Workshop on Participatory Law Scholarship - Announcement
From Northwestern University Law Review and Drexel Law Review:
Building from Redeeming Justice, a law review article co-authored byProfessor Rachel Lopez(Drexel Kline Law) with two activists who were sentenced to life without parole decades ago and winner of the 2022 Law and Society Association Articles Prize, Professor Lopez and her colleagues are rolling out a larger project on "participatory law scholarship" or PLS. PLS is legal scholarship co-authored with those with no formal legal training, but expertise in law’s injustice through lived experience.
They are launching the project with a two-part workshop organized by the Northwestern University Law Review and Drexel Law Review. This two-part workshop builds on the foundation of Redeeming Justice to further develop the ethos and methodology of PLS.
On February 2, 2023, Part I of the workshop at Northwestern Pritzker School of Law will explore the theory of PLS. The live-streamed panel from the workshop will explore the underlying philosophy of PLS and how it relates to other types of scholarship, including Movement Law Scholarship and Critical Race Theory. You can register for Part I of the workshop here (with in-person and virtual options).
On February 9, 2023, Part II of the workshop at Drexel Kline Law will explore the practical and ethical considerations of co-authoring PLS as well as how this scholarship can contribute to social justice initiatives on the ground. The morning panel will explore the creative process of producing PLS as well as the principles and ethics that should shape its formation. The afternoon panel will focus on PLS in Action, exploring how concepts, like the right to redemption and death by incarceration, theorized by incarcerated activists based on their lived experience informed a UN complaint alleging that the US is committing torture by sentencing people to life without parole. You can register for Part II here(with in-person & virtual options). CLE credit is also available for this part of the workshop.
If you have any questions or want more information, please reach out to Sarah Wolf-Knight, Senior Symposium Editor, Northwestern University Law Review, at [email protected].
More on Warren-DeSantis and the court's ill-advised analysis
I wrote last week about the district court decision in the lawsuit between the Hillsborough (FL) County DA and Florida Governor Ron DeSantis, arising from the latter suspending the former. I argued that the court made two legal mistakes: 1) Framing the case as DeSantis violating Warren's First Amendment rights in considering protected speech where he would have reached the same conclusion based on something other than protected speech and 2) Pronouncing that the suspension was inconsistent with state law while refusing on Eleventh Amendment grounds to issue an injunction ordering reinstatement. I also suggested Hinkle--whether intentionally or otherwise--provided Warren a weapon in the political controversy.
That last thing happened more quickly than I anticipated. Warren last Wednesday sent (and publicized) a letter to DeSantis urging the governor to voluntarily reinstate him. Warren frames the situation as follows: The court found as a matter of fact and law that the suspension violated the U.S. and Florida constitutions. Although not ordering Warren's reinstatement "in deference to federalism," the court called on DeSantis to "easily set [that violation] right" by recognizing that "the facts matter" and that he should not have removed Warren. DeSantis thus should follow his oath and obey the law by rescinding the suspension. This is a political stunt (as was the entire lawsuit), leading with the court's words as if they provide the final answer on these issues.
I explained where the court went wrong. But Warren's tendentious framing raises that error to another level.
The Eleventh Amendment (as courts apply it) does not create discretionary deference to federalism allowing a court to offer binding legal conclusions while declining to issue any legal remedy. It imposes a jurisdictional bar to adjudicating state-law issues. The court had no power or basis to consider the state-law validity of the suspension. It dismissed Warren's state-law claim as improper under § 1983/Ex parte Young. Nor were the state-law issues built into the federal issues. Adjudicating the First Amendment claim did not turn on the accuracy of the state law grounds--for purposes of whether DeSantis' decision rested on something other than Warren's protected speech, the question is whether DeSantis believed Warren adopted blanket non-prosecution policies, not whether DeSantis' beliefs were true or accurate.
Warren's letter treats the court's state-law analysis as akin to a declaratory judgment--the court issuing a jurisdictionally appropriate order that DeSantis violated state law, but finding that declaration sufficient and declining to issue further relief in deference to competing values. That is, the court provided a valid statement of law designed to persuade the defendant to change his behavior going forward, while reserving the "strong medicine" of an injunction for discretionary reasons and with faith that DeSantis will comply with the decision. DeSantis must "follow the law" as the court declared it.
This is wrong. The Eleventh Amendment strips courts of jurisdiction to issue all remedies, not only injunctions. The court had no more power to issue a DJ based on violations of a state-law rights than to issue an injunction based on a violation of state-law rights. That bar precludes any consideration of state law or whether DeSantis' conduct comported with the state constitution--the court acted beyond its power in making these pronouncements and they should have no legal force. Again, this goes beyond dicta--it is a court speaking words without the power to act as a court.
But those words provide Warren's first line of attack in the press and in politics.
Tulane Forrester Fellowship and VAP Positions - 2023
From Tulane Law School:
Tulane Law School invites applications for its Forrester Fellowship and Visiting Assistant Professor positions, both of which are designed for promising scholars who plan to apply for tenure-track law school positions. Both positions are full-time faculty in the law school and are encouraged to participate in all aspects of the intellectual life of the school. The law school provides significant support and mentorship, a professional travel budget, and opportunities to present works-in-progress in faculty workshops.
Tulane’s Forrester Fellows teach legal writing in the first-year curriculum to first-year law students in a program coordinated by the Director of Legal Writing. Fellows are appointed to a one-year term with the possibility of a single one-year renewal. Applicants must have a JD from an ABA-accredited law school, outstanding academic credentials, and significant law-related practice and/or clerkship experience. If you have any questions about this position, please contact Erin Donelon at [email protected].
Tulane’s visiting assistant professor position is supported by the Murphy Institute at Tulane (http://murphy.tulane.edu/home/), an interdisciplinary unit specializing in political economy and ethics that draws faculty from the university’s departments of economics, philosophy, history, and political science. The position is designed for scholars focusing on regulation of economic activity very broadly construed (including, for example, research with a methodological or analytical focus relevant to scholars of regulation). If you have any questions about this position, please contact Adam Feibelman at [email protected].
Brian Leiter shares the news that Kent Greenawalt, long a professor at Columbia Law School, has died, at 86. Kent was a leading figure in law and religion, among other fields--I am inclined to call him, more generally, a leading figure in legal interpretation--and mentored many of us in that area. I also had the privilege of studying under him at Columbia as an LL.M. student.
Law is a highly tradition-oriented profession, and no less so in this country, for all its claims to love the new and disdain the old. (This link is perhaps outdated, but I think it's correct in saying that law Latin is probably used more often in the States now than in His Majesty's courts, because American lawyers are just more conservative, plus royaliste que le roi.) Legal academia is the same. That's true in various larger ways and also in more personal ways. They are combined in the many linkages in our individual lives between mentorship, memory, history, and tradition. A professor today who learned constitutional law from Louis Henkin is five degrees of generational separation from the Framers, via Henkin, Frankfurter, Holmes, and John Quincy Adams (whom Holmes met as a boy), and law students studying today who will still be contributing to the profession on the date of the tricentennial will remain, even then, within Baconian distance of 1776. It adds a sense of awesome significance to these individual connections, however personal the memories and experiences of mentoring are in each instance.
Our reliance on mentorship can be bad as well as good. Unsurprisingly, I'll focus on the good aspects of mentoring here. I'll happily rhapsodize, but will try to avoid the bullshitting that is a cardinal feature of tributes in American legal writing. But to talk about the larger temporal chains involved in these relationships is not merely rhapsodical, I think; it is genuinely meaningful, and a cause for gratitude and humility. I note before pushing off that there will be entirely too much use of the first person here. Not without reason; he was deeply influential personally and affected the course of my life deeply. Nonetheless, I apologize.
Years ago I wrote here about the debts that mentors impose on one. I say "debts," but could just as well have used the word "gifts," with the thought in mind that the greatest gifts that one receives from others are also debts--obligations that one cannot really repay to the giver, but which must instead be settled by handing gifts or debts to others. (This is another reason for the first-person excess: It's hard to talk about an influential person without talking about how that influence played out going forward.) For me, the greatest gifts, and thus the greatest debts, came from three teachers, all then at Columbia and each in his own way focused on the art of legal interpretation. These were Kent, John Manning, and Michael Dorf. In my own experience, Kent loomed largest.
