PrawfsBlawg

Why so much Hart?

Thanks to Dan and everyone else at Prawfsblog for letting me guestblog this month. I’ve devoted most of my time to talking about what I believe are some of the peculiarities and prejudices of philosophy of law in the United States. My final post is not about something I think deserves more attention here, but something that deserves less, namely H.L.A. Hart (or, more accurately, his book The Concept of Law).

The Concept of Law was drawn from lectures Hart delivered to undergraduates, and the book was written as a general introduction with them in mind. It has no footnotes – although there are notes at the end of the book that engage in a more direct way with Hart’s predecessors. (Often these notes are the most illuminating part of the book.)

I do not think that The Concept of Law deserves the attention that it currently receives from Anglophone philosophers of law. The book is frustratingly unclear. After almost fifty years there are still serious disputes about what Hart meant, for example, by the distinction between the internal and external points of view or the distinction between having an obligation and merely being obliged. People disagree about what he meant when he described his book as an essay in “descriptive sociology.” I, for one, find the book to be very difficult to teach because of its lack of clarity.

I’m not saying that philosophers of law should not write about what Hart actually meant. There is an important place in the field for the history of the philosophy of law. But the book currently is more than part of the history of the discipline.  Many theories of law are presented as, or in the context of, interpretations of Hart. I don’t think it is a good idea for work in the philosophy of law to have such an exegetical focus.

There are some very good philosophers working in the field today and I could probably come up with up with a list of fifty of them who could craft a clearer account of the essential features of law and legal systems than what can be found in The Concept of Law. True, in many cases the accounts offered would be influenced by or have similarities to what is said in Hart’s book. But they would be lacking the book’s frustrating opacity.

Now I’ve gotten used to my posts generating significant disagreement, and this one probably will as well. But to make it clear what I am not saying:

1) I’m not saying that H.L.A. Hart was not a good philosopher.
2) I’m not saying that The Concept of Law was not a seminal event in the history of the philosophy of law.
3) I’m not saying that Hart did not put some philosophical problems to rest. He offers, for example, the definitive response to Austin’s belief that there must be a legally unlimited sovereign in every legal system.
4) I’m not saying that there is not an answer to the question of what Hart meant. For a plausible account of the internal point of view, see, for example, this article by Scott Shapiro.
5) I’m not saying that, correctly interpreted, The Concept of Law does not offer a correct theory of law. (I don’t think it does, but that is not the source of my current criticism – it is the difficulty determining what the correct interpretation of the book is.)
6) I’m not including in my criticism the posthumously published postscript to the book, which, although unfinished, does not suffer from the lack of clarity of the original book.

Addendum: Brian Leiter claims to find the above remarks “dumbfounding.” But I've made the same point a number of times to other philosophers of law in private conversation and the response has usually been agreement rather than shock.

And no wonder. If you look at publications in the philosophy of law in this country, the percentage that discusses The Concept of Law is extraordinarily high. In no other area of philosophy are current practitioners so concerned with fifty-year old works, much less one fifty-year old work, much less one fifty-year old work that was intended as an introduction to the field for undergraduates. Usually in philosophy people take what is useful – and there is much that is useful in The Concept of Law – and move on. (Indeed, since I thought of Leiter as an example of a philosopher who had moved on, I assumed – naively – that he would be sympathetic to my post.)

Part of the reason for this large current literature on The Concept of Law is that the book leaves so many crucial questions unanswered. I mentioned in my original post the question of the internal/external points of view and let me concentrate on that here. (What I say below should not be news to anyone familiar with the literature on Hart.)

Often Hart makes it sound as if the problem with theories of law that take the external point of view is that they ignore the attitudes of participants in the legal system – as if these philosophers of law adopted some form of strict behaviorism. But Austin did not ignore participants’ attitudes – he just thought that these attitudes could be primarily fear of sanctions.

But if Hart meant by the internal point of view a special form of acceptance of the law (one different from obedience out of fear of sanctions), what is this form of acceptance? No one can be blamed for thinking – as some people have – that Hart meant moral acceptance. There is evidence in favor of this interpretation, although there is contrary evidence as well.

But let’s assume Hart meant something other than moral acceptance. At one point he says the relevant attitude could include “long-term self-interest” (which Shapiro helpfully says would encompass a judge who enforced the law out of a simple desire to get a paycheck). But then it is unclear why the person who obeys only from fear of sanctions (which is also a self-interested motivation) is not adopting the internal point of view.

It is true that Hart thinks that the internal point of view would express itself in criticism of deviators. But it is not clear why those who obey solely out of long-term self-interest would criticize deviators. If I am applying the law simply to get a paycheck, what is my reason for criticizing a colleague who doesn't enforce the law because, being independently wealthy, he doesn't need a paycheck? Of course, I may criticize deviators because it is a condition for getting my paycheck, but someone also might criticize deviators to avoid sanctions.

The point is not whether these problems might be solved and some satisfactory account of the internal point of view arrived at. The point is that Hart manifestly failed to provide us with a clear statement of what the internal point of view is, even though it is absolutely crucial to his argument. If he had provided us with such a statement, we wouldn't be still talking about this issue fifty years later.

Another problem is why this attitude of acceptance is a necessary condition for the existence of a legal system. Why, exactly, is a system in which most people, including officials, act in conformity with the law only because of a fear of sanctions not a legal system?? (The question is a conceptual one – it does not matter that such a system would be unstable.) I frankly see no reason why it is not, but, once again, whether Hart's position can be defended is not the issue. The point is that he fails to defend it.

I don’t blame Hart for these failures. The book was written as a general introduction to the philosophy of law for undergraduates. It’s amazing that it had the amount of ground-breaking material in it that it did.

But given that most of what I read by current philosophers of law is much clearer than The Concept of Law, it is natural to ask the question (which was the question of my original post): Why are philosophers of law - as opposed to historians of the philosophy of law - still so focused on The Concept of Law? Why haven’t we moved on?

Indeed (and here I'm self-plagiarizing a comment I made in the thread), there is a real irony to the reception of Hart. He wanted to professionalize the philosophy of law - to take it away from discussion about what great men of the past thought. In some respects of course he did succeed in professionalizing the discipline. The philosophy of law looks very different now, and in the English-speaking countries Hart is really to thank for this. But in one respect he failed. He became one of those great men.

We would do greater justice to Hart's legacy by talking about him less.

Interpretive Pluralism

Well, we seem to be at it again.  Originalism just never gets tiring (for bloggers, anyway).  Here's the latest string:  Leiter, Barnett, Balkin, and Solum.  Just one thought from me for the day.  It may be that Balkin is right that theorists are not actually trying to develop a theory of what judges do -- but it does seem somewhat important if originalism has no claim to special authority from the perspective of practice.  This is why Solum wants more from Leiter:

In particular, Leiter would need to show that there is a well-established judicial practice of reading the Constitution in ways that are self-consciously inconsistent with the original public meaning (or the conventional semantic meaning) of the text.

But I find this challenge from Solum somewhat perplexing -- if only because the Court routinely disavows original meaning; judges do this self-consciously all the time.  I have been especially sensitive to this in teaching Con Law I this term.  From interpreting the commerce clause (in its positive and "dormant" aspects) to the treaty power, and from the 10th Amendment to standing doctrine, original public meaning is routinely ignored -- and self-consciously so.  In some of these cases, Solum might reply that these are mere instances of "construction" rather than "interpretation" proper.  Yet, I would think that when construction so clearly disavows or feels free to ignore original public meaning as a relevant factor in picking a rule of decision, this would have to count for Leiter and against Solum.

Of course, I don't think practice is actually decisive on the question of whether anyone should be an originalist.  My little contribution to this field is here.

On Scholarly Wisdom (Or Dodginess)

A review in this week's NYT Book Review of Joshua Henkin's * new book, Matrimony, begins like this:

The early pages of "Matrimony," Joshua Henkin's second novel, call to mind an academic trick employed by Carter Heinz, one of the main characters: "He had started to write what he called beyond-the-scope-of-this-paper papers, in which he would begin by listing all of the things he wasn't going to write about."

Sounds familar.  A search on Westlaw reveals in excess of 10,000 instances of "beyond-the-scope-of-this-[article, essay, comment, etc.]."**  How often is this an act of simple scholarly care and modesty -- and how often is beyond-the-scopiness used as a corner of the rug under which to sweep killer questions that are, in fact, very much within the paper's proper scope?  That question, dear readers, is, um, beyond the. . . well, you know the rest.

* Bonus law school relevance point: If I'm not mistaken, Joshua Henkin is the son of my own con law teacher, the wonderful Louis Henkin.

** Including at least 13 uses of the phrase by Prawfsblawg's authors. 

SEAL & The Developing Field of Evolutionary Biology and the Law

I've just returned from the 9th Annual SEAL (Society for the Evolutionary Analysis in Law) Conference, and, given that I recently posted on the possible relevance of evolutionary biology to the law here, I thought I would provide a brief update on some of my observations at this conference.

First, an update on Brian Leiter and Michael Weisberg's piece "Why Evolutionary Biology is (thus far) Irrelevant to Law."  In  my prior post, I argued that the criticisms found in this piece are better understood as giving voice to internal standards of rigor that should guide the processes of knowledge formation within this emerging field, rather than as grounds for dismissing the field altogether.  I was thus very happy to see that almost none of the participants made the mistakes that Leiter and Weisberg raised as potential pitfalls for this kind of work.  (When excesses did occur, they were typically corrected in the process of question and answer.)  Nor did any of the participants draw on evolutionary biology to try to establish the inflexibility of any particular behaviors, thus suggesting (to me, at least) that most of the participants in this subfield are currently aiming to produce work that escapes the Leiter/Weisberg challenge.  I don't know how far back this goes, and I do not know whether to give Leiter/Weisberg the credit for this, but it does make me very happy to see that profitable lines of inquiry are being pursued.  (As readers of my original post know, I would personally love to see a greater and more explicit recognition from within this subfield of the full panoply of potential obstacles that can arise for claims made therein.  The Leiter/Weisberg piece addressed only a few.)

Second, Jeff Stake (the President of SEAL) ended the Conference by citing my challenge to the field to develop "a clear set of internal standards of rigor to help place the emerging field of “evolutionary biology and the law” onto a firmer and more fruitful trajectory."  He prompted discussion of the idea, and, as one would expect from any group of law professors (and their kin), a number of competing views were voiced.  One view that I think must be at least partly correct relates to the need for parity among the fields.  In particular, some argued that this field should not be held to a greater standard of rigor than other fields, especially when other fields are being used to support claims that are even less plausible than the ones that emerge with a better understanding of evolutionary biology.  As Michael Guttentag teased out of my original blog post, the use of similar standards in application to other cognate fields would, after all, undermine many of the claims made in other interdisciplinary subfields as well. 

Perhaps I have become too impassioned about this topic, but--to my mind--this just means that these other cognate fields should take it upon themselves to engage in better self-policing as well.  We often complain that much academic work goes unread, but, in truth, law professors who do interdisciplinary work can presently have enormous impact on a number of legal and policy decisions, based on claims that have not been subjected to the kind of scrutiny that is normal in almost every other field of knowledge production.  As interdisciplinary work in the law grows, I believe this creates a special obligation for each of us to begin policing ourselves better, in a number of different ways.  And I believe, further, that there is nothing extraordinary about this obligation at all.  The obligation is currently reflected in the procedures for knowledge production in most cognate fields, in large part because they have had a much longer history of acquaintance with just these problems.  (Pieces like Gould's The Mismeasure of Man have made the problems in question highly salient within the sciences. )  But the same standards of rigor have not yet been imported into interdisciplinary work in the law in any systematic way. 

An impartial application of standards can demand not only that equal standards govern the plausibility and credibility of claims made in different interdisciplinary subfields, but also that different levels of scrutiny be applied to different claims depending on their potential impact (and, hence, potential for harm).  Ultimately, we will almost certainly have to assess questions of potential harm claim-by-claim, rather than subfield-by-subfield.  But is it just me, or do others share the view that--for whatever complex set of reasons--poorly-reasoned and ideologically-rooted claims  drawing on evolutionary biology have, all other things being equal, proven a bit more dangerous and more invidious than claims arising from many other cognate fields?  This may be due in part to the fact that the field sometimes purports to shed light (and rather direct light) on features of human nature. 

What do others think, and should any of these facts (if they are facts) bear on the standards that should be applied to claims made within this subfield? 

I invite thoughts from all quarters.  BUT PLEASE, no anonymous or ad hominem postings, and no personal attacks on any of the relevant members of the debate.  I'll leave anonymous postings that raise sincere challenges to various positions, but I don't want this discussion to devolve into anything that is not helpful.

Punitive Damages at Sea: Warning, Bad Puns Ahead

After a wondrous weekend in the Boston area, where my wife was giving a talk at Brandeis, we had the misfortune of spending 25 hours getting home to Tallahassee because of USAirways' incompetence.  That trip in itself should be a good segue to discussion of punitive damages.

On account of the time lost in transition, I found out from a student in my punitive damages seminar only this evening that the Supreme Court granted review of the Ninth Circuit's punitive damages decision in the Exxon Valdez case. Here's the NYT report and the wonderful SCOTUSblog post by Lyle Denniston, which has some helpful links to the various briefs.

One thing you'll notice is that Exxon's lawyers (the usual suspects including my bosses from when I spent a couple summers at OMM) have framed the inquiry as being chiefly and almost exclusively about maritime law and much less so about the conventional analysis that would be expected under the Due Process Clause.  It seems fishy that after almost 20 years of litigation, the maritime law issue comes into focus, when, to my recollection, this case has already gone up and down on appeal on almost every other issue. A quick perusal of the Brief in Opp on cert indicates some decent waiver arguments.

Meanwhile, Justice Alito has recused himself because he owns lots of Exxon shares (quite certainly more than I have), and so if I had to predict without knowing a lick of maritime law, I'd bet the decision below (which allowed $2.5 billion against Exxon in punis) is affirmed since Alito was part of the defendant-friendly 5-member majority in the Philip Morris case. That said, Philip Morris, like many of the other major SCT punitive damages cases, fails to split in conventional liberal-conservative blocs, and that lack of predictability is part of that which makes this area a lot of fun to study and teach--though probably more maddening to litigate. 

I plan on reading the various briefs filed and if I get my sea legs on the maritime issue's newfound prominence, I'll post some more thoughts. I will also be circulating an initial draft of my Retributive Damages project next month, both here on the blog and on SSRN, so stay tuned for more punitive damages coverage...

Somebody Give That Man A Medal.

Henry Hyde?

In Honor of Halloween

Click here to see England's five most mysterious and interesting gravestones.  (Courtesy of BBC History Magazine.)

