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Monday, April 01, 2013

Doing Good, Doing Well, and Not Waiting in Line

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

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

Posted by Paul Horwitz on April 1, 2013 at 11:37 AM in Paul Horwitz | Permalink


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I concur with Mr. Leland Unruh, supra.

Posted by: Douglas Levene | Apr 7, 2013 8:08:48 AM

I write only to express gladness at having been referred to as "illustrious".

Posted by: Leland Unruh | Apr 5, 2013 4:27:11 PM

Larry David has weighed in on this matter, sort of:

Posted by: Jeff | Apr 3, 2013 1:24:57 PM

Paul, can we talk about my hypo instead of your confusing actual facts? I am okay with members of the Official Star Wars Fan Club getting to attend a special premiere even if you think it's too easy to join the Official Star Wars Fan Club. Does that answer your question?

Back to the actual facts, Dale Carpenter's confession that he joined the Supreme Court bar just to get in the shorter line does indeed undercut his outrage. (By the way, didn't he just write an amicus brief?) But I thought you were the one adopting or at least commending his position.

I am taking Dale's outrage (and yours, and all good people's) as a social fact about lines and then trying to construct a curmudgeonly argument about the folk wisdom of lines and resistance to the market economy. I am affected by this somewhat in having witnessed yesterday the giveaway of 10,000 cakes (each having a retail price of $27.99) in an honest-to-God public square (naked, of course) to anyone who was willing to stand in line and take one per customer.

Also, back up: you are saying that it's too easy for lawyers to join the Supreme Court Bar. Too easy FOR LAWYERS--there's your barrier, that's what keeps the riff-raff of movie producers and other peppermintaccino-sippers out.

Posted by: Abe Delnore | Apr 3, 2013 12:35:54 PM

Two illustrious former students commenting on one post! I'm delighted. Abe, membership in the Supreme Court bar requires a couple of years of membership in some bar plus the payment of $200. How distinguishable is that, from a virtue-centered reading, from the use of paid line-sitters by "dilettantes?" Orin recently had a post on the VC arguing that privileged seating is one of the real bargains and nearly the only virtue of Supreme Court bar membership. Doesn't that put it pretty close to your objections? If it is virtuous to wait in line, and if many Supreme Court bar members have nothing to do with a particular case and next to nothing (other than the payment of $200) to do with the Court in general, on what meaningful aretaic basis should they be allowed to stand in a shorter line than the rest of the public?

Posted by: Paul Horwitz | Apr 3, 2013 10:11:01 AM

There is something virtuous about standing in line to gain admittance to an event in which one takes an interest, particularly if the event is of public or cultural import. It is so virtuous that we have, as a society, decided that some goods will be given out principally to those who exercise virtue in this way. Attendance at Supreme Court arguments seems like a paradigmatic example of this sort of good that is given out to the most virtuous of those who can claim some association with the Court's work--hence the preferences given to litigants, former clerks, and members of the Supreme Court bar. Use of paid line-sitters by dilettantes corrupts this. It's as though Star Wars fans had lined up for a premiere for days only to lose their places to douchey lawyers and accountants. Shouldn't the real fans be rewarded?

Also, lines are largely governed by custom and are self-organized. One of the reasons lines work so well is that everyone is in them for the same reason (to see the Supreme Court argument or new Star Wars movie or whatever) and accepts the same moral economy outlined above (whoever got in line first is the most virtuous and deserves to get in first, subject to a few customary exceptions). Again, use of paid line-sitters corrupts this. For example, according to custom it is permitted for a lone person who has to leave the line to go to the bathroom to ask another person in the line to hold his or her place. This recognizes that anyone could be struck by nature's call and should not lose his or her place in line because of this. Does this custom extend to professionals? I would be very hesitant to interfere in the functioning of lines.

Posted by: Abe Delnore | Apr 3, 2013 9:54:33 AM

Thanks for all the comments. My views didn't really seem necessary. But I suppose I'd add, given Derek's last email, that the more I thought about his earlier comments the more I agree that, at *some* level of abstraction, it's certainly possible to raise a variety of questions about RAs. I was thrown by his label of "library-sitting," which was new to me too. Obviously (to me), simply paying a student to be warehoused in a library for the summer is different from actively employing a student as an RA. As far as the latter goes, it's possible to raise questions about whether, in some cases, it's a reasonable use of the school's resources. (Although, since Derek notes that RA's often aren't paid a huge amount, I'm not sure resources are an issue he's immediately worried about.) But no, despite any larger questions I don't have any particular problems with a properly directed and meaningful job as an RA. It certainly doesn't raise the same issues as line-cutting, and while at some level of abstraction it might raise some of the concerns about line-sitting, in terms of existing social norms I don't think it raises the same issues either, or at least not as strongly. Indeed, like Leland, I'm not sure that I have a huge problem with line-sitting in general, except insofar as 1) it is a nice, glaring example of the role of money in the lives of some even seemingly egalitarian types and 2) it suggests that the Supreme Court is both unwilling to televise oral arguments and uninterested in doing much to police what goes on on its own front steps, unless a protest is involved.