Many of us who studied under him had already read, or would come to know well, books like Religious Convictions and Personal Choice or Private Consciences and Public Reasons or Fighting Words, and those who came slightly later would have known well his tremendous two-volume treatment of Religion and the Constitution. (To call that a selective list is understatement. In the last fifteen years of his life he published seven books in addition to the Religion and the Constitution volumes.) We learned from his writing.
But we learned even more, perhaps, from his model. He was an eminently kind man: a serious man, not a classroom "buddy" type or collector of allies, but decent, possessed of the capacity to laugh, and heavily invested in teaching as a dialogue or collaboration of (what he made feel like) equals, in which student and teacher were both interested enough in the same topic to devote time and thought to talking it through. Back in earlier days, when Dan was still with us and comments were still a thing (and were not limited to a couple hundred characters), I said this about Kent's teaching:
Kent Greenawalt taught me a surprisingly difficult skill: that of listening. Socratic lecturing and seminar teaching both count on interaction with students. Yet, as new teachers find, often one is so focused on where the material is going next that Socratic lecturing is a mere dumb show, in which you take comments until someone says what you want to go where you need to be next. A couple of years of teaching has taught me the difficulty of really simply listening to a student, and responding respectfully and thoughtfully, without regard for the direction of the class. I think it's difficult to do this right until you've really road-tested your classes and mastered the material.
Listening is indeed a difficult skill, in or out of the classroom. To say that experience taught me the difficulty of that skill is not to say that even more experience has led me to its mastery. Kent was a master of listening. Part of that was his mastery of the subject itself, of course, as well as his long experience at teaching it. But I think most of it was his view that teaching was indeed a dialogue, a joint effort to work together through a set of questions and problems, rather than a performance in which the student is a mere unknowing cast member or magician's assistant. The goal of the conversation for him was the working-through, not the answer itself and certainly not a predetermined one. And so he listened, fully and seriously and respectfully; and he responded, neither with criticism nor with false praise, but with respect and genuine interest and effort. I'm no whiz at seminar teaching, but what I do well I stole from teachers like Kent, Vince Blasi, and others; and I don't doubt there are actually superb seminar teachers out there who are applying lessons from Kent and repaying debts they took on in his class.
Kent's seminars often took place in his apartment on Riverside Drive. I remember, a mere quarter-century later, the rather dim light in the room, the park outside, the smell of pizza from V&T, and Kent's courtly, careful prodding. As a reader of his work, I remember not only the fact that his work was dense and demanded attention but was always written in plain English, but also the little eruptions of personal life that came along with it, typically in the prefaces or introductions, and that similarly emerged from time to time in his seminars. The love and deeply affecting loss of a wife, the deep attachment to his sons, the memory of his father's work as a lawyer (including on religious liberties cases), the importance of new relationships and attachments: all these came occasionally into his discussions, not grossly or as a matter of oversharing but naturally and as a matter of fact.
He was, of course, human. He worked hard, he got tired, he had better and worse days, and I vividly remember his expressing an almost pettish anger at having an article turned down by his home journal, and thus getting a lesson both in the unceasing nature of ambition and in the fact that we are never too old to re-experience the hurt feelings of youth. He wanted the best for me (as for all of his students), and for some reason his ambitions and hopes for me did not include something like dyeing my hair and wearing weird T-shirts. (He put the point kindly, although it was dispiriting, and the point had to do not with encouraging conformity but with removing possible barriers to getting places he hoped to see me go. Whether the latter worked out or not, I can say that the former failed utterly. It was only later that I appreciated at first hand that business dress is still so thoroughly the norm at many elite law schools that Duncan Kennedy wearing a leather jacket was and still is actually a somewhat radical action. The ways of the great are strange.) Those human and personal moments, in his writing and in person, were refreshing and touching. But time still stopped, or took on a pace and sensation of its own, in the half-light of the apartment on Riverside Drive. If the contretemps at Yale Law a couple of years ago teaches us anything about teaching off of official grounds, it's that it's something worth preserving regardless of the contretemps at Yale Law a couple of years ago.
Kent was eminently reasonable, in person and in his work. His readers would probably associate his work with the word "reasonable" above all else. I mean that as a compliment and tribute, of course, but it is a thought-provoking, if not double-edged, compliment. I have a distinct memory of someone somewhere, in a symposium piece commenting on Kent's work, referring to Kent's work as offering the "view from Morningside Heights" or the "view from Riverside Drive." Perhaps it was only spoken at the conference in question; in any event, I certainly can't find it. It was apt phrasing.
Whether it appeared in print or not, the phrase does find echoes in critiques of his work from Larry Alexander and Stanley Fish. Each of them avoids directly accusing him of thinking of himself as offering a "view from nowhere." (Larry is explicit: "Kent recognizes that there is no 'view from nowhere,' no neutral position above the fray of competing metaphysical and normative views--or rather, that neutrality is always relative to some viewpoint, and that there is no Archimedean, interpersonal point of view to which our bare noumenal selves can repair.") But both suggest, more or less gently, that his reasonableness was itself a position, with a particular politics, method, and location, one that covered some ground but not the whole terrain. Maintaining the borders of that ground was hard; convincing people to work within its territory and not outside it was hard also, and the number of people who might think of themselves as citizens of that territory, imbued with its culture and assumptions and invested in its success, could grow or (and especially) shrink; and the plausibility of the positions and solutions offered from within the rules and culture of that territory could seem more or less stable, convincing or unconvincing, ecumenical or sectarian and imperial, more or less caught up in tensions and contradictions, at different times depending on the nature of the cultural and political surround. The point here is not the banal one that issues change and necessarily require a new assessment of what is reasonable. Nor, I think, is it the point that what is seen as "reasonable" changes over time. It's closer to the mark to say that there are multiple communities of the "reasonable" or of the "consensus view," that the assumed place of any one of them as the genuine article may be stable for quite a while but can shift slowly or suddenly, that its influence can perforce be so strong as to be unquestioned or can suddenly virtually disappear, and that interest in the reasonableness project and its members, at least as defined and understood for stretches of decades at a time--in this case for much of postwar American life--can itself fade. (This may also be banal. But it's different from simply saying that issues and perspectives change within the Land of the Reasonable.)
In his Fishy way, Stanley had this to say (I quote at length):
[T]he chief merit of [Private Consciences and Public Reasons] is that it is an illustration of the tension it wants to resolve, the tension we have been tracking from the beginning between the impulse toward tolerance and the demands of order. Although Greenawalt does not finally advance the debates he rehearses, he does display the springs of those debates in a way that makes as clear as one would like why they are, and will continue to be, interminable....
Private Consciences and Public Reasons abounds in such moments, some acknowledged and some not, with the result that the book exhibits, sometimes in a single sentence, a split personality. On the one hand, it is a theoretical treatise in search of a privileged philosophical position from the vantage point of which the issues it raises can be definitively addressed--as when Greenawalt declares that the “problem of political philosophy is genuine only if some moral and political judgments do have a more solid or widely comprehensible basis than others;” on the other hand, it is an account (not without interest) of the compromises and adjustments that are available within a set of political conditions--roughly the conditions of American political life at the end of the century--whose rightness is assumed and not interrogated. In one narrative, the goal is the generation through rigorous conceptual analysis of a formula for settling the just bounds all citizens will positively affirm; in the other, the goal is the prudential one of figuring out what, given the prevailing realities of power, one can or cannot accomplish--at least until those realities change, at which point the calculations would have to be done all over again....
What Greenawalt has done without announcing it is eliminate the tension between Faith's religious convictions and the principles of liberal government, and once they have been collapsed into one another he can declare that in the course of reflection she has become someone whose overriding concern is “to show respect for fellow citizens.” She has become a liberal theorist....