Misguidedly Merciful? A Reply to Professor Meyer (Part 1)

  Earlier this year, Professors Austin Sarat and Nasser Hussein published a collection of essays about the nature of mercy and clemency in the modern state.[1] In that collection, Professor Linda Ross Meyer found my article from a few years ago, Against Mercy (“AM”),[2] to be sufficiently provocative that it served as a springboard to her thoughtful piece, “The Merciful State.”[3]

In The Merciful State, Meyer argues that a state that embraces mercy within its legal institutions of punishment can still be an attractive one worthy of approbation. Though I largely disagree with that claim on account of mercy’s inconsistency with retributive justice, I don’t wish to use this space to elaborate much upon whether mercy is something attractive state institutions should pursue. For the most part, readers will be able to see the nature of the disagreement by reading both pieces and determining for themselves which views about mercy for which they feel more affinity. Instead, what I’d like to focus on here in this essay is the way in which Professor Meyer motivates her defense of mercy by attacking arguments I make on behalf of retributive punishment.

To my mind, Professor Meyer’s criticisms are largely unfounded, consisting either of mistaken readings of what I wrote or unpersuasive challenges on the merits. Because enough mischaracterizations in Professor Meyer’s article exist to raise the worry that others might understand my views contrary to how I meant them, I will briefly respond to Professor Meyer’s criticisms in a way that I hope might serve to better illuminate my account of retributive punishment and what its implications are for the role of mercy in a liberal democracy. I will lay out these issues over the course of a few separate blog posts.

Let me preface this critique by noting that, at a high level of generality, Professor Meyer starts well enough. She correctly writes that I argued that mercy -- defined in my project as leniency remitted in the realm of punishment, granted out of compassion, corruption, caprice or bias -- should play no part in state punishment. She also correctly notes that, consistent with this normative view, I argue that liberal states should be chary of current practices thought to be constitutional, because they endow various actors in the criminal justice system with unreviewable discretion to dispense such mercy. This opposition to mercy is predicated on the view that mercy is inconsistent not only with retributivism, properly understood, but also with liberalism, specifically the liberal principle that recognizes all citizens as possessing an equal package of basic liberties under the law.

What follows over the next few posts is a bill of particulars that largely follows Professor Meyer’s claims about my work through her essay. To be clear, some of what follows is a response to good faith but unpersuasive challenges, while other points I make are based on what I view as straightforward misreadings of what I wrote. I will try to make obvious which are which. Separate posts will sketch out some answers to other questions raised by Professor Meyer's article, but I will begin with answers to the following two questions raised by Professor Meyer.

1.  Is Retributivism Simply Reducible to Expressive Utilities?

In the account of retributive punishment I’ve been developing over the last ten years, one of the reasons I use to explain the internal intelligibility of retributive punishment is that such punishment communicates the norm of personal accountability to offenders. The state communicates its commitment to this norm to the offender when the state attempts to detect, prosecute, and punish one’s violations of the law through coercive measures conventionally associated with punishment following adjudication. 

Professor Meyer begins her critique of my account of retributivism by looking at this issue. She notes that “With respect to moral accountability, many writers have elsewhere argued that ‘expressivist’ retributivist theories like Markel’s that rely on ‘sending a message’ to the offender or polity tend to reduce to utilitarian arguments about how best to transmit messages about law and order. One can argue, for example, that ‘sending a message’ would be better achieved via an ad campaign, or via public corporal punishment, or via punishing only the most famous, only those with community ties, or only those whose associates and victims are paying attention.”[4]

Put simply, my account is able to resist the claim that retributive punishment is simply reducible to the goal of maximizing general awareness of “law and order.”  Indeed, I have actually addressed this exact point on several occasions.[5] Unlike the unnamed “expressivist theories” Meyer vaguely alludes to, the focus for my theory is on providing a justification for the coercion the state imposes on the offender as a result of an encounter between the state and the offender through the institutions of adjudication and punishment. In other words, the theory tries to explain how coercive punishment communicates certain values to the person most in need of being connected to those values: the offender. If the offender fails to understand the basis for that communication (say for example because of mental incompetence) then there is no basis for punishment qua retribution. This is what makes my account of retributivism a “confrontational” conception of retributivism. A different way of looking at it is by distinguishing communicative accounts of punishment, where the primary emphasis is on the relationship between offender and state, and expressivist accounts of punishment, where the concern is to emit “expressive” messages to the public at large; those expressive emissions, on my account, are valuable but they arise incidentally to the confrontational relationship between state and offender. Thus, the account of retributive punishment I offer simply cannot be conflated with the goal of ensuring adequate and effective message dissemination to the public at large.

As I explain in Against Mercy and elsewhere, the expressive messages to the public are not sufficient justification for retributive punishment itself. As Professor Meyer and others note, if the goal is simply to emit messages to the public, it wouldn’t conceptually require punishment as the modus operandi. That’s not to deny punishment’s capacity for norm-projection, but it is to deny that my account of punishment is predicated strictly on that goal.

2. Is Humane Treatment of Offenders an Undeserved Mercy?

 Professor Meyer next contends (contra the view in Against Mercy) that mercy is compatible with treating offenders as responsible offenders.[7] Specifically, she explains that offenders’ responsibility is still affirmed when we extend mercy for two reasons; first because “we cannot hold finite beings responsible for all the infinite repercussions of their actions,” and second, “because we have the obligation to treat offenders humanely, we never give them the world as it would be if their inhumane acts were universal laws, for to include offenders in the circle of humanity is itself an undeserved mercy.”[8]

 The first claim is puzzling since the account of retributivism I articulate specifically limits responsibility by punishing offenders only for their misconduct and the reasonably foreseeable consequences of their unlawful actions, not for every ripple in time and space that might follow their actions.[9] As to the second and more important claim, I agree that offenders should be treated humanely but I don’t understand why treating offenders humanely is an undeserved mercy rather than the predictable and consistent effectuation of the very commitments (to moral accountability, equal liberty under law, and democratic self-defense) that motivate the account of retributive punishment I offer. Furthermore, even if treating offenders humanely is an undeserved mercy, Professor Meyer doesn’t explain why we should compound the apparent error by extending even more leniency on top of treating offenders humanely. I also wonder if Meyer is truly committed to the proposition that treating offenders humanely is in some sense undeserved. Do all crimes invariably trigger a sense of wanting to act inhumanely to the offenders? I doubt it.

---

À I am grateful to Ethan Leib, Linda Ross Meyer, Austin Sarat, Jonathan Simon, and Bob Weisberg for comments and conversations about this paper. I sent a version of this paper to Professor Meyer prior to posting and she graciously conceded many of the points here, though she quite understandably retained most of her enthusiasm for the larger project of the “merciful state.” Professor Meyer also raised some interesting questions that I may address in later iterations of this reply.

[1] Forgiveness, Mercy, and Clemency, Austin Sarat & Nasser Hussain, eds., Stanford University Press, 2007.

[2] Dan Markel, Against Mercy, 88 Minn.L. Rev. 1421 (2004) (hereinafter “AM”).

[3] See generally Linda Ross Meyer, The Merciful State (hereinafter “TMS”), available at this link. Citations to TMS refer to the online version of the manuscript.

[4] TMS at 20.

[5] Markel, The Justice of Amnesty? Toward a theory of retributivism in recovering states, 49 U.

Toronto L. J. 389, 421-25 (1999); Markel, Are Shaming Punishments Beautifully Retributive? Retributivism and the Implications for the Alternative Sanctions Debate, 54 Vanderbilt L. Rev. 2157, 2184-2191 (2001) (hereinafter “Markel (2001)”).

[7] See TMS at 20.

[8]

Id.

[9] See, e.g., AM at 1468.

---

Citation counts and the philosophy of law

I heard that a certain student-run law review assesses submissions on the basis of whether acceptance is likely to increase the journal’s citation rank – in particular whether the average number of citations per article for the author is higher than the average number of citations per article for the law review.

I’m not sure whether satisfying this condition is necessary for acceptance or simply weighs in one’s favor. I also don’t know whether exceptions are made for areas of the law (e.g. tax) where articles generally get few citations. But unless there is an exception made for the philosophy of law (something I doubt), such a practice, if generally accepted, could mean that philosophy of law articles in student-run law reviews will be few and far between.

Ronald Dworkin aside, even the most eminent philosophers of law generally have lower citation counts than, say, moderately successful constitutional law scholars. Worse yet, someone who writes in a high citation area would have a leg up when submitting a philosophy of law article compared to someone who writes exclusively in the philosophy of law.

Is this a problem? Or should philosophers of law not be publishing in student-run law reviews in the first place?

What makes for a good VAP program?

I am on my way back -- having a beer in the airport -- from the AALS hiring conference.  It was great seeing so many colleagues, friends, fellow law-bloggers, Prawfs readers, and (intimidatingly interesting and accomplished) faculty candidates.  I was struck, more so than in the past, by the number of candidates with whom I spoke who were in, or coming off, VAP appointments.

Obviously, it's nothing new to observe that these programs are proliferating quickly, and that this proliferation has striking effects on the scholarly accomplishments and teaching experience of candidates.  My conversations with VAP-veterans got me thinking . . . what are the marks or characteristics of a really good VAP program?  Sure, it's easy to imagine a law school saying, "hey, it looks like good schools have VAP programs.  So, we should too", but not thinking through the program's aims and features.  So, what are, or should be, these aims and features?  Should they be more about teaching experience, or time for writing?  Are they for the benefit of the hosting school (they provide new blood, lower-cost curriculum diversification, etc.), for the benefit of the VAP herself, for (somehow) the legal academy as a whole?  Or, for something else?

The Charney v. S&C Settlement: Distorted Perceptions of Employment Discrimination Lawsuits

Aaron Charney has settled his claim of sexual orientation discrimination against Sullivan & Cromwell,  and some of the ensuing commentary has seemed surprisingly far off-base, in my view.

Leonard Link, whose blog often does have lots of good stuff, risks furthering a common misperception by ending his post with this: "Now the question that everybody will be asking is.... will Aaron Charney ever have to work again?"  It's not every day I can answer a question everybody is asking, but today I can:  Yes, unless Charney wants to experience his "early retirement" in a rural trailer park.  I've only once seen an employment discrimination settlement so big that the plaintiff would never have to work again.  A very successful early settlement, from the plaintiff's perspective, usually is about 1-3 years' pay, but it's more common for a good early settlement to be about 6 months' salary, which would be less than $100K.  Settlements that, like Charney's, occur before much discovery tend to be on the smaller side, because the plaintiff doesn't yet have all the evidence that would convince the defendant it wouldn't win on summary judgment.  Employment discrimination settlements almost never are a gold mine, and we shouldn't speculate that this case was.

Another blogger took a "skeptical" view of the speculation that Charney got  "a huge payout" -- but for dubious reasons: "Sullivan & Cromwell had a viable counter-suit against Charney.  In exchange for dropping the counter-suit, Charney likely had to give up a decent portion of any settlement.  Also likely knocking the settlement down was the court's recent dismissal of Charney's Intentional Infliction of Emotional Distress and Conspiracy claims.  Plus, Charney had a lot of hungry lawyer mouths to feed."  The "hungry lawyer mouths" quote is what's bizarre: yes, Charney had three different groups of lawyerrs retained, but (1) if the lawyers were on a contingency fee, it's not like they each got a third -- I'm sure they just shared a standard 33% or 40% fee, and (2) if the lawyers were billing Charney hourly, then Charney probably did better than if he'd paid on contingency, because the case settled early -- before depositions, as I understand it, and discovery is where the real money is spent in litigation (according to both my experience and a study I read showing that discovery is about half of the cost of litigation).

Also, I can't see how Charney's settlement value would've dropped after the court's "dismissal of [his] Intentional Infliction of Emotional Distress and Conspiracy claims."  On his still-standing discrimination claim, Charney was suing for broader relief (the same uncapped emotional distress, punitive damages, and lost wages, plus attorney fees) -- which is why I never liked including "intentional infliction" claims in discrimination suits.

A number of bloggers and commenters are awaiting, or soliting, a leak of the settlement, so let me disappoint you: It ain't happening.  I've written about how common confidential settlements are, and I know the lawyers on both sides of the Charney case: they're pros who'd never leak.  And S&C certainly is keeping this under wraps, so if a leak happens, suspicion would center on Charney, and I'm sure the terms of the settlement give S&C the right to claw back the whole settlement amount if Charney leaks.  Of course, this case has been odd, so it might break all the rules -- but the fact remains that leaks of confidential settlements in employment cases are truly rare.  One blogger summed it up best: "The truth here will not be known."

Law Review Article Roundup: Fall 2007

Here is the first round of law review articles submitted by our readers for the fall 2007 cycle. The listings are below. Each listing has the author(s), title, journal, volume and date (if available), as well as a link to a draft of the article (if available). And as per usual practice, I've put the articles in reverse alphabetical order.  At the end, we have a report from the Georgetown Law Journal on their slate of articles chosen this fall.

The fall articles round-up was announced here. Please let us know if you have a law review article that was accepted in the fall cycle. Send the email to this address. We'll be updating this list every few weeks through the end of the year.  Law reviews are also welcome to report their fall acceptances.

UPDATE 10/26: New articles at the top.

Law Review Articles Accepted in Fall 2007

Helen Norton, The Measure of Government Speech: Identifying Expression’s Source, 88 Boston University Law Review (forthcoming 2008).

Sandeep Gopalan, Alternative Sanctions in International Law: The Case of Abu Ghraib, __ Mich. St. L. Rev. __ (forthcoming, January 2008).

Sandeep Gopalan, Shame Sanctions and CEO Pay, 32 Delaware J. Corp. L. __ (forthcoming).

Sandeep Gopalan, Changing Social Norms on CEO Compensation: The Role of Norms Entrepreneurs, __ Rutgers L. J. __ (forthcoming).

Sandeep Gopalan, Say on Pay, __ Pepperdine L. Rev. __ (forthcoming).

Sandeep Gopalan, A Demandeur-Centric Approach to Regime Design in Transnational Commercial Law, __ Geo. J. Int'l L. __ (forthcoming).

Jared A. Goldstein, Habeas Without Rights, Wisconsin L. Rev.

Christopher M. Bruner, The Enduring Ambivalence of Corporate Law, 59 Alabama Law Review (forthcoming 2008).

Andrew Adler, An Unintended and Absurd Expansion: The Application of the Archaeological Resources Protection Act to Foreign Lands, New Mexico Law Review, Volume 38, Issue 1, Winter 2008.

________________________________________

Norman R. Williams, "Taking Care of Ourselves: State Citizenship, the Market, and the State," 69 Ohio St. L.J. __ (forthcoming 2008).

Hanah Volokh, The Two Appointments Clauses: Statutory Qualifications for Federal Officers, University of Pennsylvania Journal of Constitutional Law, forthcoming Volume 10, May 2008.

Alexander Volokh, Choosing Interpretive Methods: A Positive Theory of Judges and Everyone Else, 83 NYU L. Rev. (forthcoming 2008).

Ruth C. Stern & J. Herbie DiFonzo, Terminal Ambiguity: Law, Ethics and Policy in the Assisted Dying Debate, Boston University Public Interest Law Journal, Fall 2007.

