But, if I was not the fan of the blog that others were, I think it still had definite value. Campos seems to me to be essentially a journalist moonlighting as a law professor, and perhaps without some of the professional norms I would expect from a full-time journalist. But he offered a fair amount of good journalism along the way: a lot of digging up and examination of data that I hadn't seen elsewhere and that, good or bad interpretations of it aside, provided a useful and often distressing basis for analysis. That's a genuine contribution, for which I'm grateful; certainly, although I have written about these issues for quite some time, I didn't do the digging he did.

The "style," although I mean more than just writing style, was another matter. Many of his fans loved his writing style. I found it repetitive (how many times do you need to use the same quote from Upton Sinclair before it gets old?), self-indulgent, evasive and squirrelly, preening, and finally tedious. His analysis of the useful data he provided was often correct, in my view. But he seemed rarely content to make a basic point that would have been sufficiently devastating in itself, if the opportunity presented itself to make a far more tendentious de-haut-en-bas observation about some "big truth" that everyone but himself lacked the courage and acuity to recognize. A vivid style is one element of good writing; but so is self-restraint. Campos was much stronger on the former than the latter. Now, your mileage may vary. Clearly many people loved his writing, although of course I think my criticisms of that writing are entirely on point.

But I do think there was a relationship between style and substance here. As I said above and am happy to repeat, in my view his best contributions were those posts that provided lots of data, and at various times there were many of those posts. The more untethered his posts were from the data, however, the weaker they were, the more questionable or inconsistent or hard to pin down in their fundamental arguments. Both before and after he dropped the anonymity pose, he traded on his ostensible authority as an "insider" in various ways, by suggesting that he was sharing an insider's knowledge, or that the fact of his own quite human and understandable complicity in the system gave what he had to say extra authenticity. In the final analysis, though, what he provided was public knowledge, not private knowledge--in short, journalism. He simultaneously danced up to and shied away from saying anything meaningful about his own situation, although he might have offered some interesting thoughts about that. In doing so, he would say that the real issue was the system, not any one person in it. But that is really a mixed message: an effort to trumpet one's authority and insider status without actually drawing on it or discussing it honestly. That's what I mean by trading on authority, and it was a constant in his work; it is certainly a glaring feature of his final post. (If that's a flaw, I should note, it's not his alone; I've said much the same thing about amicus briefs by law professors, and no doubt it's often true of law professors' blog posts.)

In short, there were plenty of reasons to find aspects of his blog objectionable, and his suggestion in his final post that everyone who objected to what he wrote did so either because they were angry at his intrepid truth-telling or because of personal animus seems to me badly exaggerated and self-serving. The latter seems especially silly because, judged by his writing, Campos certainly has no objection to responding to others in a personal rather than a substantive way and drawing broad conclusions about the motives of others. (None of this, however, excuses some of the absurd defenses of the present law school regime I have read elsewhere in the last few months, or some of the dismissals-by-ad-hominem of accurate points that Campos made along the way.) But it should be said that his blog was never really aimed at law professors as a readership. Nor was there any obligation for him to do that. It was aimed at  (understandably) dismayed, dispirited, disgruntled law students and graduates, for the most part. The Internet being what it is, it would be foolish to draw any conclusions about how representative of broader views or intensity of emotion his readership was. But suffice it to say he did find and indulge a genuine readership with genuine concerns and anger. That's an important fact, I think.

Let me repeat something I argued very early in my engagement with both the Campos blog and the question of law school crisis and reform in general. The arguments that much needs to be fixed about law schools, in terms of numbers of students and schools, tuition and debt, curriculum, hiring, and so on, seems to me unassailable. The lousy and perhaps permanently changing legal economy adds a powerful element to that; one of the best Campos posts, in my view, was one about halfway through his run emphasizing just how central the lack of jobs is to the current crisis. But reform would still be necessary regardless of current conditions. I wrote early on that the danger of a "crisis" footing is that it may lead us to be even more complacent if the economy improves and fewer students are moved to complain about outcomes. But the changes needed in law schools are not just about responding to immediate stimuli; they're about doing the right thing, for students, clients, and simply for its own sake and because it ought to be part of one's ongoing academic duty. That Campos's blog is ending doesn't mean the issues aren't ongoing. Even if its discontinuation ends up turning down the temperature a little, which I'm not sure it will, that does not change the obligation to deal with these issues. And, again, for all of what I found its evident flaws, I would say his blog, at its best, contributed importantly to the discussion along the way. 




Posted by Paul Horwitz on February 28, 2013 at 09:13 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Sunday, February 24, 2013

If the Shoe Fits...