Serious attention [to competing visions of life] is certainly what Greenawalt pays, but as I have already said, he alternates between thinking that he is paying attention to a political/sociological configuration and thinking that he is paying attention to a configuration (and a set of distinctions) reflective of some deep, noncontingent truth. If he is doing the first, his book is interesting largely as a rhetoric, as a handbook for those who want to operate successfully in late-twentieth-century liberal democracy. If he wants, as I think he does, to be doing the second, he is making...the mistake of confusing a present and revisable status quo for a permanent and general settlement of old and persistent questions. What makes his book compelling is the degree to which he is aware, at least on occasions, of how little theoretical interest his efforts might finally have. Fairly late on he acknowledges that with respect to his analyses and recommendations, the “priority and weight of considerations turn out to look quite different in regard to people who occupy different positions” and thus “the relevant choices turn out to be highly specific.”....In other words, what I'm telling you is what I see from my own particular perch, constructed as it is by the beliefs and convictions that have long since made me what I am, and if you happen to be sitting on another perch, what I am saying may seem to you to be unpersuasive and flatly in error.
Not, perhaps, the passage one is expecting in a tribute--which this emphatically is and remains. But it does seem true to me that Kent, for many of us, stood as a hallmark of reasonableness in confronting and offering a guide to the "compromises and adjustments that are available within a set of political conditions," a set that did indeed constitute "roughly the conditions of American political life at the end of the century." He still has that status, but the sense of his having that status within a particular and perhaps vanishing context is now much stronger. Within that time and place and its animating premises, his views were so reasonable, and so reasonably put, that they came close to the feeling of a "view from nowhere." The view from his perch, if it was limited, was not limited because of any particular occlusion or limitation of vision; that was exceptionally clear. Rather, if it was limited, it was because it was the view of a particular territory, one whose citizens might disagree over particular conclusions but did so in the same way and with roughly similar premises and commitments.
It is, I think, a territory whose internal population has shrunk and which has been somewhat overshadowed and subjected to criticisms (or--worse--lack of interest) by kingdoms sitting to the left and right of its borders. (Or, perhaps more accurately, by people residing within its borders but at the furthest points left and right within them, or who sit just outside its walls but still operate comfortably under its protection. I'm not sure it's more accurate to call someone like Patrick Deneen illiberal or antiliberal than it is to call him something of a permanent resident within liberalism, one whose protections as a green-card holder include the right to reject liberalism.) To visit and revisit Kent's work, which I still do often and to great benefit, feels now, much more than it used to, like taking a trip to a foreign country, one that seems on the whole like a very nice and well-run place to live.
That is no mean tribute. Nobody fully "evolves" with the times, and if they did they would be more likely to seem (and be) ridiculous or desperate than fully contemporary and in step with the times, to the extent that that is a worthy goal of some sort. To be able to say of someone that his views within a particular era were so full and thoughtful that they managed to offer what seemed like a definitive account of law and religion (among other topics) from within that time-bound position is beyond most of our hopes.
And, of course, I offer no suggestion that Kent's perspective, his domain, was not a better domain or perspective than whatever is currently on offer. Just before I learned of Kent's passing, I read a post in the ongoing Balkinization anniversary series, this one by Melissa Murray and titled "Talking 'bout my generation." I quite liked it. It compares the perspectives of Justices Thomas and Jackson from the perspective of an "intraracial generational divide," noting the "temporal and experiential differences" that might affect their understanding of "vexed questions" such as affirmative action. It's a useful perspective, both as to these justices and more broadly. It rightly counts diversity of age and experience as something to be valued. What it does not do, and cannot do, at least without appealing to something other than mere temporal happenstance, is say whose understanding is more accurate or appealing. It is pretty clear that Murray has a preference, judging by her choice of words. (Thomas's vision is "clouded by the prospect of stigma and assumptions of inferiority," while Jackson's "reflected the opportunities and access that integration’s advocates promised." I take the historical point. But surely every vision, including the latest one, can and should be said equally to be clouded or reflective--leaving aside the point, which Murray would not deny, that neither Thomas nor Jackson can lay claim to a definitive generational response to the factors operating in each era.)
I would say likewise, of Kent, that if he offered a particular "view," an account of reasonableness among particular participants, in a particular time and place and operating from particular shared assumptions and premises, and if the delimitations of that perch within a particular time and space are now more visible--perhaps painfully more visible--that does not in itself tell us that he was wrong, or that other and different views and perspectives are more right. Within the time period in which and for which Kent was writing, and from a position somewhere within its borders, if not quite on a perch over Riverside Park, I often found things to disagree with within Kent's work. Within this time period, I find occasion often enough to lament that his approach--his thoughtfulness, his reasonableness, his somewhat formal warmth, his capacity to listen and respond with seriousness and with no sense of urgency--is not more available. At the risk of being overly dramatic, I do tend to think that that model is now both less common and less tenable. That alone is a pretty excellent reason to continue to follow it; what place is there for any academic in a river, if not swimming against the tide? So is the fact that I remain under an obligation to him. And so, finally, is the fact that it, and Kent, were in so many ways so admirable. May he rest in peace.
Legal policy and scholarship are increasingly focused on regulating technology to safeguard against risks and harms, neglecting the ways in which the law should direct the use of new technology, and in particular artificial intelligence (AI), for positive purposes. This article pivots the debates about automation, finding that the focus on AI wrongs is descriptively inaccurate, undermining a balanced analysis of the benefits, potential, and risks involved in digital technology. Further, the focus on AI wrongs is normatively and prescriptively flawed, narrowing and distorting the law reforms currently dominating tech policy debates. The law-of-AI-wrongs focuses on reactive and defensive solutions to potential problems while obscuring the need to proactively direct and govern increasingly automated and datafied markets and societies. Analyzing a new Federal Trade Commission (FTC) report, the Biden administration’s 2022 AI Bill of Rights and American and European legislative reform efforts, including the Algorithmic Accountability Act of 2022, the Data Privacy and Protection Act of 2022, the European General Data Protection Regulation (GDPR) and the new draft EU AI Act, the article finds that governments are developing regulatory strategies that almost exclusively address the risks of AI while paying short shrift to its benefits. The policy focus on risks of digital technology is pervaded by logical fallacies and faulty assumptions, failing to evaluate AI in comparison to human decision-making and the status quo. The article presents a shift from the prevailing absolutist approach to one of comparative cost-benefit. The role of public policy should be to oversee digital advancements, verify capabilities, and scale and build public trust in the most promising technologies.
A more balanced regulatory approach to AI also illuminates tensions between current AI policies. Because AI requires better, more representative data, the right to privacy can conflict with the right to fair, unbiased, and accurate algorithmic decision-making. This article argues that the dominant policy frameworks regulating AI risks—emphasizing the right to human decision-making (human-in-the-loop) and the right to privacy (data minimization)—must be complemented with new corollary rights and duties: a right to automated decision-making (human-out-of-the-loop) and a right to complete and connected datasets (data maximization). Moreover, a shift to proactive governance of AI reveals the necessity for behavioral research on how to establish not only trustworthy AI, but also human rationality and trust in AI. Ironically, many of the legal protections currently proposed conflict with existing behavioral insights on human-machine trust. The article presents a blueprint for policymakers to engage in the deliberate study of how irrational aversion to automation can be mitigated through education, private-public governance, and smart policy design.
Jack Phillips and Masterpiece Cakeshop provide the response to complaints about SB 8 (and other "vigilante federalism" laws) that resist pre-enforcement offensive federal-court challenge and consign rights-holders to defensive litigation in state court--expecting the state court to properly vindicate federal rights or hoping for SCOTUS review at the end of the multi-stage process.
Phillips finds himself in that position, facing a private civil action under Colorado law from a transgender customer denied a custom cake. Phillips lost in the trial court and the court of appeals affirmed, concluding that the cake (pink on the inside, blue on the outside) carried no intrinsic message apart from how the customer planned to use it (a celebration of the anniversary of her m-to-f transition).*
[*] And Masterpiece did not know about that use when the customer ordered the cake and the store initially agreed to make it.