Christina M. Sautter, Shopping During Extended Store Hours: From No Shops to Go-Shops - the Development, Effectiveness, and Implications of Go-Shop Provisions in Change of Control Transactions, 73 Brooklyn Law Review __ (2008).

Jeffrey A. Parness and Therese Clarke Arado, Safe Haven, Adoption and Birth Record Laws: Where Are the Daddies?, 36 Capital Law Review, Issue 2 (2008).

Rafael I. Pardo, Illness and Inability to Repay: The Role of Debtor Health in the Discharge of Educational Debt, 35 Fla. St. U. L. Rev. (forthcoming 2008).

Ashira Ostrow, Reviving the Facial/As-Applied Dichotomy in Land Use Law: Lessons from RLUIPA, Harvard Journal of Law and Public Policy (forthcoming Volume 31, January 2008). 

Scott A. Moss & Douglas M. Raines, The Intriguing Federalist Future of Reproductive Rights, 88 Boston U. L. Rev. (Feb. 2008).

Scott A. Moss, Fighting Discrimination While Fighting Litigation: A Tale of Two Supreme Courts, 76 Fordham L. Rev. (Nov. 2007).

Meredith R. Miller, Contracting Out of Process, Contracting Out of Corporate Accountability: An Argument Against Enforcement of Pre-Dispute Limits on Process, Tennessee Law Review, Spring 2007.

Salil Mehra, The iPod Tax: Why the Digital Copyright System of American Law Professors' Dreams Failed in Japan,79 Colorado Law Review (2008).

Adam J. Levitin, Priceless? The Social Costs of Credit Card Merchant Restraints, 45 Harv. J. on Legis. ___ (2008).

Adam J. Levitin, The Costs of Credit Cards, 55 UCLA L. Rev. ___ (2008).

Nancy Levit, Mega-Cases, Diversity, and the Elusive Goal of Workplace Reform, 49 Boston College Law Review ___ (forthcoming 2008).

David A. Hoffman, Alan Izenman and Jeffrey Lidicker, "Docketology, District Courts, and Doctrine," 85 Wash. U. L. Rev. (forthcoming 2008).

Jim Hawkins, Renting the Good Life, William & Mary Law Review, Vol. 49, forthcoming 2008.

John Greenman, On Communication, Michigan Law Review, May 2008.
 
Elizabeth M. Glazer, When Obscenity Discriminates, 102 Northwestern University Law Review (forthcoming 2008).

Trey Drury, What’s the Cost of a Free Pass?  A Call for the Re-Assessment of Statutes that Allow for the Elimination of Personal Liability for Directors,  Transactions: The Tennessee Journal of Business Law, Vol.9, Fall 2007.

Jason J. Czarnezki, An Empirical Investigation of Judicial Decisionmaking, Statutory Interpretation & the Chevron Doctrine in Environmental Law, 79 University of Colorado Law Review ___ (forthcoming 2008).

I. Glenn Cohen, The Right Not to Be a Genetic Parent, 81 S. Cal. L. Rev. _ (Fall, 2008).

Danielle Keats Citron, "Technological Due Process," 85 Washington University Law Review (forthcoming 2008). Josh Bowers, Contraindicated Drug Courts, 55 UCLA L. Rev. (forthcoming 2008).

Oren Bracha and Frank Pasquale, Federal Search Commission: Fairness, Access, and Accountability in the Law of Search, 93 Cornell L. Rev. (forthcoming 2008).

Matthew T. Bodie, Workers, Information, and Corporate Combinations: The Case for Non-Binding Employee Referenda in Transformative Transactions, 85 Wash. U. L. Rev. (forthcoming 2008).

Joseph Blocher, Institutions in the Marketplace of Ideas, Duke Law Journal, Vol. 57, 2008.

Joseph Blocher, Amending the Exceptions Clause, Minnesota Law Review, Vol. 92, 2008.

Shyamkrishna Balganesh, Demystifying the Right to Exclude: Of Property, Inviolability, and the Right to Exclude, 31 Harv. J.L. & Pub. Pol'y (forthcoming 2008).

____

In addition, we have the following report from the Georgetown Law Journal for Volume 96, 2008.   These articles were chosen for publication during the fall season:

Richard Lazarus, Advocacy Matters Before and Within the Supreme Court

Marcel Kahan & Edward Rock, The Hanging Chads of Corporate Voting

Yasmin Dawood, The Antidomination Model of Democracy

Sharona Hoffman, Responders' Responsibility: Liability and Immunity in Public Health Emergencies

Saikrishna Prakash, The Executive's Duty to Disregard Unconstitutional Laws

William Baude, The Judgment Power: Jurisdiction, Finality, and Executive Review

Sydney Foster, Should Courts Give Statutory Interpretation Methodology Stare Decisis Effect?

Amnon Lehavi, The Property Puzzle

Cass Sunstein & Eric Posner, Climate Change Justice

2007 Round-Up for Articles Placed in Peer-Review Journals

Here is the first round of peer-review articles submitted by our readers.  The listings are below. Each listing has the author(s), title, journal, volume and date (if available), as well as a link to a draft of the article (if available).  And as per usual practice, I've put the articles in reverse alphabetical order.

The peer-review round-up was announced here.  Please let us know if you have a peer-reviewed article that was accepted this year.  Send the email to this address.  We'll be updating this list every few weeks through the end of the year.

UPDATE 10/26: New submissions added at the top.

Articles Accepted by Peer-Review Journals in 2007

Derek T. Muller, The Compact Clause and the National Popular Vote Interstate Compact, 6 Election L.J. 372 (2007).

Andrew Adler, Expanding the Scope of Museums' Ethical Obligations with Respect to Nazi-Looted Art: Incorporating Restitution Claims Based on Private Sales Made as a Direct Result of Persecution, 14 International Journal of Cultural Property 57 (2007).

____________________________

Joshua C. Tate, Christianity and the Legal Status of Abandoned Children in the Later Roman Empire, 24 J.L. & Religion (forthcoming 2008).

Rafael I. Pardo, Eliminating the Judicial Function in Consumer Bankruptcy, 81 Am. Bankr. L.J. (forthcoming 2007).

Patrick S. O'Donnell, Social Norms & Law: An Introduction, Theory and Science, Vol. 9, Issue 2, 2007.

Jody Madeira, Blood Relations:  Collective Memory, Cultural Trauma, and the Prosecution and Execution of Timothy McVeigh, 42 Stud. in Law, Pol. & Soc'y.

Ethan J. Leib, Interpreting Statutes Passed Through Referendums, 7 Election L.J. _____ (forthcoming 2008) (faculty-edited).

Ethan J. Leib & David L. Ponet, Representation in America: Some Thoughts on Nancy Pelosi, Gavin Newsom, Tim Johnson, and Deliberative Engagement, 17 The Good Society ____ (forthcoming 2008) (faculty-edited).

Ethan J. Leib, A Comparison of Criminal Jury Decision Rules in Democratic Countries, 5 Ohio St. J. Crim. L. ____ (forthcoming 2008) (faculty-edited).

Cindy D. Kam & Robert A. Mikos, Do Citizens Care About Federalism? An Experimental Test, 4 Journal of Empirical Legal Studies 589 (Nov. 2007).

Anthony C. Infanti, Deconstructing the Duty to the Tax System: Unfettering Zealous Advocacy on Behalf of Lesbian and Gay Taxpayers, ___ Tax Law. ___ (2008).

Rebecca E. Hollander-Blumoff & Tom R. Tyler, Procedural Justice in Negotiation: Procedural Fairness, Outcome Acceptance, and Integrative Potential, Law & Social Inquiry, Spring 2008.

Michael A. Helfand, When Religious Practices Become Legal Obligations: Extending the Foreign Compulsion Defense, 23 J.L. Religion (forthcoming 2008).

Micheal W. Giles, Virginia Hettinger, Christopher Zorn, & Todd C. Peppers, The Etiology of the Occurrence of En Banc Review in the U.S. Courts of Appeals,  American Journal of Political Science vol. 51, pp. 449-63 (July 2007).

Victor Fleischer, Taxing Blackstone, Tax Law Review (forthcoming 2008).

Damon M. Cann & Jeff Yates, Homegrown Institutional Legitimacy: Assessing Citizens' Diffuse Support for their State Courts, American Politics Research, Volume 36, 2008.

Science News Roundup: Gay Worms Arrive; Biology Legend Ousted as Chancellor after Racist Comments

Usually my science geek nature is unhelpful to my blogging.  But in the past few days, a science news site I read, PhysOrg, posted two stories arguably of interest to a legal audience.  At first glance, the two stories have little in common, but both touch upon difficult issues of which traits are socially determined and which are based in biochemistry.

Scientists Make Worms Gay:   "University of Utah biologists genetically manipulated ... worms so the[y] ... were attracted to worms of the same sex – part of a study that shows sexual orientation is wired in the creatures’ brains."  A few comments:

(1)  Worms aren't people, but this is some evidence sexual orientation is can result from biochemistry and isn't just a "lifestyle choice"; the worms didn't fall prey to the glamorous gay worm lifestyle Hollywood portrays.

(2)  Before gay rights advocates get too excited about this as evidence that gayness is biochemical rather than chosen: how long before we can turn gay worms straight -- and what would that do for the cause of gay rights?

(3)  This study was funded by tax dollars in Utah, one of the reddest, most socially conservative states; if it were a New York public university, wouldn't you expect, say, Mitt Romney to bash this study just like John McCain (correctly, in my view) bashed New York politicians' efforts to spend tax money on a "Woodstock museum"?

Nobel Laureate & DNA Discoverer James Watson Forced Out After Racist Comments:  "[T]he Cold Spring Harbor Laboratory Board of Trustees decided to suspend the administrative responsibilities of Chancellor James D. Watson, Ph.D."  Dr. Watson, who won the Nobel Prize for co-discovering DNA, found himself in hot water for the following:

[T]he Sunday Times Magazine of London . . . quoted him as saying that he's "inherently gloomy about the prospect of Africa" because "all our social policies are based on the fact that their intelligence is the same as ours - whereas all the testing says not really."   He said that while he hopes everyone is equal, "people who have to deal with black employees find this is not true."

Before you call the PC cops who fight unfair firings of those who dissent from PC orthodoxy: I can be sympathetic to arguments that one bad remark shouldn't end your career, and Wats0n did apologzie for the above remark -- but he has a broader history of the same sorts of stereotypical negative assertions about the genetic mental and emotional traits of nonwhites, so the only real question is how he lasted so long in a leadship role at a major scientific institution:

• In [his new] book, Watson raises the prospect of discovering genes that significantly affect a person's intelligence.  "There is no firm reason to anticipate that the intellectual capacities of peoples geographically separated in their evolution should prove to have evolved identically," Watson wrote. "Our wanting to reserve equal powers of reason as some universal heritage of humanity will not be enough to make it so."
• In 2000, in a speech at the University of California, Berkeley, he suggested that sex drive is related to skin color. "That's why you have Latin lovers," he said, according to people who attended. "You've never heard of an English lover. Only an English patient."

In short, Watson isn't Larry Summers, a leader jettisoned for one isolated remark; his immense contributions to humanity -- it'd be hard to overstate how many lives have been, and will be, saved by scientific understanding of DNA -- are, sadly, at risk of getting overshadowed by his troublingly stereotypical harsh views of nonwhites.  In that light, firing Dr. Watson was a kindness that might help save his impressive legacy from some darker aspects of his nature.

Article News Update Before the AALS Faculty Recruitment Conference

The AALS faculty recruitment conference is being held this weekend.  Some folks who are on the market may have new information regarding fall placements for their articles -- placements that were made after the FAR form was due.  If you have some article news you'd like to share before the conference, send me an email today and I'll be sure to post it this evening.  You can send it to this email address. 

And for those of you doing the interviewing in D.C., be sure to check out the spring and fall articles reports (here, here, and here).  Many of the folks who submitted article news are looking for teaching jobs this fall, and you may find some information useful to your committee.

Can District Judges Sit on Other Circuits?

It is well established that district judges may sit by designation on the circuit court in which they keep their chambers. As provided by 28 U.S.C. § 292(a),

The chief judge of a circuit may designate and assign one or more district judges within the circuit to sit upon the court of appeals or a division thereof whenever the business of that court so requires. Such designations or assignments shall be in conformity with the rules or orders of the court of appeals of the circuit.

But in an Eleventh Circuit decision issued yesterday (hat tip: How Appealing), the panel includes the Honorable Tom Stagg, U.S. District Judge for the Western District of Louisiana, sitting by designation.

To be fair, 28 U.S.C. 292(d) does provide for the service of a district judge on another circuit, but only in extremely limited circumstances:

The Chief Justice of the United States may designate and assign temporarily a district judge of one circuit for service in another circuit, either in a district court or court of appeals, upon presentation of a certificate of necessity by the chief judge or circuit justice of the circuit wherein the need arises.

At the risk of asking a silly question, has the Chief Judge of the Eleventh Circuit presented such a certificate of necessity to Chief Justice Roberts? Was Judge Stagg assigned by the Chief Justice? Is the Eleventh Circuit short for sitting judges? If so, then this is much ado about nothing. If not, then I think there is a serious problem... it may seem hypertechnical, but the Supreme Court invalidated decisions by a Ninth Circuit panel constituted in violation of  § 292 just four years ago in Nguyen v. United States, even though there was no argument below that the panel was unlawfully constituted, and even though the error was arguably harmless.

Just a fun meditation for an otherwise gray D.C. Thursday...

What Happened in Heller, Chapter I: The Certiorari Briefing

Pauca sed matura; yeah, that's the ticket.  Hello, all.  Despite an awesomely delayed start to my stint here at Prawfs, let’s see if I can put a couple of ripe thoughts across in the final quarter.

I've opined before that if the U.S. Supreme Court grants certiorari in District of Columbia v. Heller, the so far successful Second Amendment challenge to the District of Columbia's ban on handguns and functional long guns, then Heller will be the biggest case of the Term.  Bigger than Guantanamo, bigger than lethal injection protocols, even bigger than Medellin. The scope of the constitutional issues raised -- what is the basic meaning of a whole provision of the Bill of Rights? -- and the sheer intensity of popular concern with gun rights and gun control will propel Heller to the center of this Term, and indeed of the early legacy of the Roberts Court.

Briefing on certiorari is now complete. The District and the respondent have filed their principal cert briefs, and the District has filed a reply in support of the petition.  Unusually, both the District as petitioner and the D.C. resident who prevailed below (Mr. Heller) have urged the Supreme Court to take up the case.  The Court will likely decide whether to grant certiorari in November.  [UPDATE: SCOTUSBlog reports that the Court will consider the Heller petition on Nov. 9, and could rule on the petition by Tuesday, Nov. 13th.]

There are also several amicus curiae briefs, all in support of certiorari.    

Finally, some of the D.C. residents who were plaintiffs below have filed a cross-petition for certiorari asking the Supreme Court to reverse the D.C. Circuit's holding that they, unlike Heller, lacked standing to raise Second Amendment claims.