I am generally no fan of accusation by easy labeling, which is often misleading or inaccurate, rarely helpful or informative, and generally not conducive to clear thought. My pet example is Project Censored, whose annual top ten list of "censored" stories rarely involves actual censorship. Whatever merit there is in the claim that these stories deserved more coverage than they got is, for me, swallowed up by the cheap, attention-seeking misuse of the charged word "censorship."

All this is by way of talking about Senator Ted Cruz, who has been accused for the past week of engaging in McCarthyism, merely because he engaged in half-baked accusations and cheap insinuations. In the past couple of days, the New Yorker has dug up another example: in this case, a 2010 speech in which Cruz

"went on to assert that Obama, who attended Harvard Law School four years ahead of him, 'would have made a perfect president of Harvard Law School.' The reason, said Cruz, was that, 'There were fewer declared Republicans in the faculty when we were there than Communists! There was one Republican. But there were twelve who would say they were Marxists who believed in the Communists overthrowing the United States government.'"

This was a laughable assertion, but people say silly things all the time. So I am duly impressed that a spokesperson for Cruz has doubled down, saying to The Blaze in response to the New Yorker story:

“'It’s curious that the New Yorker would dredge up a three-year-old speech and call it "news,"'. . . . Regardless, Senator Cruz’s substantive point was absolutely correct: in the mid-1990s, the Harvard Law School faculty included numerous self-described proponents of ‘critical legal studies’ — a school of thought explicitly derived from Marxism – and they far outnumbered Republicans.”

I am impressed by this response on any number of levels, not least for constituting a dredger complaining about the dredging activities of others. Mostly, though, I am impressed by the claim that Cruz's earlier suggestion that a dozen HLS faculty members believed in the Communist overthrow of the United States government is "substantively correct" because the faculty included a number of adherents of critical legal studies--the most prominent among them being former CIA employee Duncan Kennedy.

I hope it's not too Tushnetian to say so, but I worry about a United States Senator, bright, well-educated, and often treated as the great non-white hope of the Republican Party, who can't tell his Reds from his red-diaper babies. I doubt that Cruz cares much whether he's accused of McCarthyism. If he does, though, he could probably avoid it more often in the future if he acts less like, well, McCarthy.

Read more:

Posted by Paul Horwitz on February 24, 2013 at 12:01 AM in Paul Horwitz | Permalink | Comments (5) | TrackBack

Sunday, February 17, 2013

Disconnects in the Law Review "Affirmative Action" Discussion

All the notional ink spilled in the past week on the question of whether law reviews ought to self-consciously select articles with a thumb on the scales of particular identity traits has certainly been interesting. The discussions have been interesting, and so has the amount of energy spent on it. I have little to add on the main subject, largely because I am still undecided about precisely how small the stakes are.

But I would like to make one observation. It seems to me that, in a sense, the arguments in favor of allowing law reviews to engage in this kind of activity actually end up with two very different implications, and not especially welcome ones for those making these arguments. On one reading, those arguments end up suggesting that there are good reasons why public law schools' law reviews cannot legally do so. On another, perhaps more puckish reading, the arguments in favor of "affirmative action" by law reviews amount to arguments against the constitutionality of affirmative action altogether, at least under current doctrine. Of course some generalizations follow. I think they're supportable ones, but they're not meant as definitive, so much as they're meant to make us ask what this smaller debate says about the larger issue.

Several things strike me as common features in contemporary arguments for the constitutionality of race-conscious admissions in the university context. 1) Largely because the Supreme Court requires it, it is routinely argued that such admissions programs involve a careful, holistic, nuanced, all-things-considered consideration that takes full account of the merits of each applicant and takes more than just race into account for diversity purposes. 2) For a variety of reasons, offices of affirmative action, diversity management, etc., both inside and outside of universities, routinely argue that their job is a complex one that requires a good deal of expertise and experience. 3) For both reasons, as well as for reasons relating to academic freedom, defenders of race-conscious university admissions argue that both the need for and the execution of such programs requires expert judgments of the kind that courts are ill-suited to make, and that courts therefore ought to afford universities substantial deference in this area.

Now contrast that with some of the arguments in the past week suggesting that law reviews, presumably including public university law reviews, are entitled to and perhaps ought to engage in article selection in part based on particular identity traits of the authors, including race. The arguments have been interesting and sometimes persuasive. But they still involve a brute bottom-line conclusion: that sorting according to identity trait (including race) can be undertaken by a bunch of 24-year-olds, who have at most a year's experience as journal editors and who, most people seem to agree, are not even qualified to judge the merits, such as they are, of the articles they are reading.

To the extent that it is true that journal editors are young and inexperienced--not to mention busy with a full load of coursework--I find it hard to imagine that anything they do would fall within the kinds of parameters that have led courts to defer to and permit race-conscious actions by other sectors of public universities. (Of course, it may be that the law reviews' actions fall outside the legal scope of any 14th Amendment prohibitions, if only because the law should not concern itself with trifles and law reviews are just that.)