Phillips believes his constitutional rights are as obvious and as violated as those seeking reproductive care in the face of SB8 or trans athletes seeking to compete. Yet no one complains about Autumn Scardina using civil litigation against his (perhaps) protected conduct or acting as vigilante against Phillips. The difference remains that the people opposing SB8 and other vigilante laws disagree with his legal position and do not mind people suing him into oblivion. Procedure cannot turn on such substantive differences.
On the merits, this case bolsters my thoughts after the 303 arguments: These cases superimpose a complicity element on compelled speech. The messages made by the challengers--"Jack and Jack are getting married," "pink-and-blue cake"--carry no political message. It is what the customers do and say with that message after it is made--something untouched by the challengers--that matters. So the First Amendment argument must be that an anodyne, identical message is put to an end with which I disagree. That differs from the core compelled-speech case.
Three Modalities of (Originalist) Fiduciary Constitutionalism
I have posted my forthcoming paper in the American Journal of Legal Historyhere. The title is "Three Modalities of (Originalist) Fiduciary Constitutionalism" and an abstract follows:
There is an ongoing body of scholarship in contemporary constitutional theory and legal history that can be labeled “fiduciary constitutionalism.” Some have wanted to strangle this work in its cradle, offering an argument pitched “against fiduciary constitutionalism,” full stop. But because there are enough different modalities of fiduciary constitutionalism – and particularly originalist varieties of it at the center of recent critiques – it is worth getting clearer about some methodological commitments of this work to help evaluate its promise and potential pitfalls. This paper develops the ambitions, successes, and deficiencies of three modalities of historical and originalist argument that link American constitutionalism with the law and theory that constrains those with especial discretion and control over the legal and practical resources of beneficiaries known as fiduciary governance. Probing primary and secondary research in fiduciary constitutionalism can help show its value and limitations for legal historians and constitutional theorists alike.
The bill to name the Post Office in Cadiz, Ohio after John Bingham was enacted. Here is the enrolled bill.
This marks the one (and probably only) time that one of my ideas became law. I hope to be at the ceremony this summer.
Posted by Gerard Magliocca on January 23, 2023 at 07:35 PM | Permalink
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Saturday, January 21, 2023
"They Cite Baude, Not Balkin"
This is an enjoyable post by David Pozen, written as part of a 20th anniversary series on Balkinization. (Happy anniversary!) I appreciated both its reminder of Balkinization's role during the War on Terror and its discussion of the role of means-of-production and technological questions in the rise or fall in influence of something like Balkinization. I also agree with him that you should continue reading the blog.
But I did wonder about the aptness of this passage: "The Court’s controlling conservative bloc has no appetite for arguments promoted by left-liberal academic elites, even when framed in ostensibly congenial originalist terms. They cite Baude, not Balkin." I'm not sure this can or should be laid at the feet of "the Court's controlling conservative bloc." I do not say this to be rude. (Deflationary, perhaps.) But the reality is that none of the Justices cite Balkin--nor, as far as I can tell, have they ever, pre-or post "conservative bloc." They do cite Baude an awful lot. But Baude has been cited more often (that is, once, I believe) by current liberal Justices than Balkin has. And I would add that, on the whole and holding Justice Jackson in abeyance, based on the kinds of articles they cite, the Democratic appointees to the Supreme Court don't seem to have any particular interest in "left-liberal academic elites" either. Certainly that's true if you emphasize the "left" in "left-liberal academic elites." When they are not using academic citations to fight fire with fire, their interest, which is tepid at best, is mostly in "liberal academic elites, either centrist or writing in centrist mode, offering fairly staid and conventional doctrinal arguments of the sort that could have been written at any time in the last 70 years." The Democrats on the Court are not a "Nomos and Narrative"-citing bunch. (Mark Tushnet, who is as interesting as Cover, has been cited a couple of times in this era--for doctrinal criticisms of Roe and of the Lemon test. )
I don't mean this as a criticism of Balkin, God knows. For one thing, he is influential; for another, my own cite count at the Supreme Court stands at a steady and reliable zero. Most importantly, I don't see not being cited by the Supreme Court as cause for criticism. But I think the clarification is worth making, both because it suggests that this is not just about the indifference of "conservatives" and because it suggests that there might be a broader disconnect between the current state of the "academic legal left" and anyone on the Court--not just because its attentions have turned to projects like political economy, but more fundamentally because none of the sitting Justices particularly share the politics, commitments, or worldview that Pozen describes as characterizing the "academic legal left." I seriously doubt a Justice Garland would change that.
Nothing about this should be surprising; elite judges and elite academics are two different sectors of the establishment with a widening gap between them. But it does suggest limitations for the model that Pozen discerns and praises in the blog: "marrying moral commitment to legal craft" in the cause of "establish[ing], in real time, shared understandings, narratives, and positions about the biggest threats to the constitutional order." Pozen, to be fair, only suggests that the Court was or might be one "plausible part of the blog’s imagined audience or praxis." But perhaps it was always more accurate to think of it, and most legal academic blogs (this one included), as serving the more modest function of providing elite commentary that seeks to influence other elite commentators.
I have a great dissertation topic for anyone who is interested. The National Archives holds hundreds of Section Three amnesty petitions that were sent to Congress during Reconstruction. I've been looking at some of them, but there are far too many for me to examine. And most of them are not digitized. The National Archives catalog entry is here.
Here is one digitized example. The petitions are interesting in that they contain personal narratives from those requesting relief. Some of these narratives are quite detailed, and they come from states and jurisdictions inside and outside of the Confederacy. They also shed light on the original public meaning of Section Three, as I'll explain after I've gone though more of them.
Posted by Gerard Magliocca on January 21, 2023 at 11:25 AM | Permalink
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Friday, January 20, 2023
GPT, write something funny about Academia
happy friday all. Something light and interesting for the weekend. I prompted our pal GPT to "write something funny about academia" and here is what is had to say:
"Sure, here is an example of something that could be considered funny about academia:
"Why did the academic cross the road? To get to the other side of the grant application deadline."
This is a play on the classic joke "Why did the chicken cross the road?" and it pokes fun at the often-stressful process of applying for funding in the academic world.
Another one is: "Why do academics never get anything done? They are too busy writing about it."
This is a light-hearted way to acknowledge the irony of the fact that academics are often focused on research and writing, rather than actually completing projects or making tangible progress.
Please note that these jokes are in good humor, and it's not meant to mock or belittle the hard work and dedication of academics, but to lighten up the stress of the academic life."
I do think it needs to be taught that you are funnier when you don''t feel the need to explain your humor....
happily, when I asked it to write something funny about women's experience in academia, it rejected the prompt writing: "it would not be appropriate to make jokes about a person's experiences, particularly if it is related to discrimination, bias, and harassment they may have faced. Making light of these issues minimizes the gravity of the situation and can be hurtful and disrespectful. As a language model, my goal is to provide accurate and respectful information, and it would not be in line with that goal"
Bizarre (and arguably advisory and ultra vires) opinion in Warren v. DeSantis (Slight edit)
The case arises from Florida Governor Ron DeSantis suspending Hillsborough County (Tampa) State's Attorney Andrew Warren. The court held that DeSantis considered six things in suspending Warren--three impermissible under the First Amendment and three permissible under the First Amendment. DeSantis would have suspended Warren based on the latter permissible grounds had he not considered the former impermissible grounds; therefore Warren's retaliation claim fails under Mt. Healthy. DeSantis violated Florida law in suspending Warren, because those federally permissible grounds were impermissible under state law, because the facts did not show incompetence or neglect-of-duty. But the Eleventh Amendment* prohibits federal courts from granting relief against state officials for state-law violations. Thus, although the court makes a big production of announcing that DeSantis violated state and federal law, it grants no remedy and dismisses Warren's claims.
[*] Really the limits of § 1983, but that ship sailed.
This is a bizarre decision.
• I doubt it is proper for the court to say DeSantis "violated the First Amendment." Constitutional violations occur with adverse enforcement action, not with thoughts or ideas not acted upon. The adverse action here was suspending Warren. If DeSantis would have taken that adverse action regardless of anything related to Warren's protected speech, he did not violate Warren's constitutional rights, at least as we define the scope of the First Amendment in this context. Compare a racist cop who arrests a Black person on a charge for which he has probable cause; the arrest is valid because of probable cause, regardless of any racist ideas or statements the officer makes. We may disagree with that doctrine. But it, for the moments, defines when a government official violates someone's constitutional rights.