Thoughts on the cert briefing and the case to date:

1. Audience.  Attorneys briefing cases that are of interest only to judges and legal specialists write differently than attorneys who know they are writing for the eyes of a broader public.  The audience for this case is vast.  You could already begin to see the influence of that audience when the case (then captioned Parker v. D.C.) was before the circuit court.  It is very noticeable in the cert petition briefing, and will take on even greater prominence in the merits briefing if the Supreme Court grants certiorari.  Thus, the District's petition ended with a condemnation of the D.C. Circuit's decision as "particularly cold-hearted" because it refused to permit a complete ban on handguns, which the District argues cause "devastation" and are "the weapon overwhelmingly used" to commit violent crimes.  The District closed on a dramatic note, urging: "Whatever right the Second Amendment guarantees, it does not require the District to stand by while its citizens die."

This led to some fireworks, as Heller rejoined, in a section of his response brief tartly titled "Citizens Under Criminal Attack Are Not Required to Stand By and Die Awaiting Police Protection," that the District has no legal obligation to ensure the safety of its citizens, and has vigorously litigated its own lack of liability in suits involving urban riots, failure to prevent crime, failure to protect witnesses, and police misconduct. "In the meantime," Heller concluded,

people need not stand by and die waiting for Petitioners to provide a safe city in which to live.  The Second Amendment guarantees to citizens something that Petitioners have expressly and consistently disclaimed any legal obligation to provide: an effective means of preserving their lives.

I can only report my own reactions, admittedly those of a gun rights supporter, to such preliminary skirmishing.  This struck me as a very effective response to the District's rhetoric -- enough so that I wonder whether there was some post hoc regret by petitioners' counsel about the choice of language in the petition. 

2. The Question Presented.  There is a big threshold dispute about how whether the Court should accept the District's formulation of the question presented.  The District is trying to frame Heller as a case about whether handguns may constitutionally be banned when a citizen "may lawfully possess a rifle or shotgun to protect himself." Pet. at 28.  But one of the challenged provisions of D.C. law requires all lawfully registered firearms in the home to be kept "unloaded and disassembled or  bound by a trigger lock or similar device," D.C. Code 7-2507.02, which renders them useless for self-protection.  The D.C. Circuit invalidated this provision as well, on the theory that even if Mr. Heller were permitted to possess a handgun, the provision would prohibit him from having his pistol available in a usable condition. 

Yet the District's petition asserts in a footnote that it "does not ... construe [7-2507.02] to prevent the use of a lawful firearm in self-defense." Pet. at 7 n.2.    The District's reply brief (Repl. at 5-6) makes its position clearer: all firearms must be kept both unloaded and disabled (locked or disassembled).  But if an "emergency" arises -- presumably, though the District is opaque here, a threat of "imminent bodily harm" of the sort that would provide the basis for an affirmative defense of self-defense under general D.C. criminal law -- then, although the D.C. Code does not say this, courts would, or should, imply an affirmative defense to liability for possessing an unlawfully loaded and functional firearm under the D.C. Code.  In theory, this could permit an otherwise lawful firearm to be used for self-defense against that threat, including by firing it against the threat. 

The reason the District's position has engendered confusion is that the concession is close to meaningless as a practical matter.  Such a firearm will still be useless in most defensive scenarios.  The point is intuitive.  The District requires that the gun be kept both unloaded and disabled until an "emergency" arises.  When someone kicks in your door at 3 a.m., however, there will simply be no time to (1) retrieve your shotgun, then (2) unlock it (which key was it?) and (3) load it (one shell at a time) in time for you to be able to use it as intended -- i.e., as a firearm.  (And by the way, that's assuming you didn't "disassemble" it, cf. D.C. Code 7-2507.02.)  This is consistent with the interpretation of 7-2507.02 that the D.C. Circuit adopted in its opinion invalidating that provision, and in its order denying plaintiffs' motion to issue the mandate in part. 

Some of the Justices may know enough about firearms to appreciate these practicalities at a glance.  Justice Scalia was on the rifle team as a teenager and Justice Thomas grew up in rural Georgia.  No doubt the respondent and/or amici will take steps to educate the other Justices about the facts if certiorari is granted.

3.  The Specter of Incorporation.  The issue of Fourteenth Amendment incorporation is lurking in the background in Heller.  No issue of incorporation is directly presented by the case.  The Bill of Rights is generally understood to apply directly to D.C., as it does to the federal government (which exercises direct supervision over D.C.), without need of the intermediation of the 14th Amendment. Indeed, the Supreme Court held in the 19th century that the Second Amendment is not incorporated against the states.  Thus Heller does not squarely raise the question of whether, say, the City of Chicago may continue to ban handguns without violating the Constitution.  It does , however, squarely raise the question of whether a Congressional handgun ban would violate the Constitution, and that is certainly importance enough.

Heller's cert respsonse brief is fairly low-key on incorporation, focusing its historical analysis on antebellum sources of constitutional meaning. Its one explicit nod to the issue is a remark that "while federal courts have not subjected state laws to Second Amendment review for lack of incorporation ... that anomaly will presumably be addressed in a future case." Resp. at 17 (emphasis added) (citing a 9th Circuit opinion asserting that older Supreme Court cases refusing to incorporate the 2d Amendment rest on a "thoroughly discredited" approach). 

Still, state and local governments are paying attention.  If the Supreme Court takes Heller and affirms, incorporation will be one of the next battlegrounds.  The amicus briefing in the D.C. Circuit brought out a fascinating regional split between the 13 midwestern, mountain, and southern states, led by Texas, who urged the court to adopt a strong individual-rights conception of the Second Amendment; and the smaller group of mostly coastal states and cities (plus Chicago; Idaho was mistakenly listed on this brief but did not join it) who urged that the DC gun ban be upheld.

I have long had some sympathy with the idea of a robust Second Amendment individual right that is nevertheless not incorporated against the States: in essence, treating the Second as a "strong federalism" provision , an individually justiciable restraint on Congress and the federal administrative state analogous to the Commerce Clause limitations recognized in United States v. Lopez. So I watch this issue with particular interest. If the Court grants certiorari, we can expect another  "roll call" of states submitting amicus briefs on the merits. Indeed, the State of New York (again on behalf of a coalition of "blue" states including Illinois, Maryland and Hawaii) has already weighed in with an amicus brief in support of certiorari.  I have only had time to read New York's brief once, but it struck me as focused and effectively written, probably the best pro-control brief to be filed before the Supreme Court in the case so far.

4. A Personal Note. I confess an atypical personal interest with respect to the certiorari petition in Heller: I will have the privilege of teaching a seminar course on Firearms Law & Policy at OCU Law in the spring of 2008.  This was scheduled well before the D.C. Circuit's decision in Parker jolted the issue of constitutional arms rights to the front of the headlines.  So although a law school seminar is obviously of miniscule importance compared to the massive constitutional, political, individual, and institutional stakes in Heller ... nevertheless, as a teacher, I admit that the prospect of this landmark Supreme Court case being argued while I am teaching a seminar directly on topic leaves me almost giddy at the thought of such academic serendipity.  Like teaching a course on the right to counsel during the pendency of -- no, not Gideon -- but Johnson v. Zerbst.

Don't Shoot the Messenger

This week, a national organization called the Students for Concealed Carry on Campus (SCCC) is coordinating peaceful 'empty holster' protests on university campuses. The protesters are challenging state laws and university policies which prohibit those licensed to carry concealed handguns to do so on campus. According to the SCCC, such policies 'stack the odds in favor of armed killers' by preventing otherwise lawfully held weapons to be carried by their owners.

I understand at a base level the point being made by the SCCC (the group sells tee shirts emblazoned with 'What you don't see can save your life'), but I would be extremely uncomfortable teaching in a classroom in which students were permitted to carry weapons. Admittedly, this could be because I'm not (yet?) acclimated to living in an area in which guns are more commonplace than in my previous East coast digs; it could also be because I teach Property, which apparently drives some to violent behaviour.

Flippancy aside, it's not at all clear to me that various standards in granting licenses for handguns are stringent enough to instill confidence in a policy permitting concealed weapons on campus. Would you be more comfortable knowing there were students licensed to carry weapons doing so on campus? Do you think tragedies such as the one which befell Virginia Tech could be prevented in such a situation? How might the classroom dynamic change if weapons were permitted?

She So Loved Solove!

Here's an interesting review of Dan Solove's new book The Future of Reputation by pseudonymous blogger Belle Lettre.

Revising McCarthyism?

I have been having an exchange with David Bernstein of the Volokh Conspiracy about his revisionist claims about the so-called "McCarthy Era" here.  Those of you interested in legal history, historical method, and twentieth-century civil rights history might wish to check it out.

Luban on legal ethics and human dignity

I'm a little late noticing, but I see, over at "Balkinization", that my legal-ethics teacher, David Luban, has a new book out, "Legal Ethics and Human Dignity."  Here is his post, introducing the book.  I'm really looking forward to reading it.  (David was not only a caring and challenging teacher, he also introduced me, during my second year of law school, to the inspiring legal-ethics work of my current colleague, Tom Shaffer.)  Any reviews from Prawfsblawg readers?

Is Bill Maher's Audience A Greek Chorus?

Ann Althouse here links to some interesting live TV footage of 9/11 Truthers disrupting, and being kicked out of, Bill Maher's HBO show.

It's right that a host would throw out any disruptive audience member regardless of the nature of the disruption.   But I found one interesting moment in Maher's reaction that complicates things a bit.  It was when Maher exasperatedly said, "'Audience' comes from the Latin word meaning 'to listen.'"  A funny line at a tense moment, to be sure.  It showed Maher's skill as an entertainer that he was able to be funny at a moment like that while still asserting control over his show.

But it did get me thinking about the audience in these sorts of shows -- shows that mix political opinion with comedy, like Jon Stewart's and Steven Colbert's.  On these shows (unlike, say a sitcom with a live studio audience) the role of the audience is not merely "to listen."  The audience is instead a character on these shows -- and the shows' directors and stars very much use them that way.  These audiences audibly react -- often in quite predictable ways -- to the political opinions that the show and its guests present.  The audiences boo and hiss jokes and opinions of which they disapprove (which are very often jokes and opinions advancing a perspective friendly to the policies of the current Administration) and react with glee and approval to the sauciest of the jokes and opinions with which they agree (which are very often jokes and opinions critical of the policies of the current Administration).  Sometimes when the audience is being tough on a guest, the guest will either respond to the audience, or turn to the host and criticize it.  At times the audience and the guest will get into a short back-and-forth. 

My point here does not depend on the particular political alignment of the audience; it is instead that the audience on these shows really is a character -- not just a group of "listeners."

Does this fact make the audience a public forum, or make it appropriate for individual audience members to speak?  No, it doesn't.  But it does suggest that something more complex is going on on these shows than their hosts might have us believe -- something that places the disruptive 9/11 Truthers in at least a slightly different context than might first appear.

A Deep Challenge to the Law and Economics Movement: Could the Legal Literature Be Missing an Entire Standpoint?

When Larry Solum recently had occasion to comment on the vitality of contemporary legal philosophy, he observed is that there has been a "reengagement of normative legal theory with sophisticated work in moral and political philosophy." His first example of this was a recent symposium I organized on Stephen Darwall's The Second-Person Standpoint: Morality, Respect, and Accountability.  Solum went on to observe that, in his view, "if you are paying attention to anyone other than the most senior legal philosophers, it is obvious that normative theorizing about law is in one of its most interesting and dynamic phases."

But what exactly is the importance of Darwall's recent work on the so-called "second-person standpoint" for the law?  (For answers, see here, here, and here--or just continue reading.)

The answer: quite a lot, in my view, because Darwall's work suggests that the law and economics movement cannot account for fundamental features of what make legal obligations legal obligations.  Principles of efficiency-maximization are fundamentally first and third-personal in form (e.g., they engage questions like "How should I act," and "What is true of the world"), whereas legal obligations necessarily give rise to what Darwall calls the "second-personal" standing to raise claims or grievances against one another or to demand compliance.  (I take up the second-person standpoint toward you when I look you in the eye, and say: "How could you have done that to me?").  This second-personal standing cannot, moreover, be reduced to or derived from any combination of first and third personal practical reasoning.  We ask and answer these questions, instead, from a distinctive and irreducibly second-personal standpoint.  But this means that there are fundamental features of legal obligations in all areas of the law--including those areas of the private law where the law and economics movement has proven most successful--that evade economic analysis. 

For a brief introduction to these developments, see this Introduction to the Symposium that Larry Solum mentioned.  I have also extended some of Darwall's thoughts to issues in contract law and analytic jurisprudence.  I may discuss some of these ideas in more detail in later posts.

After all, every natural language contains grammatical forms for the first, second, and third person--and yet legal academia has thus far pictured practical reasoning as almost purely first and third personal in form.  In my view, a proper appreciation of these facts is thus likely to have widespread implications for the law.  And I believe that Darwall's recent move to Yale--where he will almost certainly have greater contact with the Law School--should help expedite our understanding of these implications within legal academia. 

Is Dumbledore gay simply because Rowling says he is?

J.K. Rowling recently announced that Albus Dumbledore, the head of the  Hogwarts School of Wizardry and Witchcraft, is gay. Apparently she believes that Dumbledore's qualities are under her control. I disagree. True, she is the author of the books in which Dumbledore is a character. But at this point it is not fully under her control what qualities Dumbledore has. She could say (or even publish a book in which) Dumbledore was actually a robot controlled by the CIA. But it would remain false that Dumbledore is  a robot controlled by the CIA.

Dumbledore can be gay only if this is narratively compatible with what Rowling has said about Dumbledore in the past. [In my original post I claimed that there was no narrative compatibility here, but I've been convinced otherwise. Why the mistake? Was it heterocentrism? Maybe. Was it that I haven't read book 7? Definitely. But am I the only one who finds Rowling's apparent view - that she can simply announce who's gay or who marries whom - problematic?]

More on Edwards's Citizen Congress

John Gastil has more on Edwards's proposal for a Citizen Congress in The Seattle Times.  Prior coverage is here.

"American Inquisition": A Portrait of a "Disloyal" American

In yesterday's post on my new book "American Inquisition:  The Hunt for Japanese American Disloyalty in World War II," I described the mechanics of the Japanese American Joint Board's "deliberations" (and I use that word loosely) on the loyalty of American citizens of Japanese ancestry.  The system was designed to convert the most outward and stereotyped markers of "American" and "Japanese" cultural, religious, linguistic, and business identity into a loyalty finding.

Before talking a bit about what happened after the Joint Board fell apart, which I'll do later today, I thought it might be useful to make this abstract system a bit more real by illustrating its impact on a real person's life. 

Consider the case of Harry Iba. 

He was born to Japanese immigrant parents in Los Angeles in 1915.  His family was Buddhist.  He did not hold dual citizenship -- just American -- and he never traveled to Japan as a child.  His one trip to Japan was at age 22 in 1937, when he went on a sightseeing trip there with a number of boys in a judo club.