Incidentally, I agree with the commenter above that we could also reasonably question whether there really ought to be reserved seating for Supreme Court bar members, beyond perhaps those who are directly involved in the case. Dale didn't raise that question in his post, but it seems to raise the same concerns about privilege that he was otherwise concerned with.

Posted by: Paul Horwitz | Apr 3, 2013 9:48:49 AM

Lots of well-credentialed liberals believe in a world in which all people, no matter their race, religion, gender, or sexual orientation, can amass as much wealth as possible, work every connection they have, and take full advantage, on their own behalf and especially on behalf of their children, of massive inequality of opportunity.

I'm not sure that word means what you think it means.

Posted by: JT | Apr 3, 2013 9:37:48 AM


If you read my comments again, you'll find that I did not take a position either way on whether or how RAs (or line-sitters) should exist. Sometimes people put forth arguments for the purpose not of advocating for a position, but instead for exploring an idea. You may recognize this from the Socratic Method (YMMV).

If someone objects to people being able to buy their way in line to see oral arguments, it raises the question of why that should be something you can't buy, and what if anything else should be unbuyable. There are things which as a society we say you can give away but cannot sell, such as sex and kidneys. There are also things you can sell buy you cannot give away, such as labor. And we say there are things you can't even give away, such as assistance on a fellow student's term paper, or a seat in a popular law school seminar (you can drop the class, but schools try to prevent students from being able to choose who the seat goes to, and in many cases prohibit seminar-sitting). Thus we end up with the question of not only what goes into what category, but more importantly why.

Posted by: Derek Tokaz | Apr 3, 2013 9:05:56 AM

I know it's off topic and perhaps responding is unhelpful, but I'm somewhat amazed by this line of comments by Derek Tokaz.

Being a research assistant is employment. It's a way to earn money while learning something and, ideally, contributing something to the enterprise of scholarship. It is like working in a science lab for a chemistry professor. In some ways it is also quite similar to working as an associate for a law firm, a law clerk for a judge, a staffer for a member of Congress, or any of a zillion other jobs in which your work is to help the boss with their research and writing. That's a respectable and indeed often rewarding form of employment. (I, at least, found being an RA rewarding, but your mileage may vary.)

Of course, things can go wrong, here as in every other form of employment. For example, there could be problems of exploitation (was a fair wage paid? etc.). But it seems that you are objecting to the entire enterprise, as though these forms of employment should not exist and every professor and lawyer and judge in America should for some reason be required to do their work without any staff. Why would this be better? I doubt it would improve the quality of articles (although I suppose it might make them shorter). But how would this be better for the research assistants (who now need other jobs), the schools, the future readers of the articles...?

Is the argument that research should be "outside the cash nexus," so that students should just volunteer to RA for free (or for credit) instead of for money? That seems to me more likely to introduce exploitation than cure it. At least let these employees be paid for their work!

The problem at the Supreme Court is about who gets in and who's shut out -- and the class dimensions of how the Court allocates its scarce seats. The problem is literally a queuing problem; there's a scarce resource to allocate and a queue of people who want it. I cannot fathom how RAs are like this.

Posted by: Joey | Apr 3, 2013 4:21:30 AM

I haven't any problem with paid line-standers. Look, you either have to pay for your seat with surplus time (which most people do not have) or surplus money (which most people do not have). We can pretend that there is a meaningful distinction between the two, but I haven't the foggiest as to what it is. Plus, if I am behind them in line, a line-stander makes no difference to my well-being. Whether the person in front of me got there by using his precious time or precious dollars has no effect on my position in line one way or the other.

Line cutters, on the other hand, are denizens of Lucifer and shall spend eternity in the Eight Circle of Hell.

Posted by: Leland Unruh | Apr 2, 2013 4:32:44 PM

I wonder if anyone who finds line-sitting unethical (not just unseemly) feels that everyone should become a vegan,and if so, why?

Posted by: nonsequitur | Apr 2, 2013 2:47:26 PM

I wonder if anyone who finds line-sitting unethical (not just unseemly) feels that Carthage should not be destroyed, and if so, why?