• The court should not have declared the state-law validity of the firing. This goes beyond mere dicta or even an advisory opinion. Warren brought a state law claim, which the court dismissed under Pennhurst (again, better if § 1983, but whatever). The propriety of the state-law reasons were not before the court. Worse, if the Eleventh Amendment, as elaborted in Pennhurst, strips courts of jurisdiction over state-law issues, the court pronounced on issues beyond its jurisdiction.
• Isaid the court should have abstained under Pullman and Hinkle's approach to the opinion confirms this. The case always turned on the suspension's state-law validity; the First Amendment provided a sideshow. The court did what Pullman seeks to avoid--passed on unnecessary federal constitutional issues in the face of controlling state-law issues.
• It is hard not to read this as a political shot for Warren to use in the media. He can wave the opinion and say a federal court backs his view that DeSantis ran roughshod over his First Amendment rights. It also represents a political shot at the Florida Senate, which will hold a "trial" on the state-law propriety of the suspension, affirming DeSantis' decision or reinstating Warren. Hinkle has created a detailed legal and factual record, particularly finding that DeSantis' insistence that Warren had a blanket non-prosecution policy was nonsense and that he knew (or at least should have known, had he looked) it was nonsense. This helps Warren in the press and in the public should he lose before the Senate. Warren can compare this opinion to any Senate decision finding the suspension warranted and use it to argue that the Florida Senate made an incorrect, politically motivated decision--"see, we know the Senate made a politically motivated decision, because here is a federal judge showing why the suspension violates federal state law." Hinkle hints at this motive by referring to the "heavily partisan Florida Senate."
Justice Louis Brandeis said that Robert Jackson "should be Solicitor General for life." Or did he? I don't know.
I can't locate the original source for this quote, which often appears in accounts of Jackson's career. (Indeed, I once quoted this line in something that I published about Jackson.) Now I'm wondering if this is a false quote. If anyone knows the original source, I would be much obliged.
UPDATE: The evidence is mixed. Justice Frankfurter and Tommie "The Cork" Corcoran both told Jackson that Brandeis told them that he made this comment to FDR. That's not totally convincing, but it's not unconvincing.
Posted by Gerard Magliocca on January 20, 2023 at 08:31 AM | Permalink
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Thursday, January 19, 2023
Silber, Outside In: The Oral History of Guido Calabresi
This seems like a fine and worthwhile project from Professor Norman Silber (who has also done fine oral histories of Philip Elman and Herbert Wechsler). Here's a description from the publisher, OUP:
Guido Calabresi is an extraordinary person. His family, of Jewish heritage, occupied a secure and centuries-old position near the top of Italian society-- until the rise of fascism. Guido's parents fled to America on the eve of the war in Europe, with their children, to avoid political and religious persecution. They arrived without money or social standing. Guido's talents and good fortune helped him to thrive at several elite American institutions and to become a leading legal scholar, teacher, law school dean, and judge. He would receive prizes and awards for his contributions; to legal theory, especially for opening up the area of 'law and economics'; for contributions to the modern transformation of American law schools, as the Dean of Yale Law School; and for advancing the development of law including through progressive decisions as a member of the United States Court of Appeals for the Second Circuit.
Outside In is a unique sort of account, written in Guido's remarkable voice based on recordings that which took place over a decade. The book is a unique amalgam of oral history and biography, with supplementary commentaries to explain, elaborate, validate, and interpret and situate the personal narrative within its larger historical context.
Part of the reason for the rejection of social trustee professionalism was ideological. Lawyers had long believed that zealously representing one’s (private) clients was essential to fulfilling the rule of law. The zealous advocate was, in the liberal imagination, opposed by another (and equally capable) zealous advocate. After assessing the evidence presented (and tested on cross-examination) by the lawyers for both parties, and hearing the closing arguments made by opposing counsel, a neutral decision maker (judge or jury) issued a verdict. The lawyer thus served an amoral and modest role within a larger justice system. The instrumental justification rejecting social trustee professionalism was economic; in 1980, median lawyer income, in real dollars, was less than it had been in 1970. This decline in income was related in part to a great expansion in the number of lawyers, as Baby Boomers headed to law schools in record numbers. It was also partly a result of high inflation during many of those years, and partly a consequence of changes in the private practice of law.
In difficult economic times, social trustee professionalism was viewed as dispensable by some; for others, the increasing interest in improving law firm income statements, in part by firing partners categorized as “dead weight,” was evidence of a professionalism crisis. “Professionalism” did not enter Black’s Law Dictionary until the publication in 2004 of its eighth edition, in which it was defined as “the practice of a learned art in a characteristically methodical, courteous, and ethical manner.” By then, the “crisis” had been in existence for two decades. One argument made those emphasizing the non-market-base responsibilities of American lawyers was to make “commercialism” and “professionalism” two variables in a zero-sum contest. In this view, commercialism was an effort by lawyers to maximize income, even at the expense of one’s clients. Only a return to professionalism would make lawyers more trustworthy power brokers in American society.
The professionalism movement consisted of several aspects. One effort of the ABA, beginning in the 1990s, was to foster the “core values” of American lawyers. A lawyer’s embrace of the profession’s core values demonstrated that lawyer’s trustworthiness. Core values were initially framed by ALI Director and legal ethics scholar Geoffrey Hazard as comprising “loyalty, confidentiality, and candor to the court.” A 1992 effort known as the MacCrate Report listed four fundamental values of the profession: competent representation; striving to promote justice, fairness, and morality; striving to improve the profession; and professional self-development. A third publication (and second by an ABA committee) listed independence of professional judgment, confidentiality of client information, and client loyalty through avoiding conflicts of interest. The ABA House of Delegates in summer 2000 adopted a resolution listing six core values, from undivided loyalty to competence, client confidences, avoiding conflicts of interest, serving the public profession of the law and promoting access to justice. By the early 2000s, combined lists of professional core values as offered by different bar association entities and bar leaders had swollen the number of such values to eighteen.
As one perceptive critic noted, the lawyer’s loyalty had always been divided by the rules of lawyer ethics. The core value of loyalty, then, made sense only when defined more finely and contextually. One problem with the core values debate was the malleability of the concept. Core values were pitched at a high level of generality; this was necessary in part to avoid conflicts among different core values. The foundation of the idea of core values was unstable. This made it impossible to use core values to generate public (and client) trust of the work undertaken by lawyers.
American lawyers have always been more feared than loved. The public knows lawyers exercise power, and know that they usually do so on behalf of their paying clients. It seems that it is not solely that lawyers are paid by clients to exercise power that leads to public distrust. Instead, it is that lawyers do so while simultaneously arguing their actions are intended to serve the public as well as one’s clients.
In a 1906 essay, lawyer Charles F. Chamberlayne noted increasing numbers of lawyers warned “that the client’s money too largely dominates professional morale; that rising tides of commercialism stifle the cry of its outraged conscience.” Did the ABA’s 1908 code of ethics alleviate this problem? In a 1909 essay, Chamberlayne thought not. The “panacea” for “low idealism” within the profession was a code of professional ethics. This would not do: “To the fervent cry for the bread of moral life a stone of formalism and negation … has apparently been given.” It was “ideals,” not “thou-shalt-nots,” that lawyers needed. Despite Chamberlayne’s critique, the ABA’s code of ethics, consisting of an oath and thirty-two Canons, was quickly adopted by many state and local bar associations. By 1924 an ABA committee concluded “almost all” state bar associations had adopted the ABA’s Code. In practice, this success meant little. From its adoption beyond the end of World War II in 1945, the ABA Code had little influence on the ineffectual and haphazard lawyer discipline process among the states.