Unlike many Japanese Americans, Harry Iba never attended a Japanese language after-school program, and described his spoken Japanese as only "fair."  He graduated from high school in Los Angeles in 1934 and went to work in the family nursery business.  By 1943, he was incarcerated at the Amache Relocation Center in eastern Colorado with his parents.  One older brother was in the U.S. Army and another was in medical school in Boston.

Harry Iba subscribed to the Los Angeles Times, the Examiner, Reader's Digest, Time, Life, Sunset, and Popular Mechanics.  He liked to play football, ping-pong, and outdoor sports.  He collected camellia plants.

On the loyalty questionnaire he filled out at Amache, he answered "yes" to the two key questions:  he was willing to "forswear allegiance to the Emperor of Japan" and to "serve in the U.S. armed forces on combat duty wherever ordered."

A number of white Americans, including his lawyer and a former landlord, wrote glowing letters of reference about his loyalty.

He reported on his loyalty questionnaire that he had no accounts in foreign banks, but a search of bank records revealed that his parents had set up three accounts -- one in his name, one jointly in his and his mother's names, and one as a trust account with his mother as trustee -- in amounts totaling about $3500.

At its meeting on August 19, 1943, over the dissent of the representative from the civilian War Relocation Authority, the Japanese American Joint Board made an adverse finding on Harry Iba's loyalty and recommended his indefinite detention.

Is Justice Scalia a "Catholic" judge?

He says no.  I say, "actually, yes."

"American Inquisition": Buddhists Lose One Point; Christians Gain Two

I've been blogging this week about the findings and claims in my new book "American Inquisition:  The Hunt for Japanese American Disloyalty in World War II."  In my most recent post, I sketched a picture of how the government went about gathering data on the loyalties of the incarcerated Japanese Americans.

With data in hand, the government next confronted the problem of processing it.  This task initially fell to a loyalty tribunal that the War Department created specifically for this purpose:  the Japanese American Joint Board ("JAJB"). 

The JAJB was a tribunal with voting representatives from one civilian agency (the War Relocation Authority, which ran the "relocation centers" where Japanese Americans were detained) and a number of military units, including the Provost Marshal General's Office ("PMGO") (which was responsible for industrial security).  The FBI was to have been a voting member as well, but J. Edgar Hoover pulled his representative out after just a few weeks.

If you have ever been on, say, an admissions committee or a hiring committee, you will quickly recognize the problem that the JAJB faced.  It had tens of thousands of loyalty files to review, but it lacked the time and manpower carefully to review each file.  So it did what admissions and hiring committees do in these situations:  it tried to come up with a template that would allow it to process the files without having to review each one.

The first idea was a point system.  Bureaucrats in the PMGO would go through individual files – especially the loyalty questionnaires that the internees had filled out – and assign positive and negative point values to the answers, producing a net loyalty score for each file.

So, for example, a Japanese American who was a Christian got a plus-2; a Japanese American who was a Buddhist got a minus-1.  If he was "an instructor in Japanese hobbies or sports" such as judo, he got a minus-2; if he was "an instructor in [an] American sport or hobby," he got a plus-2.  For each Japanese-American periodical he received, he got a minus-1.  If he'd never traveled to Japan, he got a plus-1.  One trip to Japan earned him a minus-1.  Two trips to Japan got him a minus-3. More than three years in a Japanese-language after-school program in the United States got him a minus-3. And so on.

You get the idea.

For reasons that the archival record does not disclose, the JAJB ditched the point system after a while and shifted instead to a system that looked for particular patterns of factors and then broke the files into three large groups – a "white" group that merited an automatic stamp of loyalty, a "black" group that merited an automatic stamp of disloyalty, and a "brown" or "tan" group that required case-by-case scrutiny of files. (Yes, that's right: the color between "black" and "white" was not "gray" but "brown.")

Using this system, the JAJB processed files for well over a year.

It ended up condemning more than one in every four American citizens of Japanese ancestry as disloyal.

This was not, however, the final word on Japanese Americans' loyalties in World War II. The JAJB was so wracked by conflict between its civilian member, the War Relocation Authority, and its military members, that its authority quickly slipped away. By the end of 1943, as a practical matter, the constituent agencies on the JAJB were quietly making their own loyalty judgments and disregarding the conclusions of the JAJB.

More on that later, or tomorrow.

Announcing: The Future of Reputation

I'm pleased to announce the publication of my friend Dan Solove's book, The Future of Reputation. As some of you know, Dan (who teaches privacy law at GW) got his start in the blogworld by guest-blogging on Prawfs a couple years back and he has since helped spearhead the Concurring Opinions blog, which has done fantastically well, to the credit of Dan and his partners.  The blogging experience has clearly been a source of scholarly inspiration for him, as his new book about "gossip, rumor, and privacy on the internet" draws a lot on the insights gathered while blogging.

Happily, the book is published by Yale University Press and is currently available for only $16.32 from Amazon.  You can download the first chapter for free here. It's called "When Poop Goes Primetime," which of course has nothing to do with the well-deserved attention paid to the content of the book!

There is a chapter on shaming on the internet, and when I get to reading it, I may post some more reflections. In the meantime, congrats, Dan, on the launch of this very cool-looking book.

More on Pragmatism and Originalism

David Law (USD/UCSD) and David McGowan (USD) have put a few more nails in the coffin of McGinnis & Rappaport's recent effort to marry pragmatism and originalism in the Northwestern University Law Review's Colloquy; the first part of their reply is up at the Colloquy.  Some of their points expand upon points I made 7 months ago in the same venue; others are wholly new reasons to reject McGinnis & Rappaport's enterprise.  I agree with all of their arguments and think they did a wonderful job.

Previous coverage of the debate can be found here, here, and here.

Is a Popular Branch of Government Really on the Horizon?

You might have thought so if you listened to John Edwards's speech on Saturday.  Here is some coverage of Edwards's call for a Citizen Congress.  Archon Fung published an op-ed in the Boston Globe on the subject today.

Needless to say, I'm very enthusiastic about the proposal -- which resembles, in part, the popular branch of government I've been arguing for since 2002.

Market Advice: Job Talks to Avoid

Since it's that time of year again, I thought I'd link to my previous compilation of the top ten topics to avoid in a job talk.  Further topics are welcome.

The Hiring Process and "Cooking for a Job"

It's the time of year when law-blogs post advice for candidates who will be attending next week's "meat market."  Here's an excellent example from Daniel Solove at CoOp.  My view is that as welcome as such advice is, we really ought to be thinking about what advice we should be offering the interviewers as well.  To that end, and for both candidates and interviewers alike, let me again recommend Martha Nussbaum's article Cooking for a Job: The Law School Hiring Process.  I don't have a free link, but it can be found at 1 Green Bag (2d) 253 (1998).  Some of its advice is dated; among other things, most candidates have now written a lot more, although it is still an open question how carefully all schools read that material, and in what manner they evaluate it.  But the fundamental question Nussbaum poses -- is the hiring process "effective in identifying good scholars, as opposed to good rhetoricians?" -- is still entirely pertinent.  Like Nussbaum, I think the answer to this question is still arguably "no."

Nussbaum argues that in the law school hiring process, "a certain type of individual, who combines obsequiousness with glibness and aggressiveness, is disproportionately (and disgustingly) in evidence in the academic hiring process of the legal academy."  "On the other hand," she adds, "shy or contemplative people are underrepresented -- not necessarily, I think, because such people don't make outstanding legal scholars."  She adds, in a similar vein, that "[a]ggressiveness, a certain supple glibness, these are the things that get you through [the initial interview process], although of course you have to know something too. . . . Candidates seem to think that quickness, glibness, and aggressiveness are virtues, and that reflectiveness, quietness, and uncertainty are vices.  And so it frequently turns out." 

I think all these points are still both importantly true (though they're not the whole story, of course) and endemic to a broader range of activities in the legal academy, including scholarship.  (See also Dan Farber on the "play of brilliance" in constitutional scholarship.  See also, generally, law-blogging.)  And they do have effects: as I related in an earlier post recommending Nussbaum's article, every year I hear from hiring committees that invited back the "quickest," "brightest," and "best-credentialed" candidates rather than the ones who were hesitant, humble, or seemed to hide their light under a bushel, and were disappointed by a shallow job-talk.

Nussbaum's article, in my view, remains a must-read for both candidates and hiring committees.  For candidates, alas, it offers a perverse lesson in how to succeed at the game: be quick, bright, glib, and aggressive.  For hiring committees, it is a timely reminder to think about what you want from your would-be colleagues, and about what the nature of the legal academic enterprise should be, rather than asking yourself what the quick, bright, glib, aggressive hiring committees down the hall are doing.

If I may solicit comments: What other advice would you offer hiring committees?  What do you think hiring committees are generally looking for, and what should they be looking for?  What do they do well at the hiring conference, and what do they do poorly?  What would you ask them to remember before stepping into the interview room?  And am I right to say that hiring committees often search for jewels in Washington and find mere glass baubles when they bring them back for the job-talk?  Alas, it's too late to address what hiring committees might do differently in sifting through FAR forms. 

Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics at Harvard Law School

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All application materials must be submitted electronically.  The final application deadline is November 15, 2007.

"American Inquisition": How The Government Got What It Thought Was "The Goods" On Japanese Americans

In my first post about the claims in my new book "American Inquisition:  The Hunt for Japanese American Disloyalty in World War II," I explained how, by early 1943, a complex set of pressures led the federal government to retreat from its initial view that sifting "loyal" from "disloyal" Japanese Americans was impossible.

Having decided to sift, the government then confronted an enormous logistical problem:  how to investigate and pass judgment on the more than 40,000 adult U.S. citizens of Japanese ancestry who were languishing in the so-called "relocation centers" where they were detained?

It was military agencies that took the lead on gathering intelligence on Japanese Americans, and there was one thing that these agencies were quite convinced they could not do -- ask the Japanese Americans themselves, or people who knew them.  "Because of the inscrutability of the Japanese, their reticence, clannishness and other Oriental traits" said the officer training investigators, "[Japanese Americans] very rarely take white people into their confidence.  The result of the foregoing is that references, neighbors, employers and acquaintances  are not considered as good a source of information in the Japanese case as in the average case."

What's more, military investigators were instructed that "it is hard, very hard, for a citizen born of Japanese parents in this country, particularly on the West Coast, to feel loyal to the United States of America," whereas it was "easy for him to feel that he is at heart Japanese and not American even though he has never seen Japan."

The investigation of Japanese American loyalty went in two principal directions.  On the West Coast, investigators in the Western Defense Command pored over Japanese American newspapers, looking for articles naming people who'd been involved before the war in Japanese business and cultural associations, Buddhist churches, Shinto temples, judo clubs, and the like, and who had made donations to Japanese causes.  They also mined the seized records of West Coast branches of Japanese banks, listing every person who held a certificate of deposit in yen.

And in the camps themselves, military teams required all internees to fill out a four-page questionnaire that covered educational background, work experience, reading habits, religion, Japanese language abilities, hobbies, and the like.  The questionnaires also asked the American citizens whether they were willing to "forswear" allegiance to the Emperor of Japan (an allegiance they had never sworn in the first place) and whether they were willing to serve on combat duty in the U.S. armed forces "wherever ordered."

This was the raw data -- in rare cases supplemented with sketchy information from the FBI or Naval Intelligence -- that the government used to decide which Japanese Americans were "loyal" and which "disloyal."

But it was only raw data; the government then faced the problem of how to collate and process the data efficiently in more than 40,000 individual cases.  More on that later, or tomorrow.

Advice for Dean Chemerinsky, cont'd

A few days ago, I linked to some advice that (former Dean and now) Prof. Dan Rodriguez offered to Dean Erwin Chemerinsky.  Dan had suggested that "[f]aculty members should be encouraged by their visionary new dean to think of themselves as stakeholders, as investors in the preliminary and long-term financial well-being of this law school."  This is, to me, an attractive suggestion.  For me, it matters a lot that I feel invested in (and invited to contribute to) the good of my institution and the flourishing of its mission.  So, in response to Dan's advice, I asked "what this would mean, day to day, and also what 'being a stakeholder' would demand of [faculty]."

In the comments box (which has, unfortunately, become cluttered with robot-spam), Dan provided three answers:  First, "faculty members would participate, without abject begging by the dean, actively in alumni relations activities."  Sounds good.  Second, "involvement in real fundraising[.]"   This also seems like a good idea, with the caveat that with greater faculty involvement in fundraising will (or, at least, should) come greater faculty "say" in the school's investment. planning, and spending decisions.  Are Deans up to sharing these decisions, and are faculty up to helping to make them?  Finally, "faculty members should be attuned, in configuring their academic agenda, particularly with respect to scholarship . . . the application of their work to real-world social, economic, and political problems[.]"  On the one hand, this seems entirely sensible.  There's no reason why scholars -- whose work often has "real-world" applications that go unnoticed or un-understood by outsiders -- cannot find ways to educate the law-school's various constituencies about those applications.  That said, I'm not sure what I think about the suggestion (which, of course, Dan might not have been making) that faculty should design their research projects, or construct their research interests, around the goal of producing such applications.

"American Inquisition": A New Study of the Inner Workings of the Japanese American Internment

I'm happy to announce that Monday, October 15 is the official publication date of my new book "American Inquisition:  The Hunt for Japanese American Disloyalty in World War II."  It's an account of the secret inner mechanisms of racism within the episode we call the Japanese American internment of World War II.

I ground the book in extensive new archival research in the records of the civilian and military agencies that passed judgment on the loyalties of American citizens of Japanese ancestry.  As historian Roger Daniels says, the book presents a new story of "bad news from the good war."

I'll be blogging about the book's claims here over the next several days.  Today, I'll start things off by offering a very brief account of how the federal government ended up in the business of passing judgment on the loyalty of more than 40,000 U.S. citizens of Japanese ancestry between 1943 and 1945.

If you've read Snow Falling on Cedars or seen The War, or have read or taught Korematsu v. United States, you know that a presumption of disloyalty forced the entire Japanese population of the West Coast – citizens and aliens alike – out of their homes and behind barbed wire in the late winter of 1942. The presumption was racial. "The Japanese race is an enemy race," said General John DeWitt of the Western Defense Command in explaining his decision to evict just the population of Japanese ancestry. "It was impossible to establish the identity of the loyal and the disloyal with any degree of safety. It was not there was insufficient time in which to make such a determination; it was simply a matter of facing the realities that a positive determination could not be made, that an exact separation of the 'sheep from the goats' was unfeasible."

Within a year, a set of pressures from both inside and outside the camps forced the government to reverse its position and try to separate the "sheep from the goats."

The pressures were complex. On the one hand, there were strong pressures to free some of the internees. Western farmers needed internees released to work their fields. The War Relocation Authority ("WRA"), which ran the camps, wanted to begin "relocating" internees into jobs in towns and cities across the central and eastern United States. And the military wanted to trawl the camps for volunteers into the segregated unit that would become the fabled 442nd Regimental Combat Team.

