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Tuesday, April 02, 2019

The Joke's On Us

Like many others in my little world, I read with regret Larry Solum's post yesterday announcing that he had discontinued his tradition of April Fool's Day entries offering parodies of articles by well-known law professors. Of course it is his choice, and it is an easy one to understand and sympathize with. But we will miss it, and hope his suggestion that it might be "revived in happier times" won't follow the same timeline and result as volume 2 of the third edition of Tribe's treatise on American constitutional law. 

In his post, Larry wrote, among other things: "Some of the spoofed authors wrote me with great concern, because they believed that someone had posted a fake article under their name. Others reported that they had received concerned emails from friends about the odd content of their new article. The authors were real people, and some of them have been offended by the posts or annoyed by the fall out. And over the course of the last few years, the legal academy has become increasingly politicized, heightening the the offense that some may take to the spoofs." Again, one understands all this, and of course it's worth remembering that these are indeed real people. Even Cass Sunstein is a real person! (And not, on the evidence of his publication rate, either a syndicate or a set of clones.) It's quite understandable if Larry, for whom the spoofs were a gratuitous offering and one that no doubt took a good deal of work to do as well as he did, didn't want the tsuris of having to deal with offended or annoyed colleagues. Still, it's worth noting that the people whose work he parodied were, by design and almost without exception, well established and tenured at some of the most prestigious, reputation-conferring law schools in the country. As real people, they surely vary in the thickness or thinness of their skin and in their degree of amour propre. But if anyone in our field can stand being parodied--and to my mind that category should include, at a minimum, everyone with tenure--surely they can.

If Larry's decision seems cause for lament, it's mostly because I enjoyed the parodies. More particularly, my lament has very little to do with concerns about supposed politicization within the legal academy. That supposition may be accurate. But I'm reluctant to draw strong conclusions about it without more evidence, and I'm unlikely to have that evidence. I'm unlikely to be in the right rooms to hear the right conversations that would prove or refute the thesis,  at least as it applies to more consequential matters. If law professors out there do absurd things like refusing to cite the "wrong" people or arguments even when those citations are relevant to their work, pushing prestige-conferring law reviews to publish certain people or views and not others, or finding publicly acceptable pretexts to support certain candidates and oppose others on illegitimate grounds, they are unlikely to write and tell me so. (Whether they should remain in the legal academy if they engage in misconduct like this, or whether their proper calling lies elsewhere, is a separate question. But I don't want to pronounce on that based on what I have made clear is something I can't even say exists.) Of course one can find examples of politics and of offense on Twitter. But I am trying to wean myself from that unhealthy place. Moreover, not everyone there engages in that sort of behavior, and those who do may be exceptional and inclined to do those sorts of things anywhere. 

Beyond the loss of personal pleasure, a more serious reason to lament this is that the legal academy, like any institution with a set of norms and practices that often become ossified and sometimes become highly exaggerated, is such fertile ground for parody. That's not a criticism of the legal academy as such. Almost any fairly formalized activity is also a potentially funny one, and a great deal of legal scholarship and its practices--especially those around the "branding" and selling of law review articles and the writing of abstracts--are highly formalized. Parodying what we do is a way of puncturing the bubble of our own self-seriousness. More important, perhaps, is that it helps put in high relief the kinds of things we acknowledge to each other or (sometimes) to ourselves but talk about publicly less often: the tropes, tricks, games, moves, and tactics that we consciously or unconsciously engage in when we do what we do, and especially when we try to bring what we do to market. It's not just that we ought to be able to laugh at ourselves and our own little place in the human comedy. It's that doing so is a useful way of revealing ourselves to ourselves, calling some of our standard practices into question, and showing a little humility and a sense of irony. Leaving aside the elite law professors Larry wrote about, who are indeed real people but should be in a position to stand all this (and in some cases would no doubt benefit from it), if there are concerns about punching "up" or "down," we should at least be able to parody, laugh at, and as it were punch ourselves.