When the ABA Code was supplemented in 1928, the oath was de-emphasized in favor of the Canons. (This required the ABA to add a canon regarding the duty to keep client confidences, which duty in 1908 was placed only in the oath.) Between then and the late 1960s, the ABA tinkered at the margins. This tinkering was closely related to an aversion to any communication by a lawyer that might be deemed advertising. Advertising meant that lawyers received money for their work, and elite lawyers found that idea both untasteful and unprofessional, demonstrative of a lawyer’s untrustworthiness. Thus, as the Great Depression wreaked havoc on lawyer income, non-elite lawyers were trustworthy only if the public believed they were independently wealthy.
The legal services economy in the post-World War II era (1946-1969) was extraordinarily favorable to lawyers. Real median income of lawyers, expressed in 1983 dollars, grew from $25,415 in 1947 to $35,300 in 1959 to $47,638 in 1969. During this time of plenty, the ABA decided to replace its 1908 Code with what became the 1969 Code of Professional Responsibility. The 1969 Code consisted of nine broad Canons, “axiomatic principles,” followed by Ethical Considerations, “aspirational in character and [which] represent the objectives toward which every member of the profession should strive.” Lastly, the Code included black-letter Disciplinary Rules, which were “mandatory in character.” The Ethical Considerations were presented as the heart of the Code, for they served as guides to the fulfillment of the lawyer’s professional responsibilities. The distinction between aspirational considerations and mandatory duties came from the writings of Professor Lon L. Fuller. Fuller had led a joint committee of the ABA and the Association of American Law Schools in the mid-1950s. Its Report, published in 1958, warned lawyers that following the rules of lawyer ethics was “not the equivalent to the practice of professional responsibility.”
The ABA adopted the proposed Code in 1969 without amendment. Within three years most states had adopted it as law. Yet the ABA called for a new code of lawyer ethics in 1977. What happened?
University of Texas professor John Sutton principally drafted the Code. He criticized parts as “at worst obstreperous and obstructionistic.” The traditional bias found in the Code included its rabid objection to communications from lawyers to the public, which one critic found created an “ironic contrast” to the goal of access to counsel trumpeted by Canon 2. Additionally, significant aspects of the Code were premised on protecting the economic position of lawyers, not the economic and other interests of clients. Finally, the Watergate crisis of 1972-1974 placed lawyers under a harsh and unforgiving light.
By the late 1970s, American lawyers were divided on the premises of rules of lawyer ethics. One group, which predominated in the Kutak Commission that drafted the new rules, believed ethics rules were premised on the idea of the lawyer as a social trustee. The other group desired a set of bottom-line rules in support of the “basic posture of ‘my client, first, last and always.’” A lawyer as social trustee took into account, when representing one’s clients, of “a determinable public interest.” The lawyer was thus autonomous from one’s client, with the discretion the choose “not to do what should not be done.” The basic posture focused on serving one’s clients, largely ignoring any duty to comprehend the existence of any determinable public interest. By the time the ABA adopted the Model Rules of Professional Conduct in 1983, lawyers promoting the “basic posture” had won the day.
The story of the woman who sued her former partner for infecting her with HPV during a sexual encounter in his car gained attention in June. I offered the case as the latest example of journalistic malpractice in covering the court, where stories snickered about the prospect of a multi-million judgment over car sex, ignoring that the case involved a narrow procedural question--whether GEICO should have been allowed to intervene in the state action to affirm the arbitration award, without (at this point) considering whether sex is an ordinary use of a car triggering coverage..
The story returned to the news last week, when the Supreme Court of Missouri ruled that the trial court erred in denying intervention. GEICO moved within 30 days of receiving notice that it (rather than its insured) was the litigation target and before the trial court entered judgment; state law grants intervention as of right.
The case returns to the trial court, with GEICO able to argue that it is not required to cover. GEICO's federal DJ action, also seeking to avoid coverage, remains pending. Both courts must decide whether sex constitutes an ordinary-and-expected use of a car triggering insurance. Let the snickering resume.
I am fortunate to disagree with Rick on all sorts of things, to have a formation and moral anthropology that differs from his, and to consider him one of my best friends in the legal academy. I say this by way of saying that although we share some common views on the things we've discussed in the last couple of posts, no doubt we have some bottom-line disagreements on other matters--probably including Dobbs itself. But what he writes below strikes me as pretty reasonable and doesn't depend on our respective views on other matters. I want to add a couple of thoughts:
1: Prof. Chemerinsky teaches constitutional law. I get that, and thus why his examples and thinking might center around that subject. People who are heavily engaged on contemporary political issues--which is not every American, not every law student or faculty member, and not necessarily the finest or most thoughtful people in either category--are also likely to focus on constitutional law, perhaps mistakenly and perhaps faute de mieux, for lack of a position in a more appropriate discipline, in thinking about some of the cultural divides Chemerinsky discusses. But of course it goes beyond that. Long before Dobbs, or the current Court, it was a common observation that the legal academy is often disproportionately con law-centric or -obsessed, and Supreme Court-centric at that.
One might ask: Would our understanding of, or approach to, "deep divisions in our society" look precisely the same if we were viewing it through the vast majority of our curriculum, which thinks about things like tort, contracts, property, tax, securities, and so on? I do not mean to minimize the very real feelings Chemerinsky is discussing or, for that matter, to suggest they are irrelevant to those other subjects. But are those feelings as sharp, in the classroom or in our dealings with each other as students and faculty members, when the subject under discussion is contract law? Where there are disagreements about the doctrine on easements, do they fall as simply and as often along trite political lines? Where those disagreements occur, are they handled more civilly? Yes, Chemerinsky teaches con law. But he's also a dean with a whole curriculum at his survey. Has he considered that there are other models, and other places in the same law schools, in which the state of civil discourse, the availability of disagreement without polarization or mutual demonization, and the ways of addressing disagreement are better--kinder, more scholarly, more thoughtful, less vitriolic, more tolerant and welcoming? Why model the whole picture of what's going right or wrong in law or law school, and of what we should use as a tether or orientation point for thinking about students' mindset and how to develop it, around constitutional law and the Court?
I'm not just asking this of Chemerinsky. It is a common observation outside the legal academy, within our general culture, that some of our discursive spaces tend to focus most relentlessly on the things that are most divisive and, in doing so, to neglect vast spaces of normal life, vast numbers of normal people with other concerns, and to exacerbate division. Perhaps it is the case that our endless focus on a few public law subjects, and tendency to define them as the main ground of discussion and debate, has the same effect within law schools. Maybe we would be slightly more encouraged, and find better models for addressing discourse and disagreement, if we looked elsewhere within the curriculum. I might add that, however it might appear to some faculty (faculty like me, who teach public law courses), many or most students are primarily interested in those non-polarized topics, both for intellectual reasons, because those subjects are more interesting and serious, and because they involve the kind of work they're going to do for a long time to come.
2: I do think Rick is right that Chemerinsky's column "others" conservative law students. (Twice, actually: Once up front, and then again when it implicitly assumes that the folks focusing on "change" and "struggle" outside the Court will be progressives. As I survey state and local politics, it doesn't look that way to me.) It also flattens them, lumping them en masse into an unhelpfully broad category. Interestingly, it does the exact same thing to what he calls "progressive and even moderate" students. This is common enough, of course. But it's also terribly banal, and unfair to all the students involved. Maybe one way to improve civil discourse along the political divide is avoid thinking about it in such banal, overbroad categorical terms.
Incidentally, and with apologies for the use of flattening terms, I teach at a law school in a conservative part of the country, and although its students come from all over and even those from right here do not tend to hold views that parallel those of the residents of their state, I'm sure many of those with even somewhat conservative views would say that those views are almost nowhere and never represented or discussed in a serious way by their own law school, let alone taught as interesting subjects. I taught a seminar on conservative legal thought a couple of years ago. It was of course open to all and I taught it, as I teach everything, not because of or about my politics (which are not especially conservative), but because I thought the subject was interesting; because I thought there were students--some of them, but not all, conservative--wanting and waiting to learn about some of this material and not getting it; and because I thought it deserved a thoughtful, critical academic treatment in which the students and I could explore these ideas together. My sense is that the non-conservative students thought the subject was worthwhile and taught fairly--and the conservative students felt "seen," as the hackneyed phrase would have it, and were grateful for the opportunity. There are certainly some clearly "conservative" law schools out there, and some clearly "progressive" ones. But I think there are also plenty of law schools where the views and composition of the faculty--and the courses offered by them--have little or nothing to do with the politics, views, concerns, or interests of the students. This is one problem with a hiring model that focuses on national credentials involving a very few institutions and that over-relies on an ideologically, educationally, and socio-economically narrow cohort: it creates circumstances, for many schools across the country, that can easily lead to a fundamental alienation between faculty and students. And it's an ironic one, given all the fashionable and earnest talk these days about being "responsive" or "listening" to students.