On the other hand, there were strong pressures to push some of the internees deeper into incarceration. The War Relocation Authority was running ten small cities and needed a mechanism for forcing those it viewed as "troublemakers" into segregation. The WRA was also setting up a courtroom defense to the pending habeas corpus case of Ex parte Endo, which challenged the detention of Japanese Americans, and needed evidence of disloyalty to bolster its legal theory supporting the detention program. In addition, occasional news articles in the national press alleging that the WRA was "coddling" the internees led to public demands for a crackdown. Finally, those within the military who had insisted at the outset that there was no way to tell a loyal from a disloyal Japanese American lobbied hard against release of internees and for the segregation of many internees into something approaching lockdown.

These pressures may have come from different places and pushed in different directions, but they shared one thing: a focus on "loyalty" and "disloyalty" as the deciding factor. All of the decisions about freedom and confinement would turn on an evaluation of the "loyalty" or "disloyalty" of the interned American citizens.

Later, or perhaps tomorrow, I'll continue this sorry tale with a quick look at how the government went about gathering the information on which it would rely for its loyalty inquests.

Questions? Comments? Please leave a comment or drop me a line.

Why Evolutionary Biology is Relevant to the Law: A Challenge to the Gruter Institute & to Brian Leiter/Michael Weisberg

Hello all.  I have been planning on blogging for some time now, but have gotten distracted by one thing after another.  I apologize for the delays.  For my inaugural post, I thought I would comment on a topic that is of special interest to me: evolutionary psychology and the law, and the piece that Brian Leiter and Michael Weisberg (hereinafter Leiter) have recently been working on entitled “Why Evolutionary Biology is (so far) Irrelevant to Law.”

   

Let me start by placing my cards on the table.  I myself spent a good deal of time in my dissertation (in philosophy, from the University of Michigan) drawing on, and extending, contemporary advances in evolutionary psychology and evolutionary game theory to defend a number of claims that I believe are highly relevant to the law.  I nevertheless began my philosophical career as a staunch and vigorous skeptic that any such connection might exist, and this skepticism was borne of a number of concerns that I believe Leiter shares.  Have I shed those concerns?  No, but, after a great amount of immersion in the topics, I have begun to think that there are also some promising avenues for establishing a link.  My reaction to Leiter’s piece is thus complicated and bifurcated.  On the one hand, I believe that the types of criticisms he has produced are deeply valuable and important—indeed, in ways that outstrip their truth-values in a number of senses that I will explain.  On the other, I do not believe that Leiter has established anything nearly as broad as the irrelevance of evolutionary biology to the law (even “so far”), and I would hate for promising avenues to go unexplored on premature grounds.  So much of what I’ll be trying to talk about here is how to separate the wheat from the chaff: both from Leiter’s critical piece, and from contemporary advances in evolutionary psychology.  In the process, I’ll offer some concrete examples of the relevance of evolutionary biology to the law (many of which are detailed HERE, in my piece The Deep Structure of Law and Morality), and I’ll end with some positive suggestions about how work in this area might advance.

Leiter’s piece has received quite a bit of recent attention in legal academic circles, and this is partly because his thesis is of special local interest: it purports to undermine an emerging intellectual paradigm within legal academia.  I nevertheless prefer to view Leiter’s piece as part of a much longer and more venerable tradition of what I’ll call “precautionary” or “debunking” reactions to excessive normative and/or social claims that have been purportedly justified on evolutionary grounds.  I am reminded, here, of what Phil Kitcher has aptly described as the “history of brave, but disastrous, ventures into evolutionary ethics”; and also of a rather dismal list of historical events, including: (i) the eugenics movement, which drew heavily on evolutionary conceptions of fitness purportedly to justify the intentional and systematic eradication of some persons from our ongoing gene-pool; (ii) Herbert Spencer’s claim that laissez-faire economics could be justified in terms of evolutionary concepts like survival of the fittest; and (iii) the uses of evolutionary theory purportedly to justify everything from sexist gender-based hierarchies, to ethnical cleansing and forced sterilizations of the poor.  Now, anyone well-acquainted with both philosophical standards of moral argumentation and the full facts about evolutionary theory will know that all of the above “evolutionary justifications” were nothing more than shams.  But that’s just the problem: not everyone is (indeed, very few people are) immersed enough in both of these difficult fields to discern all the problems.  When a situation like this arises, there is the unfortunate possibility that people will be able to use poorly reasoned and false forms of argumentation to give their pre-existing ideological goals the unearned look of scientific authority.  And the results can—and have—been disastrous. 

What the above facts point to, I think, is the need for more highly developed mechanisms to police the normative and social claims that are sometimes made on the basis of evolutionary biology.  Here too, however, there are a number of obstacles that we should be aware of, and that arise in part from the interdisciplinary nature of such claims, given the way that existing disciplines have been divided.  Evolutionary biologists, for example, are typically trained to develop and test empirical hypotheses and to engage in empirical theory-construction of a particular kind.  But they are not trained, in the way that every moral and legal philosopher must be, to subject normative claims to rigorous scrutiny.  Nor are they trained in the way that many social scientists and lawyers are to understand the intricacies and nuances of important social phenomena.  (And of course, the relevant reverse propositions are also true.)  It can thus require immersion in a number of fields, with different methodologies and paradigms of knowledge production, to be able to perform the appropriate policing.  Moreover—and I think this is key for us to understand within the legal academy—legal academic publishing is presently an area where the general problem under discussion can arise with incredible force and possibility of ill.  I say this for a number of reasons: (1) because our field is particularly poor at policing the quality of argumentation that appears in our journals (for reasons that are well-known and need not be rehearsed here); (2) because this problem is especially acute when it comes to the kind of advanced interdisciplinary work that would be needed to produce helpful connections between evolutionary theory and the law; (3) because we are nevertheless asked to churn out normative proposals in legal publications, almost as a matter of course; and (4) because our normative proposals can, by virtue of our positions as authorities in our field, end up having large-scale effects on the law, and, hence, on many people’s lives.  In light of facts like these, it seems clear to me that we need policing here more than ever.  And it is for this reason that I take critical work like Leiter’s to represent a deeply important and helpful part of any useful emerging phenomenon that might be called “evolutionary biology and the law.”  This is also why I believe that the precautionary value of such criticisms can outstrip their truth-values in important ways, and why I think work like Leiter’s may not even go far enough, in the end, to play the full precautionary role that is needed.

      

So much, then, for the precautionary and social importance of work like Leiter’s.  When turning to substance, I want to make three main points about Leiter’s piece that should bear on the potential of this emerging field.  First, as discussed more fully below, the arguments Leiter makes in his article actually have a much narrower target (re: the class of claims made by evolutionary psychology) than the broad, precautionary reach of his title might suggest.  Second, the time-indexed nature of Leiter’s criticisms (i.e., that evolutionary biology is “so far” irrelevant to the law) suggests that his criticisms are focused on evolutionary biology viewed as a set of empirically well-confirmed propositions about a specific subject matter rather than as a procedure for the production of such knowledge.  And third, many of Leiter’s criticisms have what I’ll call an ‘intesticine’ quality to them: they would, in an ideal world, be viewed as voicing standards of rigor that should guide the internal processes of knowledge production in these areas, rather than as arguments that undermine the very possibility or promise of this interdisciplinary sub-field.

      

Beginning with the first point, a close read of Leiter’s piece suggests that the target of his criticism is actually much narrower than the title of his piece might suggest.  At the end of the day, Leiter’s arguments challenge only the proposition that (*) there are any currently well-confirmed findings in evolutionary psychology that can be used to establish the non-plasticity of any behaviors.  If one assumes—as Leiter, following some of the people he criticizes, does—that the only (or even primary) way that evolutionary psychology might be relevant to the law is if it can help establish or identify certain behaviors that are non-plastic, then Leiter’s arguments might have the broad ramifications that his title suggests.  But there are other ways that evolutionary psychology might be relevant to the law, which openly assume the plasticity of human behavior.  Here are some examples from my own work:

   

1.                   Evolutionary psychology might be used to help us identify and characterize the structural features of distinctive psychological capacities that we have, such as our ability to identify and respond to obligations.  In my own work entitled The Deep Structure of Law and Morality, I draw on evolutionary pscyhology to do just this, but I am also careful to observe that our sense of obligation appears to be deeply plastic and flexible in terms of content, and that we are also free in a very real sense to develop legal proposals or systems that do not aim to engage this natural sense of obligation in any way.  Insofar as the law engages our natural sense of obligation (as it does in numerous ways), however, it can be very helpful to understand better about how this capacity functions and displays itself in our lives. 

   

2.                   Developments like those discussed in the last paragraph can serve as a powerful antidote to assumptions that are sometimes made in the social sciences but that are completely unconfirmed and, hence, pseudo-scientific.  Here I am thinking of the assumption that is so often made in legal academia that human action is fundamentally instrumental and the product of two distinct and separable capacities: i.e., one distinct “cognitive” capacity (which aims to form true beliefs  about the world), and one distinct “motivational” capacity (which inclines us to promote various desired states of affairs).  On this view—which is most often assumed in law and economics circles—people reason in fundamentally instrumental ways all the way down.  Moreover, although behavioral economists have recently developed a number of important criticisms of this so-called “homo economicus” model, and have shown how we often act instead on the basis of a number of identifiable heuristics or biases, these criticisms tend to leave unexamined the assumption that human action is fundamentally instrumental in nature. In The Deep Structure of Law and Morality, I have argued, to the contrary, that plausibility considerations arising from a sound understanding of evolutionary biology suggest that our sense of obligation functions in a much more complex way than this: it patterns our lives and social interactions in ways that are better understood as engaging fundamentally deontological attachments to rules and non-consequentialist relations to other persons.  Given the number of normative proposals in the legal literature that are currently premised on a different, and ultimately less evolutionarily plausible, set of behavioral assumptions, evolutionary psychology should be highly relevant as an antidote to some of the claims.  (To be clear, I do not mean to suggest that the recent claims made by behavioral economists are poorly confirmed.  I mean to point out that the homo-economicus model is poorly confirmed, and that behavioral economists have, for the most part, focused thus far on identifying empirical problems with this model that can be identified from within a fundamentally instrumental paradigm.  In my view, they have thus not yet fully grasped what I take to be the more fundamental problem with the instrumentality of the model itself—at least if it is meant as an exhaustive account of human behavior.) 

   

3.                  Similarly, evolutionary psychology might incline us to question the viability of normative proposals that would engage capacities like our natural sense of obligation, while trying to pick and choose parts of it that are hard for us to separate psychologically.  Here is how I put the point in The Deep Structure of Law and Morality: “On the other hand, a clear understanding of how these capacities function is likely to help clarify what would be involved with normative proposals that would engage these capacities.  Here, an analogy with language is again helpful.   The deep structure of language is—in Chomsky’s view—part of what gives us the capacity to understand and express the rich variety of thoughts that we see in all natural languages and to learn and use languages so naturally.  One might try to construct a system of communication for the same purpose that does not employ these natural capacities, but the evidence suggests that such systems of communication require excessive conscious processing and thought, are difficult to learn and unstable in human memory, and do not have nearly the richness and flexibility of expression of languages that directly employ our native linguistic capacities.  While our capacities to identify and respond appropriately to obligations may give us the freedom to understand obligations with any particular content, a similar point may apply to our moral and legal practices.  The attitudes that allow us to respond to moral and legal obligations are—for reasons [explained in the Article]—a bundle of psychological phenomena, which tend to come together as part of a distinctive syndrome.  Hence, while normative assessments about the appropriate content of morality and law may be useful, and while it may be useful to discuss the appropriate roles of morality and law in our lives, it may be very difficult for us to sustain normative proposals that would require engagement of parts of our moral and legal psychologies along with an abandonment of the rest.  As with the analogue in language, we may be able to respond to such normative proposals only haltingly, with great difficulty, or in an unstable manner.  If so, these are facts that we should understand about ourselves.  An understanding of these facts will likely bear on what normative questions about morality and law are genuine and live.”

   

4.                  Evolutionary psychology might help guide the formation of knowledge about human behavior, even when the knowledge itself is produced primarily through direct observations of behavior.  One of the very helpful points Leiter makes in his article is that it will often be unfruitful or otiose to try to establish facts about human behavior through evolutionary psychology when the same facts can be established much more easily, more directly, and more non-speculatively through ordinary observations of human behavior.  I agree.  Still, one of the things that evolutionary psychology can do is to help us place discrete observations of human behavior into a larger theoretical framework, which might, in turn, help guide further observational inquiries in ways that might be relevant to the law.  For example, we know that fathers are more prone (cross-culturally) to engage in higher rates of infanticide when a child does not look like his own.  If we were to hypothesize that this behavioral fact might reflect an evolutionary adaptation, then that hypothesis might help us identify underappreciated factors that would tend to trigger such behavior.  (For example, we might begin to look for features of a social situation that will tend to engage the father’s natural sense of parental affection and extend it to those who are not biologically related.)  If we were able to find such non-obvious triggers, then we might be able to reduce the instances of infanticide in ways that would not at first be obvious.  To find these triggers would, of course, require ordinary empirical observations of human behavior as well, but the point is that evolutionary psychology would help to guide our observational practices, not that it would establish empirical facts in the absence of such observations. 

    

5.                  Evolutionary psychology might be relevant for the legal analogue of what philosophers call ‘meta-ethics’: the study of the meaning or status of our normative claims.  In particular, there is a well-developed line of meta-ethical thought, which aims to account for the meanings of our normative language as expressive of various psychological attitudes that have motivational force.  One division between these so-called “expressivists” is over the precise psychological attitude that we purportedly express with our normative language, and evolutionary psychology might help to shed light on what the relevant attitude is (or attitudes are).  Similarly—and now contrary to what many of the expressivists in the current literature believe—it is possible that an evolutionary account of the causal etiology of our sense of obligation will show it to track certain natural features of the world.  If so, then evolutionary theory may help show how language that is expressive of our natural sense of obligation may nevertheless have cognitive content (an idea that I begin to explore in my dissertation, but which I have not yet put into publication).

    

This list is, of course, illustrative only, and could be extended with an appropriate amount of thought and creativity.  But as far as I can tell, nothing in Leiter’s piece undermines the possibilities just mentioned.  (In fairness to Leiter, I should say that, in an e-mail to me, he once said that he did not take the criticisms he was developing (at least in an earlier form) to bear on my work.  I would not want to assume that this is still his mature view, but Leiter does not target my work in his piece, so I would also not want to suggest that he is unaware of anything I have said so far, or would necessarily disagree.  Indeed, I suspect he is more concerned with the kind of potential problem that I discussed at the outset of this post.  And a close reading of his piece--as opposed to his title--suggests that he is well-aware of the narrow scope of his actual target.)