Understandably, I haven't seen any suggestion, from defenders of law review editors engaging in this kind of authorial sorting, that those editors are simply unqualified to engage in what everyone has been calling "affirmative action." They seem to assume they are competent to do so. That leads me to my second, somewhat more provocative question. To the extent that they, or anyone else, think that law review editors are qualified to do so, and draw on broader arguments about race-conscious university admissions in talking about what law reviews might be doing or ought to do, shouldn't that lead us to doubt all the claims concerning complexity, expertise, holistic consideration, and so on that are made on behalf of public universities? Shouldn't it lead us to wonder whether any deference at all is warranted on the part of courts toward those universities? And if universities didn't receive that kind of deference, isn't it much more likely that race-conscious policies by universities would be struck down altogether? In short, if, for God knows what reason, the Supreme Court justices are sitting in Washington, taking a break from working on their opinions in the Fisher case to read the blog arguments in favor of affirmative action in law review article selection, shouldn't they conclude that Grutter v. Bollinger ought to be overruled?

Just a thought.

Posted by Paul Horwitz on February 17, 2013 at 11:57 PM in Paul Horwitz | Permalink | Comments (2) | TrackBack

Friday, February 15, 2013

Blocher on "First Amendment Institutions"

The New England Law Review has a review of my recent book, First Amendment Institutions (available for Kindle readers! Makes a lovely Purim gift!), written by Duke's Joseph Blocher. Joe has some very generous things to say about the book and, more important, some good tough but sympathetic questions and criticisms concerning the institutional First Amendment project. It's an excellent read. 

Posted by Paul Horwitz on February 15, 2013 at 02:37 PM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Thursday, February 14, 2013

LaPierre on Mad Max's America

This column by the NRA's Wayne LaPierre is well worth reading, even though it appears in the Daily Caller, for at least two reasons:

1) Proof, just in case it was needed, that the paranoid style is alive and well in American politics, and of the continuing deterioration of rhetoric on the Internet.

2) The total absence of mention of the NRA's post-Newtown proposal that Congress "act immediately, to appropriate whatever is necessary to put armed police officers in every school — and to do it now, to make sure that blanket of safety is in place when our children return to school in January." At the time, LaPierre described that proposal as urgent and necessary. Today, it doesn't even make the list of priorities, the first two of which are litigating and making sure the NRA receives more money. Incidentally, I wrote a while back that "[i]f the organization does not actually make a concerted and resource-heavy effort to see legislation proposed, advocated, and scored, then, at that point, I think it would be more than fair for even his supporters to conclude not only that the whole thing was political theater, but that--for professional purposes!--LaPierre does not really care all that much about the safety, well-being, or death of children." 

Posted by Paul Horwitz on February 14, 2013 at 08:35 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Wednesday, February 06, 2013

Conversation on First Amendment Institutions

I am extremely grateful to Marc DeGirolami, who conducted both a print and a telephone conversation with me about my new book, First Amendment Institutions, which incidentally makes a great Doppelganger Week gift. 9780674055414 Marc has posted our print conversation at the Center for Law and Religion Forum; a podcast of our phone conversation should be available soon through the Federalist Society, which is initiating a series of podcasts on new books. Marc's own book, The Tragedy of Religious Freedom, will be out later this spring. 

Posted by Paul Horwitz on February 6, 2013 at 10:16 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Tuesday, January 22, 2013

On Hatred--and Radical Love

I haven't been blogging much lately, for the usual reasons--ie., despair at the whole enterprise, with a smidgeon of being too busy with other things. (Happily, we've got you covered here with our series on Erie.) But I am moved to write by a post by Eugene Volokh yesterday (Martin Luther King Day, not incidentally) in which he writes to 

state for the record that I think it’s eminently fitting for us — and for anyone else — to feel and express hatred for those who are evil, and in particular to think that they eminently merited death and indeed would have merited an earlier one. Hatred is the normal and proper reaction to those who murder, those who enslave, and the like, both on Martin Luther King Day and on other days. 

You can read my comments on that post for the reasons why I found the post distressing, a feeling that has not abated with the passage of a day. So I thought, by way of antidote, that I'd post a link to a moving piece I read yesterday, a review in The New Yorker of a couple of recent biographies of Francis of Assisi. He does not provide an easy model for any of us to emulate, and most of us (of whatever faith) don't, really. But I can't help but find his example a more inspiring one. Enjoy.   

Posted by Paul Horwitz on January 22, 2013 at 04:26 PM in Paul Horwitz | Permalink | Comments (2) | TrackBack