P.S.: Along those lines, let me offer three possible titles for a Horwitzian "forthcoming article": 1) "A Pluralist Approach to Pluralism"; 2) “The Sub-Basements of Institutional Architecture: Rethinking the First Amendment Rights of Newspaper HR Departments and Church Annual Picnic Committees”; and 3) “A Conflicted Plea for Sanctimony About Ethical Legal Scholarship.” The last one seems both lifelike and especially apt in the context of this post. But of course most of the fun with Larry's parodies came from the abstracts, given that, as I've suggested, the practice of abstract-writing has become so standardized and thus often hilarious. Although I don't write about private law, I'm waiting for the day when an abstract begins like this: "Although private agreements are a cornerstone of law, they are surprisingly neglected by legal scholars. This article is the first to take a closer look at this phenomenon, which I call the ‘contract.’ I advance the novel and counter-intuitive argument that these 'contracts' depend most centrally on mutual understanding and consent.  This thesis has surprising and far-reaching implications across a range of cases and circumstances."   

Posted by Paul Horwitz on April 2, 2019 at 01:24 PM | Permalink | Comments (0)

Balkinization Symposium on Devins & Baum, The Company They Keep

At Balkinization, a symposium is starting on a new book by Neal Devins and Lawrence Baum, The Company They Keep: How Partisan Divisions Came to the Supreme Court. The first entry is by Rick Hasen. If it is perhaps a little eager to make a place for the arguments he has made in his own recent book, that seems quite natural, and the post is enjoyable on its own terms. I look forward to the other symposium entries as well and am happy to commend the symposium to readers. 

I have Devins & Baum's book, which is congenial to my interest in social class and the American legal profession. (My interest is in law professors, who are perhaps--and perhaps not coincidentally--more eager to talk about inequality than about social class, and more eager to talk about inequality and class as they apply to others than they are to talk about how it describes and affects us personally as law professors. There are exceptions, but that's my general impression.) I have skimmed parts of it but haven't read it yet, so I can't comment on it much. I can at least provide the publisher's description of the book: 

Are Supreme Court justices swayed by the political environment that surrounds them? Most people think "yes," and they point to the influence of the general public and the other branches of government on the Court. It is not that simple, however.

As the eminent law and politics scholars Neal Devins and Lawrence Baum show in The Company They Keep, justices today are reacting far more to subtle social forces in their own elite legal world than to pressure from the other branches of government or mass public opinion. In particular, the authors draw from social psychology research to show why Justices are apt to follow the lead of the elite social networks that they are a part of. The evidence is strong: Justices take cues primarily from the people who are closest to them and whose approval they care most about: political, social, and professional elites. In an era of strong partisan polarization, elite social networks are largely bifurcated by partisan and ideological loyalties, and the Justices reflect that division. The result is a Court in which the Justices' ideological stances reflect the dominant views in the appointing president's party. Justices such as Clarence Thomas and Ruth Bader Ginsburg live largely in a milieu populated by like-minded elites. Today's partisanship on the Court also stems from the emergence of conservative legal networks such as the Federalist Society, that reinforce the conservative leanings of Republican appointees. For the Warren and Burger Courts, elite social networks were dominated by liberal elites and not divided by political party or ideology. A fascinating examination of the factors that shape decision-making, The Company They Keep will reshape our understanding of how political polarization occurs on the contemporary Supreme Court.

As Hasen writes, "Devins and Baum offer a psychological model positing that Justices, like others, are the product of the world around them, and Supreme Court Justices travelling in elite social circles seek affirmation and approval from these elites." Hasen argues that this kind of influence would have taken one form during an era of greater elite consensus, but that the growth of polarization has created a "politically polarized elite world," with dual elites and dual supporting institutions and social networks that can each provide affirmation or disapproval. The existence of these polarized elite worlds "both shapes and reflects how Justices view their jobs and decide how to vote, leading to a new polarization on the Supreme Court."

Usefully, Hasen emphasizes "the role of the 'Celebrity Justice,' a phenomenon which Devins and Baum acknowledge near the end of the book. Scalia, and later Ruth Bader Ginsburg, became rock star Justices, drawing adoring crowds who celebrate these lawyers as though they were teenagers meeting Beyoncé. If we are thinking about the psychological effects on Justices getting affirmation that they are on the right path, cult-like worship can only make the assured even surer in their convictions. This seems especially dangerous during polarized times."