    

The second point I want to make about Leiter’s piece has to do with its focus.  Leiter attends primarly to the question whether evolutionary biology has yet produced any well-confirmed propositions that might be relevant to the non-plasticity of various human behaviors.  But when assessing the potential relevance of evolutionary biology to the law, especially at this early stage, I think it would be more helpful to think of evolutionary biology as a procedure for knowledge production, rather than as a set of well-confirmed propositions.  I say this because, for reasons already discussed, I do not believe that enough advanced interdisciplinary work has yet been done to identify potential ways that evolutionary biology might be relevant to the law, or to guide evolutionary research in ways that are likely to yield useful insights.  In my view, the promise and usefulness of this emerging paradigm will therefore likely depend critically on whether it can develop internal standards of rigor that will both (i) help its participants avoid many of the problems pitfalls that people like Leiter have identified and (ii) guide research in ways that have the highest likelihood of producing useful insights.

      

This brings me to my third and final point. If we were to view evolutionary biology as a procedure for knowledge production (with a specific subject matter), rather than as a set of propositions (about that subject matter), then I think we will want to reinterpret the upshot of many of Leiter’s criticisms.  Rather than viewing them as challenges to the viability of the emerging subfield, they should be construed as attempts to begin articulating some of the internal standards of rigor that should guide work in this field (much as formal logic has done for our ordinary processes of deductive reasoning).  A number of Leiter’s criticisms appear to me, for example, to point out things that anyone familiar with evolutionary biology should know: facts about how evolutionary theory does not necessarily posit natural selection as the only possible type of evolutionary explanation, facts about what would be required to establish a plausibel selectionist account of a behavior, facts about how biological explanations do not necessarily support inferences about the inflexibility of behavior, and so on.  To whatever extent people doing work in evolutionary biology and the law do not acknowledge such facts, this would thus seem to me to reflect a failure on their part, rather than a failure on the part of any genuine thinking about genuine evolutionary biology to produce genuine insights relevant to the law. Similarly, there can be an unfortunate tendency on the part of those who are less familiar with philosophical standards of moral argumentation to believe, falsely, that they can draw normative inferences from biology too easily.  (The opposite assumption--that biology can never be relevant to any normative claims--rests on a similarly unfortunate misinterpretation of the bearing of the is-ought gap on normative argumentation.)  Finally, I find that many moral philosophers are less than fully acquainted with many of the nuances of our normative practices than they could be.  They often suffer from what Wittgenstein once called “the philosopher’s disease”: namely, a one-sided diet of examples.”  (For example, they conceive of contracting on the model of promising, and then build their view of the morality of promising-keeping around the very simple case when one has made a promise and then decided arbitrarily to break it.)  But this is a disease that few familiar with the broad run of legal cases in a given area can sustain for long.  (No one familiar with the nuances of contract law could think it stands for the simple proposition that one ought to keep one's promises.  What about duress? Unconsionabality?  The vagaries of interpretation and discerning mutual assent?  Etc.)  If, however, Leiter’s piece is reinterpreted as helping to articulate standards of rigor that might help guide the “evolutionary biology and the law” paradigm—now viewed as a procedure for knowledge production of a specific kind, rather than a set of empirical propositions—then I do not think his work goes nearly far enough.  This is, of course, no criticism of Leiter himself, who cannot play the relevant policing role all on his own.  Though prolific in his postings and writings, Leiter is--after all--only one man.  (Or perhaps two, in this case, given Michael Weisberg's input.)

      

What I would therefore like to see, as part of the emerging “evolutionary biology and the law” movement, is the articulation of a set of standards of rigor that participants can subscribe to.  The standards would need to be thought out in an advanced interdisciplinary setting, with participants from a number of fields, including, at minimum, evolutionary psychology, evolutionary biology, legal studies, moral philosophy, the philosophy of science, and economics and behavioral economics.  We cannot rely on present degree conferral systems to produce the relevant proficiences, because the disciplines are themselves divided in ways that fail to produce the relevant interdisciplinary training in any systematic way.  In these circumstances, I believe it would be immensely helpful to develop an informal set of standards of analytical rigor for this type of work, for a number of reasons.  First, people could use these standards to quickly and easily expose errors that arise in rogue work in these areas—and without having to reinvent the wheel at each instance.  Second, the standards could be used to develop research projects and guide research to ensure that a broad set of problems are identified before people go off engaging in expensive research that is likely to prove fruitless.  Third, the articulation of such standards would give people who are interested in these areas something to grapple with and learn before making overly broad or unbased claims in a rush of excitement.  (I would love to see, for example, people indicating at the beginning of an article that they have internalized the set of standards in question, and that they either certify that their work is consistent with those standards, or, alternatively, that they disclaim adherence to one or more standard because they believe it is inappropriate for specific reasons.)  In my view, the development of such standards would do much not only to help police work like this in an arena that desperately needs better policing, but would also set the “evolutionary biology and the law” movement on a much firmer trajectory, with a very long shelf-life.  The project is needed, and would have great social value.

      

So where are standards like these likely to be best developed?  I have three words: The Gruter Institute.

    

Just last Spring, I was fortunate enough to be involved in the Gruter Institute’s Conference on Law, Biology and the Brain, and to see what an extraordinary group of thinkers that the Institute has been able to bring together.  The people represented the full range of cognate fields relevant to the present discussion, and the discussions were free from many of the interdisciplinary forms of rancor that one sometimes see when professionals from different disciplines get together.  Indeed, the level of the discussion was incredible, and the results of the discussions nothing less than thrilling.  Somewhat coincidentally, I recently received notice that the Gruter Institute has, in fact, obtained a $10 million, 3-year grant from the John D. and Catherine T. MacArthur Foundation, for a project aimed at integrating new developments in neuroscience into the U.S. legal system.  (See press release here.)  To do this, the Gruter Institute will apparently be working together with a group of scientists, legal scholars, jurists, and philosophers from across the country to work on an interdisciplinary basis on the project.  According to the press release, the Gruter Institute will lead education and outreach under the grant, and facilitate numerous yearly conferences aimed at educating state and federal judges and others in the legal arena about neuroscientific findings relevant to the law.  I am not sure whether the grant should be construed as covering developments in evolutionary psychology that are relevant to the law, but I sincerely hope that it does reach that far.  Even if it does not, the Gruter Institute has been creating precisely the kind of interdisciplinary forum that is in the best position, in my view, to develop the kinds of standards that I have in mind. 

    

I would therefore like to issue a challenge of kinds: I challenge the Gruter Institute to organize a conference dedicated to developing a clear set of internal standards of rigor to help place the emerging field of “evolutionary biology and the law” onto a firmer and more fruitful trajectory.  And I challenge Brian Leiter and Michael Weisberg either to participate in such a conference, or to reinterpret their own work so that it can be put into a form that would best inform such a debate.  And—of course—I would be more than happy to put my own two cents into the process at any relevant stage.

    

I welcome thoughts and/or reactions from all quarters.

Why no deontic logic?

I’m devoting my blogtime this month to talking about some of the peculiarities and prejudices of philosophy of law in the United States. My first topic was why American philosophers of law don’t talk about Hans Kelsen (see my three posts  and Brian Leiter’s and Larry Solum’s responses).

My second – and, as we shall see, related – topic is the following: Why don’t American philosophers of law talk about deontic logic?

Deontic logic is the branch of logic that deals with normative terms such as obligation, permission, and prohibition. The original motivation for the field was the recognition that certain deductive inferences involving sentences with these normative terms are possible. For example, the sentence "Paying one’s taxes is obligatory" is true only if the sentence "Not paying one's taxes is forbidden" is also true.

There are American philosophers, logicians, and computer scientists who do work in deontic logic. Roderick Chisholm (a philosopher at Brown) did important work in the field. It is striking, however, that those who work in the philosophy of law in this country have little to say on the topic. Interest is somewhat greater among philosophers of law in the UK. But it really increases as one moves to non-Anglophone countries.

Compare, for example, Legal Theory (arguably the premier journal for Anglo-American philosophers of law) and Ratio Juris (an English-language journal in the philosophy of law that primarily publishes articles by non-Anglophone authors). Legal Theory has published nothing on deontic logic (at least since 1999, which is as far back as I can go on-line). In contrast, Ratio Juris has articles on deontic logic by Italians (Volpe, Guastini, Mazzarese, Martino), Spaniards (Alarcon-Cabrera, Marin), Argentinians (Alchourron, Vernengo), Finns (von Wright, Niiniluoto), Swedes (Spaak, Lindahl, Odelstad), Poles (Wolenski, Opalek), Germans (Lehman), Austrians (Weinberger), and Britons (Coyle).

This is all the more striking because many American philosophers of law have gone through graduate programs in philosophy. A course in first-order predicate logic is usually required in such programs, and formal logic, although perhaps no longer as central to philosophy as it once one, is still very much a part of the field.

How are we to explain this difference? Consider how Brian Leiter explained the relative lack of interest in Kelsen among Anglophone philosophers of law. The reason, he argued, was that Kelsen had been shown to be mistaken: “[H.L.A.] Hart persuasively undermined the two most distinctive features of Kelsen's jurisprudence.”

And what explained the continued interest in Kelsen among non-Anglophone philosophers of law? Why didn't they recognize that Hart had undermined Kelsen? Some of the possibilities Leiter offered are: 1) that they are not “well-informed about Anglophone jurisprudence,” 2) their low “level of philosophical sophistication,” and 3) “issues of national pride and loyalty (sometimes an issue, one senses, in some German-language jurisprudential work when it comes to Kelsen).”

Now deontic logic has serious challenges, some of which may stand in the way of its being of significant use in the philosophy of law. But it can hardly be said that non-Anglophone philosophers of law are interested in deontic logic because they lack philosophical sophistication. If anyone is lacking philosophical sophistication, it’s the Americans.

As I indicated in my earlier posts, I don't think interest in Kelsen can be attributed to lack of philosophical sophistication either. Indeed, it is a significant fact that, among philosophers of law, interest in Kelsen and interest in deontic logic are closely correlated. They are at their lowest in the US, increase somewhat in the UK, and are at their height in the non-Anglophone world, particularly in Italy and Spanish-speaking countries. Ota Weinberger (Austria), Eugenio Bulygin (Argentina), and Norberto Bobbio (Italy) are three prominent examples of philosophers of law with a strong interest both in Kelsen and deontic logic.

I have already written on the connections I see between Kelsen's legal theory and attempts to uncover the formal qualities of a legal system (attempts that include, but are not limited to, deontic logic). I won't repeat these arguments here. But American philosophers of law should be open to the idea that it is we who are missing out on something, both when we ignore deontic logic and when we ignore Hans Kelsen.

Should I Be Offended by Ann Coulter?

Another typical Ann Coulter controversy has broken out.  This time the question is whether Coulter spoke offensively or even, as the interviewer seemed to suggest, anti-Semitically when she made the following comments in a recent interview, after being asked, in effect, what her perfect world would look like:

COULTER: Well, OK, take the Republican National Convention. People were happy. They're Christian. They're tolerant. They defend America, they —

DEUTSCH: Christian — so we should be Christian? It would be better if we were all Christian?

COULTER: Yes.

DEUTSCH: We should all be Christian?

COULTER: Yes. Would you like to come to church with me, Donny? * * * *

DEUTSCH: ...[Y]ou said I should not — we should just throw Judaism away and we should all be Christians, then, or —

COULTER: Yeah.

Assuming Coulter was speaking in good faith, were her comments offensive or anti-Semitic?  I think not.  I take it that Coulter's understanding of her faith is that the New Testament represents religious truth, that those who hold contrary religious views are thus wrong, and that, as she says elsewhere in the interview, Judaism is a complentary faith to Christianity but remains "unperfected" by its denial of the divinity of Christ.  I may or not share Coulter's views; I may or may not think that she is herself mistaken in her beliefs.  But that is not in itself a basis for being offended.

Of course, Coulter is not immune from criticism.  From a non-faith perspective, one might question Coulter's own religious premises.  From an intra-faith perspective, one might question whether Coulter was speaking out of a genuine Christian spirit of faith and humility, or whether she was trivializing her own faith by using it as a talking point or, worse, as a vehicle in the age-old game of "epater le bourgeois."  And from either perspective, one could certainly challenge Coulter's blanket description of Republican conventioneers as uniformly Christian; indeed, it is probably that statement that is the most offensive in the interview.  But simply to bear witness on a fundamental disagreement about matters of faith is not, I think, offensive in and of itself.

Note that Coulter is not saying that non-Christans are wicked; only that they are wrong on a fundamental question.  We often disagree with others on fundamental questions, and yet we are able to co-exist with and even admire them.  I assume this is true of Coulter, too, at least as to some religious matters.  People who hold strong convictions on fundamental questions may well think others who don't share those convictions are wrong, and ought, all things considered, to change their convictions; this is true not only for religious individuals but for atheists, and not only for religious questions but also for other fundamental issues.  (Some might argue that this latter category is different because those disagreements at least can be conducted through publicly accessible reasons; we've been over this ground here before, and I'll just repeat that I find this distinction neither as true nor, in any event, as significant as others may.)  Not all of these disagreements are occasions for offense, of course.  One might question whether Coulter was genuinely trying to air a fundamental difference with others on matters of faith, or whether she was merely engaging in what David Bernstein calls "chauvinism."  And one might simply find Coulter's statement to be just another example of her tedious showmanship; I fall into this category.  But in general, I am not inclined to take offense over such statements.  Not every public acknowledgement that people actually hold firm and even exclusive convictions on ultimate questions should be treated as offensive, divisive, or a "gaffe."          

Signing Off

If house guests, like fish, begin to stink on the third day, then I don't want to contemplate the odor that guest bloggers who stay 10 days beyond the end of their guest stint give off.  So I'll belatedly sign off here by  thanking Dan and the rest of the gang here for asking me to contribute this month.  I enjoyed it immensely.  I'll still be blogging over at MoneyLaw for those interested in the intersection of baseball and law school reform.

I'm sorry I never got around to posting the top 10 legal phrases that sound dirty but aren't, a list I've been compiling since I was a giggly first year law student hearing the phrase "permissive joinder" for the first time.  Oh well.  Always leave them wanting more.

Advice for Dean Chemerinsky

Over at Tax Prof Blog, Paul Caron has been gathering words of wisdom for U.C. Irvine's new law-school dean, Prof. Erwin Chemerinsky.  What do people think?  Tenure, teaching, and the first-year curriculum seem to be recurring topics, and also comparative advantage / institutional diversity / (genuine) ideological diversity. 

I thought that (former dean) Dan Rodriguez's suggestion was particularly interesting, and challenging:

[T]he law school should draw together, in a way that deans seldom do effectively, the faculty in the common enterprise of raising resources for initiatives, programs, and infrastructure that will enable UCI to prosper without fleecing their new law students and their families. Faculty members should be encouraged by their visionary new dean to think of themselves as stakeholders, as investors in the preliminary and long-term financial well-being of this law school. Developing programs of value to the region, creating outreach opportunities to help the community better understand law and its imbedded role in modern society, promoting faculty work in the media, nurturing networks of mutual advantage with law firms, corporations, and other universities in the U.S. and abroad . . . all these ideas and others can only be incubated and implemented with the resolve, commitment, and energy of faculty members. The dean is the chief fundraiser to be sure, but the faculty role is critical. Erwin has role modeled this behavior in his own career; teaching the imperative of like behavior in the service of UCI’s financial progress will be time well spent for the new dean.