Posted by: Bruce Boyden | Apr 2, 2013 12:15:25 PM


That sounds like the second objection I tossed up, that this just isn't the type of thing you should be able to buy, and that you have to earn it fair and square.

So, I have to wonder how many professors think publication in a law journal is something that they should be able to buy. Now of course the biggest difference is that you can't just hand over money in exchange for a completed article (at least, not yet, though maybe there's some good money to be made in that for people who are smart and industrious but lack the pedigree to go into academia). But, the use of research assistants does make the work easier, and I assume in many cases they find ways to improve the article. To a degree, publication is influenced by a professor's (school's) wealth, and so the question is to what degree is that okay?

[Though no one is coerced into being a research assistant,* for many it is a choice of last resort for the 1L summer, having failed to land a private practice or government job. 'Few bucks' is also quite accurate; some schools pay full-time RAs less than what their expense budgets say a student needs for living expenses each month.

*Some professors (probably less in law than other fields) give students writing assignments based on their own current writing projects, turning their students into unwitting research assistants.]

Posted by: Derek Tokaz | Apr 2, 2013 11:33:40 AM

Derek - I don't know that the objection to line sitters is that it's unfair to the line sitters. At least, that's not mine; assuming they're paid a legal wage, I can think of worse ways to earn a few bucks. (Though I also think that the legal wage in this country should be higher, I'm not putting the burden on people hiring paid line sitters to be responsible for that.) I think the general objection is that seats to a public institution like the Supreme Court shouldn't be allocated based on wealth, and - beyond that - that people were breaking even the tenuous "rules" of line waiting that do exist by having friends cut in line.

Likewise, I can also think of worse ways to make a few bucks as a law student than researching issues that I find interesting and which may be career relevant (and which are certainly educational) and then getting a nice letter of recommendation out of it as well. I don't remember anyone feeling coerced into taking RA positions.

Posted by: KM | Apr 2, 2013 9:44:04 AM

libary, and confused,

Let me try again: Under what theory is making use of line-sitters unethical, while making use of research assistants is not?

Much of the article on Volokh suggests that the problem is an abuse of wealth, and an exploitation of people in need. There is also some gut-reaction that some things should not be able to be bought, and if you want it you have to put in the effort yourself, fair and square. I could see either of these arguments applying to the use of low-paid student research assistants.

Posted by: Derek Tokaz | Apr 2, 2013 12:57:47 AM

is library-sitting an april fool's joke or are you just not explaining it in a productive way

Posted by: confused | Apr 2, 2013 12:25:27 AM

Another related thing that I find objectionable is that members of the Supreme Court bar get preferential seats and what seem to be significantly more seats, while the general public (which is a vastly larger group of people) has to often stand in line longer and is relegated to crappy seats in the back. As a law student I went to a case and I had to show up at around 6:30am, while Supreme Court bat members waltzed up much later and had no trouble getting seats. Meanwhile, many of them weren't interested in the case at all, but rather seemed to be there to shoot the breeze with one another (it was the first case of the season).

Posted by: Prof | Apr 1, 2013 9:49:38 PM

Gosh, reading and learning about different areas of law, while in law school. . . that sounds horrible.

Posted by: libary | Apr 1, 2013 8:18:53 PM

Library-sitting is one of the primary jobs of research assistants, wherein they sit in the library and read for countless hours.

Posted by: Derek Tokaz | Apr 1, 2013 8:09:13 PM

What is library sitting?

Posted by: libary | Apr 1, 2013 6:28:53 PM

I wonder if anyone who finds line-sitting unethical (not just unseemly) feels differently about the practice of professors paying (or even not paying) students to library-sit for them, and if so, why?

Posted by: Derek Tokaz | Apr 1, 2013 6:26:44 PM

Michael Sandel addresses this practice of paid-line-waiters in his recent book "What Money Can't Buy" as an example of the spread of market values into settings formerly governed by non-market morals, or at least settings in which market-like mechanisms (like paid line-sitters) were formally absent. I tend to agree that there's something at least unseemly, if not unethical, about such practices.

Posted by: Darryl Brown | Apr 1, 2013 4:22:31 PM

I'd suggest a compromise rule that permits line place-saving only for immediate family members, but Carpenter probably wouldn't find that satisfactory . . .

Posted by: arthur | Apr 1, 2013 1:26:47 PM

The fair thing would be to sell the seats to the highest bidder and use the proceeds to pay down the national debt. That way, we citizens who will never get to witness the injustice inside the chambers will be compensated for the injustice outside.

Posted by: jimbino | Apr 1, 2013 12:12:29 PM

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