I could not agree more on this point. The Notorious RBG phenomenon (or Scalia worship) and the cult of personality and celebrity it represents, however understandable (I'm speaking here not of politics, but of Justice Ginsburg and the value of having previously under-represented role models), is bad for our already oversized view of the courts, bad for our politics, bad for the justices themselves, who hardly need further encouragement in thinking well of themselves and taking confirmation of their views from the like-minded (and who risk an increasing willingness to profit from these cults, whether personally or, as the line of Ginsburg products seems to have become, in creating a family business), and for us. I feel the same about the black-tie dinner appearances and selfie opportunities at FedSoc conferences, which may seem harmless and trivial enough to those who attend and participate in this adulatory culture but is not. While the connection between the celebrity justice phenomenon and political polarization may be clear, its connection to the idea of elite culture is perhaps less so. At a minimum, though, I might suggest that I would feel less worried about elites if they considered a fundamental characteristic and requirement of their position to be a quality of independence and maturity of mind, skepticism toward bromides and hero worship, and resistance toward consumer culture and its colonization of politics and governance. The celebrity justice phenomenon hardly contributes to those qualities; and without them, there is good reason to doubt that our "elites" will act in a way fully worthy of the positions of trust and privilege they occupy.    

The book (insofar as I have glanced at it) and the Hasen post emphasize polarization. I hope at least one or more contributor--perhaps Frank Pasquale? or perhaps an intervention by Mark Tushnet, who's not on the list of symposiasts?--will take a somewhat different approach to this question. From a centrist or center-left position and, most important, from a position within the elite, the polarization focus suggests that "liberal" and "conservative" legal elites occupy two radically different and separate worlds. That is certainly the usual theme of many comments on blogs like these or on more pernicious and shallow social media. From what I might call by way of shorthand a more American Affairs  or Baffler perspective, however, that polarization may be less important than the common ties and assumptions that still connect many across any elite sector, including that of law and the courts (and the legal academy). Liberal and conservative elites are still elites, and share many common cultural backgrounds, assumptions, and manners and mores. Their list of what "just isn't done" may be longer than the list of whatever divides them. The norms they pick up from Yale or Harvard and appellate clerkships may make them more alike than they think, despite whatever purports to divide them. Whether the (these days, mostly hypothetical) paper on one's doorstep in the nicer sectors of Arlington, Chevy Chase, the Upper West Side, Austin, or Ann Arbor is the Wall Street Journal or the New York Times may seem a great difference to their readers and a trivial one to others residing outside these circles altogether.

Indeed, to those outside these circles the fierceness of these debates within a small and relatively closed community may suggest the degree to which these fights remain a form of luxury activity, or as much a matter of self-image as of a genuinely outward-looking perspective. Fierce debates over political representation in the legal academy usually focus on whether we are hiring too many elite center-left types and not enough elite center-right types. It would be nice if our palette were a little wider, a little less focused on whether, as it were, one's rep tie is blue or red: if it included more genuinely heterodox views and backgrounds, both left and right. I doubt this is possible for the judiciary or elite law firms; I would like to think, admittedly with what is almost certainly undue optimism, that it's still marginally possible for the legal academy, although just about everything associated with the hiring process these days, just as much (if differently) than in previous eras, seems designed to kill those hopes.

Given that Balkinization is itself an elite site populated by elite writers, it would be nice to see a rude or disturbing argument along those lines somewhere in the discussion. Regardless, I look forward to the discussion. And I offer my hope that symposium contributor Linda Greenhouse, who among other things figures in the book, will write a more self-examining contribution rather than one that focuses mostly on, say, the right and its networks. That's a perfectly worthy subject, but one she has written on plenty already. As someone deeply connected to both the liberal elite and its culture and networks generally and the American Constitution Society specifically, she has other resources to offer. She is well positioned to spill "'secrets," talk about how networks and their funding and coordination (or lack thereof) work on her side of the ostensible divide, look at how various cultural or political assumptions feed into the granting or withholding of praise, ask how many op-eds or columns by people within her networks (or by her) are deliberately aimed at the justices as readers or at the justices' social and professional networks, and generally to engage in self-examination and self-criticism. That kind of post would be educational to people like me, who are more than privileged but still peripheral to those kinds of circles and generally not in the room when elites speak more frankly than they do for public consumption. I don't expect any of this, to be hones. But it would be useful. (And of course I would be just as eager to learn more about the same phenomena within elite conservative circles, although those are generally located elsewhere than the academy and are, I think, more subject to reporting by news institutions I still partly trust than are liberal groups and networks.)       


Posted by Paul Horwitz on April 2, 2019 at 12:41 PM | Permalink | Comments (0)