3: Rick writes, "Institutions of higher education -- nonstate ones, anyway -- are entitled, in my view, to organize themselves around distinctive -- and even partisan -- missions, commitments, methodologies, and aims." I tend to agree with him about that, albeit uneasily, and have written about this. But I don't think the AALS is such an institution. I acknowledge that we've had interesting discussions and disagreements on this page in the past about whether the AALS is a learned society, like other academic learned societies, or more like a trade association, or an awkward hybrid of both. Whatever it is, it's not an "institution of higher education" in the way that a specific university is. Its functions and obligations are different. And it seems to me they sometimes include insisting on better and more interestingly diverse panels. (This year's program offerings included an enormous number of panels simply organized around "new voices" or "emerging scholars" or some other standard phrase meaning "not just the same folks again." I cannot imagine the sheer number of panels organized in this fashion was spontaneous; I assume it took place with the urging or at the direction of the AALS. I applaud the move in many respects. How many damn times must we hear from [redacted] at the AALS? My only complaint is that simply organizing a panel around "new voices," rather than coming up with a worthy topic and then seeking out and inviting new voices to discuss it, strikes me as quite lacking in imagination--as mere compliance with a dictate rather than something deeper.) When it comes to the interaction between the AALS, its sections, and its panels, it seems to me the AALS is routinely in the position of leaning both too hard and not hard enough on its constituent parts. It should do some leaning, and send some panels back to the drawing board--but with the "learned society" aspect of its identity firmly in mind.
Like Paul, I did not attend the AALS Annual Meeting this year. In the past, for 15 years or so, I was a regular attendee and participant but, recently, in part because of kids' school-vacation schedules and in part for the obvious reasons, I've been going to the Wasatch Range instead. And, like Paul, reading the program and panel descriptions, I was struck -- I wish I could say I was surprised -- by the strong evidence of a lack of interest, on the part of AALS and Section leadership, in representing the range of informed and intelligent views on panels having to do with, e.g., the Dobbs decision (in contrast with the Federalist Society's event). I heard, from someone who was present, that, when asked by a floor questioner why all of the panelists agreed re: Dobbs's badness, one of the panelists said "maybe because we are right." Maybe.
I did, though, read Dean Erwin Chemerinsky's "President's Message" ("Law Schools, Civil Discourse, and the Political Divide"), in the AALS's Fall 2022 newsletter, which turned up the other day in my mailbox. After noting that "this is a particularly fraught and troubling time in our nation’s history"; that "[t]he country is more deeply politically divided than at any time since Reconstruction"; that "[f]aith in the institutions of government, including the Supreme Court, is at an all-time low"; and that "the vitriol in public rhetoric continues to grow", he writes:
The Supreme Court’s decision to overrule Roe v. Wade and likely to end affirmative action in higher education has led to many of our students being more dejected about the Court and constitutional law than I have ever seen in over four decades as a law professor. Of course, our conservative students are jubilant, but our progressive and even moderate students see a Court that has situated itself solidly on the far-right side of the political divide and is likely to remain that way for years or even decades to come.
It's probably not worth litigating here whether Dean Chemerinsky's sense of where the "far-right side of the political divide" starts is correct and whether he has made the mistake of identifying the views of the typical reader of the AALS newsletter with the American political mainstream. Certainly, it is not the case that, say, doubts about the constitutional bona fides of the anomalously permissive Roe/Casey regime or about race-based college admissions are confined to the "far-right side of the political divide." In any event, it is not surprising that those students who do regret the Court's current composition and output would feel not only safe in sharing, but invited and welcome to share, those regrets with Dean Chemerinsky. Whether he is hearing from a representative sample -- indeed, whether all that many of our students are as focused on the Court, on constitutional doctrine, and on public law generally as constitutional-law teachers tend to assume -- is hard to know.
What struck, and troubled, me, though -- and again, the quote above is not taken from one of Dean Chemerinsky's regular op-eds, but from the American Association of Law Schools' president's message -- was the unmistakable "othering" of "our conservative students" in his account. Any reader -- including any of "our conservative students" -- understands that the "conservative students" mentioned, unlike the "progressive and even moderate" ones, are, really, outside the "we." They exist, to be sure, but they are, and they represent, problems to be overcome, and obstacles to be navigated. They are not the ones to whom (quoting the president's message) "we must provide . . . a basis for hope" -- after all, the president's "hope" is that they will no longer have reason to be "jubilant" -- and they are not (not really) the ones "we" need to make sure "feel included and safe and that they belong." Some of "our" students are "dejected", but idealistic and correct; others are "jubilant" but wrong -- indeed, morally obtuse. If this "othering" is happening in the president's message, I suppose it is probably happening, and being experienced by many students, in a lot of law-school classrooms.
Institutions of higher education -- nonstate ones, anyway -- are entitled, in my view, to organize themselves around distinctive -- and even partisan -- missions, commitments, methodologies, and aims. At the same time, it should not be surprising if attitudes like the ones communicated in Dean Chemerinsky's message prompt pushback from officials and consumers, whose reasons for dejection, and whose hopes, might be different from his.
“Brains were the cheapest meat in the market.” So allegedly said Jay Gould, late nineteenth century Wall Street speculator, railroad owner, financier and, to some, robber baron. One of Gould’s many “brains” was David Dudley Field, one of the most prominent American lawyers of the nineteenth century. Field, his son Dudley, his partner Thomas Shearman, and dozens of other lawyers were handsomely paid by Gould and “Diamond” Jim Fisk for their work in the “Erie wars,” a series of legal battles from 1868-1872. These cases overlapped the indictment of William “Boss” Tweed, leader of Tammany Hall and functionally ruler of New York City government. Field also represented Tweed, after unsuccessfully seeking an appointment to prosecute him. For Field, his actions in representing Gould, Fisk, and Tweed were all within the bounds of conscience. His lawyer-critics claimed his behavior should subject him to disbarment, or failing that, to some type of censure by his fellow lawyers. These critics argued Field had represented his clients beyond the limits of permissible adversarial zeal.
Field made himself an inviting target to his critics because his post-war behavior appeared contrary to his antebellum statements about the ethical limits of zealous advocacy. The 1850 Code of Civil Procedure, popularly known as the Field Code because he largely drafted it, revolutionized pleading and practice. It also included a list of ethical duties lawyers to which lawyer were to adhere. Among those duties were to maintain only “legal and just” proceedings and to “use such means only as are consistent with the truth.” Critics suggested Field failed to live up to his own words.
Field initially represented the not-yet-named robber barons against Cornelius “Commodore” Vanderbilt, who appeared to “own” a New York Supreme Court (that is, trial court) judge, George Barnard. Vanderbilt sought to purchase the Erie; Barnard issued injunctions in Vanderbilt’s behalf. Field obtained counter-injunctions, including making Barnard a defendant and enjoining him from enjoining Vanderbilt. Round and round it went until the parties reached a monetary settlement that nearly sank the Erie. Soon thereafter, Barnard was ready to do the corrupt bidding of Gould.
In 1869, the Erie attempted to take over the Albany & Susquehanna (A&S) Railroad. Among other actions, Barnard issued an arrest warrant for several of its executives, including its lawyer. The arrest of the A&S’s lawyer at its annual meeting in Albany was a regrettable first in legal annals. Another New York Supreme Court judge later declared the Erie’s lawyers had “fraudulently procured an order for [the] arrest” of A&S’s officers.
In late 1870 Field’s behavior was criticized as unethical by several unconnected critics. The more acute limited their attacks to assessing whether Field had acted beyond the limits of adversarial zeal in representing the Erie. Specifically, had the law firm of Field & Shearman acted unethically by repeatedly seeking injunctions from Judge Barnard?