A good idea?  How would work spent fundraising (or success at fundraising) figure into tenure-and-promotion decisions?   I like the idea of thinking of faculty as being among a law school's (indeed, any academic enterprise's) chief stakeholders, but I wonder what this would mean, day to day, and also what "being a stakeholder" would demand of us.  Would we be willing to do what it would take -- whatever that might be -- to deserve our "stake"?  Thoughts?

Article Length Limits: Further Results

Last year I posted an early analysis of the effects of the new law review article length limits.   These limits had been implemented in early 2005 following a joint policy statement by eleven of the top law reviews.  The statement made a commitment to "moderating the length of articles," and many of the reviews subsequently adopted formal policies about preferences or hard limitations on article length, based on pages or word count.  (The MacMillan Law Library at Emory has helpfully composed a list of such policies.)

My initial study last year found that, under the new policy, law review articles at a sample of the reviews had indeed gotten shorter.  Looking at 230 articles published in seven of the signatories (Columbia, Harvard, Penn, Stanford, Texas, Virginia, and Yale), I compared those published after the policy to those published in the two editorial cycles before it.  For those articles published in the 2005-2006 editorial season, the average length was 67 pages; in contrast, those articles published during the 2003-2005 seasons averaged 88 pages.

Has the trend toward shorter articles continued?

Yes.  In this year's analysis, I kept the focus on the same seven journals, but I extended the included articles both forward and backward in time.  Overall, I looked at a pool of 591 articles from 2000 up though the summer of 2007.  Here are the results:

• For the 168 articles published either in or after the 2005-2006 season (the "post-statement" period), the average length was 67 pages.  The median was also 67 pages (up from last year's 64 pages).
• Interestingly, for the 423 articles published between 2000 and 2005 (the "pre-statement" period), the average length was 83 pages.  This is five pages shorter than the 2003-2005 average of 88 pages.  Breaking the data down further, for the 240 articles published between 2000 and the 2002-2003 season, the average length was 82 pages.  In addition, if the 428-page article by Steven Shavell and Lewis Kaplow is removed from the sample, the articles published in 2000 and 2001 averaged 77 pages in length.  Thus, at these seven reviews it appears that the average size of the articles was increasing from 2000 to 2005.

In addition, eleven articles at these seven journals cracked the 100-page-barrier in the post-statement period.  Here is some data on these articles:

• The eleven articles represent only 6.5% of articles published during that time (11 out of 168).  In contrast, 23% of articles published in the pre-statement period (98 out of 423) were 100 pages or more.
• In the post-statement period,Yale Law Journal published four articles over 100 pages; Stanford Law Review published three; Texas Law Review published two; and Columbia Law Review and Virginia Law Review each published one.  Harvard Law Review's longest article has been 84 pages.
• Constitutional law was most strongly represented, with six of the articles touching on con law subjects.  Three of the articles touched on corporate law topics; two on criminal law; and one each on administrative law, property, immigration, and torts.  (I categorized four of the articles as having more than one subject.)
• Six of the eleven articles had an author that shared an institutional affiliation with the law review.

Thus, it appears that the trend towards shorter articles is continuing.  In addition, it appears that articles had been trending longer from 2000 to 2005.  I hope to do more follow-up studies in the future, with a focus on the relationship between subject matter and length.  I also hope to expand the study to include more reviews, including non-signatories.  If anyone has suggestions or further avenues of inquiry, please let me know.

A note on methodology: These seven reviews were initially chosen out of the eleven statement signatories because of their web resources.  The data set should include only at articles, not essays or book reviews.  Regarding the date of the law reviews, five of the seven reviews date their volumes by academic year (e.g., 2005-2006).  Two of the reviews -- Columbia and Virginia -- date their volumes by calendar year.  For these two reviews, I counted 2005 as a "pre-statement" year.  For the other reviews, I counted the 2005-2006 volume as "post-statement".

Voting by the 'Book'

Ramadan draws to a close this week. In the past several days, during this season of sacrifice, I've given considerable thought to the recent comments of John McCain--both his claim that the U.S. is a Christian country and his expressed discomfort with the thought of a Muslim for president. He feels, he said, that his faith likely offers 'better spiritual guidance' than that of a Muslim.

Such a stance may resonate with candidates who seek to gain the confidence of voters by espousing their religious views. Candidates whose beliefs do not mirror those of the American majority, however, may take a different tack (as did Keith Ellison, whose successful Congressional campaign was decidedly not about his adherence to Islam).

Is religious belief a proper decisive factor in determining for whom to vote? Those who answer this question in the affirmative may do so as part of a belief system that equates morality, ethical behaviour, and strength of character, for example, with religious adherence. I am not convinced, however, that such a consideration should be a driving force behind candidate selection in the voting booth (and not only because our moral compass may be a product of evolution). I may be old-fashioned, but I vote based on whether a candidate will uphold the Constitution, and whether, in the case of a president, any Supreme Court justice appointed will refrain from serving as a facilitator for an ideological agenda. And I am curious: If one is moved to vote for a candidate based on religious identity, what is it about that identity that indicates the candidate's willingness to perform, once elected, in a manner Constitutionally mandated?

If one refutes the notion that having a largely Christian population does not mean that a country is in fact Christian, then the response to the question posed above the break is pretty simple. But what of those Americans who are not Christian, but tend to vote with (to the extent possible) the candidates' claimed religion in mind? And what of those--nonbelievers or not--who wish to avoid consideration of a candidate's beliefs, but are nevertheless inundated with the matter?

Of course, this all presupposes that one has made it to the voting booth in the first place--a potentially faulty assumption given the uncertain future of voter ID laws. But more on that in a future post.

The Article II Argument

Although Electoral College Reform is dead in California, Peter Smith at the Co-Op tries to argue that the initiative to re-allocate electoral votes would have been unconstitutional.  He offers the Article II argument, expanding on Vik Amar's early spotting of the issue:

Article II, section 1, clause 2 of the Constitution provides that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in Congress.” The proposed measure in California will be decided not by the state legislature, but rather by the voters in a statewide ballot initiative. This end-run around the legislature—which, proponents of the measure obviously realize, is controlled by Democrats unwilling to sign away their party’s hopes in the next presidential election—seems flatly inconsistent with the language of Article II.

Read his whole post because it does a good job of making the case.  Here's my provisional reply:

I'm skeptical of the constitutional argument: Since Pacific States, the Court has conceded that it is up to Congress to decide if a state's use of the initiative and/or referendum takes too much power away from the state legislature. If the state legislature reserves the initiative power to the people -- as California's does -- it is hard to see why the people aren't effectively acting as the state legislature when they engage in passing a law controlling electoral vote distribution. As Stevens suggested in Bush v Gore, the Legislature has to be taken as it is found, with all the internal limitations on its power in its own state constitution. In theory, the state legislature could try to circumvent the hypothetical initiative's direction by certifying a different electoral distribution. But then it would be for Congress, not the Court, to decide which electoral votes to count. At least that is how Pacific States would suggest that the Court should handle the issue where it to arise.

The Article V parity argument is [the]  strongest one [for there is caselaw that citizens can't, by initiative, force a convention or a ratification] -- but there may be reasons to distinguish the two provisions. The easiest way is the use of the word "shall" in Article V -- and the word "may" (in connection with the word Legislature) in Article II.  One could make structural arguments too -- but the may/shall distinction is the cleanest.

UPDATE:  For more -- supportive of the lack of parity between Art II and Art V -- see this paper by Seth Barrett Tillman, pp. 925-27.   Here's the cite: Seth Barrett Tillman,  Betwixt Principle and Practice: Tara Ross's Defense of the Electoral College, 1 N.Y.U. J. of Law & Liberty 922 (2005) (Reviewing Tara Ross, Enlightened Democracy: The Case for the Electoral College (World Ahead Publishing 2004)). 

Three Faces of Deference in Rumsfeld v. FAIR

Last week I plugged my new paper Three Faces of Deference.  I noted that deference is a pervasive and yet undertheorized tool in constitutional law.  My paper attempts to provide some greater order in this area.  It also argues that one often neglected aspect of deference concerns the obligations of the deferred-to party, which ought to act in a way that is consistent with its invocation of deference.

Let me discuss another aspect of the paper, which may render some of the broader theoretical claims I make in the first section of the paper more concrete.  Why does it matter if the courts have failed to arrive at an especially clear and coherent picture of what it means to defer to an institution?  Well, one reason is that the cases that courts are confronted with quickly grow more complicated.  In particular, deference is often not simply a binary choice, in which a single institution comes before the court invoking deference, and either succeeds or fails in convincing the court to defer.  Rather, courts often confront competing claims to deference, in which two or more institutions in the same case each argue that the court should defer principally to them and not to the other institution.  Absent some reasonably clear framework for understanding deference, let alone for understanding how to evaluate competing claims to deference, courts will be poorly equipped to resolve these claims, and will resort to subterfuge or poor reasoning in deciding them.

In the paper I take the recent Solomon Amendment case, Rumsfeld v. FAIR, as an example.  FAIR also serves as an example of my other point: deference is not simply a license, but carries with it obligations on the part of the deferred-to party.  Even if the courts ought to defer to such an institution when it falls short of its obligations, that institution should still be subject to criticism from outside the courts.  Here's more from the abstract:

[In FAIR, ] the Supreme Court rejected a challenge to the Solomon Amendment, which requires law schools to provide access to campus for military recruiters. In FAIR, the Court faced claims of deference from Congress, acting pursuant to its military powers, and from the law schools, which invoked deference both as expressive associations and as universities. The Court's treatment of these competing claims to deference was unsatisfactory. The Court gave too much deference to Congress, and too little to the law schools. In particular, it failed to accord them the deference they deserved as universities, which serve as vital "First Amendment institutions" in the universe of public discourse. The Court's failure to soundly address these competing claims of deference bespeaks a larger failure to theorize the nature of deference and the occasions on which courts should defer. Thus underequipped, the Court was left at sea when confronting multiple institutions competing for deference in the same case. At the same time, the law schools themselves may have fallen short in meeting their own obligations as deferees.

The Demand and Supply of University Ethics

In today's Wall St. Journal, Peter Berkowitz laments that there is insufficient critical attention to the ethics of running a modern research university, especially in light of the flowering of programs and centers of ethics at schools across the country, such as Harvard, Yale, and Princeton's.  For what it's worth, this past Christmas break we had some discussion here on Prawfs about the ethical practice of legal scholarship, which provoked good and lively comments.

Because I have to finish prepping for class (another ethical obligation), I will just post some of the questions Peter provocatively and in some cases tendentiously poses from his piece today, and invite readers to share reactions or links to sources about some of the questions. Peter asks:

Is it proper for university disciplinary boards, often composed of faculty and administrators with no special knowledge of the  law, to investigate student accusations of sexual assault by fellow students, which involve crimes for which perpetrators can go to jail for decades?

Should universities have one set of rules and punishments  for students who plagiarize or pay others to write their term papers, and another -- and lesser -- set for professors who plagiarize or pay others to write their articles and books, or should students and faculty be held to the same tough standards of intellectual integrity?

How can universities respect both professors' academic freedom and students' right to be instructed in the diversity of opinions?

What is the proper balance in hiring, promotion, and tenure decisions between the need for transparency and accountability and the need for confidentiality?

What institutional arrangements give university trustees adequate independence from the administrators they review?

Is it consistent with their mission for university presses to publish books whose facts and footnotes they do not check?

In accordance with what principles may a university bar ROTC from campus because of the military's "don't ask, don't tell policy" concerning homosexuals, while inviting to campus a foreign leader whose country not only punishes private consensual homosexual sex but is the world's leading state sponsor of terrorism, and who himself denies the Holocaust and threatens to obliterate the sovereign state of Israel?

Update: Doug Berman asks an  ethics question of his own--should he sell his votes for reputation effects on US News?

Peer-Review Journal Round-Up for 2007

Along with our biannual law review article round-up, PrawfsBlawg will also be hosting a round-up of scholarship chosen for publication in a peer-review journal.  The peer-review cycle is quite different than the law review cycle.  Generally, peer-review journals accept submissions year-round.  However, most require exclusive submission, and the process of review generally takes several weeks (if not more).  And the process may continue even after the first review, as journals often tell the author(s) to "revise and resubmit" their piece.

I thought it would be useful to PrawfsBlawg readers to provide a snapshot of the peer-review submission process, as well as the articles that have been recently chosen for peer-review publication.  Thus, I am asking for news about law-related articles that were accepted for publication by a peer-review journal anytime in 2007.  If you wish to be included in this  round-up, please send an email to this address  with the following information:

• Author[s ]
• Title
• Name of the peer-review journal
• Volume and year of publication (if available)
• Link to your article at SSRN, Bepress, or institutional web site (if available)

I’ll collect the information and post the articles soon.  I'll also follow-up with updates through the end of the year as further submissions come in.  Thanks for participating.

Law Review Article Round-Up for the Fall 2007 Submission Cycle

Earlier this year, PrawfsBlawg hosted a round-up of law review articles that had been accepted during the spring submission cycle.  By the end of the cycle, we ended up with over 100 articles from the extremely productive members of the PrawfsBlawg community.  You can find those articles at this post; most listed articles have a link where you can find a draft of the article as well.

We will be continuing the series this fall with a round-up of current legal scholarship that has been placed during the fall submission cycle.  Law reviews generally accept articles for submission during two time periods: a spring cycle beginning in February and a fall cycle beginning in July/August. Although the articles have been submitted and accepted during the cycle, they may not come out for six months to a year from when they have been placed. SSRN and Bepress have filled in this gap to some extent, but at present there is no community forum for getting out the news of your new article and its (forthcoming) home.

In order to provide a community-wide source for news about submissions, I'll be compiling a list of articles that have been chosen for law review publication during this fall's submission cycle.  Just to clarify, I am looking only for articles, rather than essays, symposia pieces, or book reviews.  If you wish to be included in this fall's round-up, please send an email to this address (note: new address) with the following information:

• Author[s ]
• Title
• Law review or other journal placement
• Volume and year of publication (if available)
• Link to your article at SSRN, Bepress, or institutional web site (if available)

I’ll collect the information and post it in about a week, with updates to follow as further submissions come in.

Realism & Moralism in Political Theory

I'm very enthusiastic about a paper that Bill Galston has posted to Yale's Legal Theory Workshop page.  It details an ongoing and important debate in political theory that is fundamentally methodological between those who "do" political theory through a form of moral and quasi-utopian reasoning and those who root themselves in real politics and dismiss moralism as misguided.  In the final analysis, I think the camps are drawn too starkly in the paper -- and I have trouble endorsing the characterizations of some thinkers.  But to the extent that it will encourage political theorists to figure out where on the continuum they fall in the methodological debate, I think the paper will aid substantive theorizing in the long run.