The American Law Review, a Boston-based periodical then co-edited by future Supreme Court Justice Oliver Wendell Holmes, Jr., joined Field’s critics. It called for an immediate examination of “the charges of unprofessional conduct, fraud, and perhaps crime, made in the most respectable quarters, against one of its members, Mr. David Dudley Field.” These calls continued for over two years, and for each criticism Field offered a rejoinder, including obtaining a series of letters from lawyer-defenders. Though intended as exculpatory, none of the twelve letters specifically joined issue with Field’s critics: had Field’s behavior in seeking injunctions from Barnard, when Field’s partner Shearman had credibly accused Barnard of corrupt behavior, itself been corrupt? Further, had the firm acted unethically in obtaining an arrest warrant against A&S’s lawyer? Efforts to disbar or censure Field eventually went nowhere. Barnard was impeached, convicted, and removed from office for corruption regarding his conduct in the Erie wars.
The aftermath of the Field debate suggested that allegations of dishonor retained their sting. However, allegations of bad conduct and defenses to such allegations were more often framed in light of unprofessional behavior. Field himself defended his acts by claiming the lawyer “should defend his client per fas, and not per nefas” (by right, and not by wrong), and he had acted in this light. Such a defense provided a lawyer a clear conscience, which was sufficient to justify the lawyer’s actions. Field and his opponents simply disagreed about which side of the line Field’s conduct fell, insufficient by itself to make the critics’ case.
Beginning in the early 1880s, Alabama lawyer Thomas Goode Jones began drafting a code of ethics applicable to members of the Alabama State Bar Association. It was finally readied and adopted in 1887. Two other voluntary state bar associations quickly adopted the Alabama code. After a respite, nine others joined in, beginning in the late 1890s. These latter bodies did so at a time of transformation. Between 1870 and 1890, the number of lawyers had tripled, an increase outstripping the doubling of the nation’s population. Additionally, the Panic of 1893 had a lengthy and adverse impact on lawyer income. Lawyers writing in general and legal publications asked, can a lawyer be honest and successful? Given the economic stresses on many lawyers, the answer to this question was uncertain. Lawyers complained about pettifoggers, shysters, ambulance chasers (coined at the end of the nineteenth century) and, on the corporate side, “corporation tricksters,” lawyers who represented railroads and other defendants in personal injury matters.
Beginning in 1897, the idea of written ethical codes was revived. The state bar associations that adopted such codes had little in common demographically, geographically, or otherwise. What they may have had in common was a crisis of professional identity. In a rapidly changing society, what were the responsibilities of lawyers to their clients, their communities, the courts, and other lawyers? As bar associations considered what rules to adopt, the American Bar Association, in 1905, agreed to look into drafting a code. The next year it formally decided to do so, and it adopted a code of ethics in 1908.
Andrew Coan has this excellent post at Balkinization examining claims that the Supreme Court is changing "too much, too quickly." It is of a piece with his recent article, also excellent, titled "What's the Matter With Dobbs?" Neither the post nor the article require the reader to believe that Dobbs is anything but wrong in various senses of the word. (In his article he notes that he believes the opinion was "wrong, gratuitously cruel, and poorly reasoned in many respects." But he rightly notes that he considers that conclusion "not germane" to the argument he is making in the piece, and rightly notes as well that his reasons for that view are banal--as would be similar arguments for Dobb's rightness. I also tend to think Dobbs is wrong, and my views on the subject are also banal.) But both the post and the article look seriously and critically at the language we use to criticize the Supreme Court and its opinions, note the distinction between criticisms based on moral disagreement and those based on lawlessness or illegitimacy, and remind us of the value of "specifying what, precisely, is wrong with the changes of the past Supreme Court term and those looming on the horizon" and some of the dangers, intellectual and political, of mislabeling or misidentifying one's criticisms. I suppose I would add, specifying precisely, accurately, and candidly. One ought not need to add this--no one thinks Professor Jamal Greene is a fan of Dred Scott or Plessy, but no one I am aware of condemns him for arguing that their anticanonical status does not mean, or even suggest, that they are of "uniquely low quality" in terms of conventional constitutional analysis--but I'm afraid one does need to add it.
I was not at AALS this year--this year's program listings, on the whole, did not strike me as especially good or imaginative--so I did not see the Constitutional Law Section panel on Dobbs. Just as a headline is not an article, so a description of a panel discussion is not the panel discussion itself. I still feel comfortable suggesting that, if it was beyond imagining that the panel might have included someone defending Dobbs or offering some other, more genuinely heterodox position, it certainly had ample room for a thoughtful, independent interlocutor like Coan.
Perhaps the most eventful experience in David Hoffman’s life occurred when he was nearly lynched for actions related to his opposition to the War of 1812. Hoffman and other Federalists battled supporters of the war, resulting first in the deaths of several supporters, and, after the arrest and jailing of Hoffman’s compatriots, the murder of one of those jailed. Hoffman would have been hanged “but for the providential interference of a stranger, who satisfied the murderers that they had got hold of the wrong man.”
Five years later, Hoffman’s A Course of Legal Study was published, praised by Justice Joseph Story and others. It was intended to serve those interested in learning law; soon after its publication Hoffman began lecturing interested law students in Maryland. The 1817 edition included a list of readings concerning how lawyers should act. In 1836, the second edition of A Course of Legal Study was published. Over twice the length of the original, the second edition included an introductory essay on the standards of behavior, followed by fifty Rules in Regard to Professional Deportment. Hoffman’s essay and rules were premised on the lawyer’s duty to act honorably. Too often lawyers exercised power in search of wealth and fame. Neither demonstrated a lawyer was honorable, which was the true measure of professional success. Only when lawyers sought honor did they elevate both themselves and the legal profession. His introductory essay used “honor,” “honorable,” and “honorably” thirteen times. Hoffman’s Rules were also premised on the idea of honor, using it or its variants eleven times.
Hoffman’s second edition was poorly received, selling poorly and reviewed rarely. In 1846, Hoffman’s Hints on the Professional Deportment of Lawyers was published. Hints reprinted in one book all of Hoffman’s writings on lawyer ethics. Hints wasn’t received at all; neither the remaining existing legal publications nor literary magazines reviewed it. And it appears it sold worse than the second edition (which was also reprinted in 1846). Hoffman moved to England in 1847. He returned to the United States in 1854, the year in which he died.
Hoffman embraced aristocracy; to be called an aristocrat was a term of honor. He excoriated Jacksonian democracy as “jacobinical” mob rule. But he was an aristocrat living in a democratic age. This made his Rules both incisive and out-of-date. For example, Hoffman condemned the lawyer who purchased the client’s interest in the case, for that purchase occurred only after the lawyer knew the strength of the case. This was a conflict of interest. Hoffman contrasted such cases with a lawyer’s taking a case on a contingent fee. That was permissible, for it permitted poor clients to obtain representation when otherwise impossible. Further, an honorable lawyer provided the same diligence to every client, no matter how large or small the matter. And an honorable lawyer returned a client’s money before any need to request it. An honorable lawyer simply did not take advantage of one’s clients.
But Hoffman’s emphasis on honor also led him to promote ethics rules lawyers had already discarded. Hoffman urged lawyers not to plead either the statute of limitations or the defense of infancy against an honest demand. Hoffman was well aware that both defenses were permitted by law in Maryland. But he reserved to the lawyer the position as “sole judge … of the occasions proper for their use.” To aid a “guilty” client to evade responsibility by use of such defenses was to diminish the honor of lawyers. Lawyers ignored Hoffman’s pleas to maintain their honor, as other writers urged a slightly different path.
One of those writers was Timothy Walker. In an 1839 speech to law graduates, Walker emphasized conscience rather than honor. Though Walker, like Hoffman, urged lawyers to avoid dishonorable means when practicing law, Walker interpreted honor to mean a lawyer should practice law with integrity and dignity. Walker’s intention was to permit lawyers to represent a client with a “bad cause,” which Hoffman rejected. If the lawyer could keep his conscience in representing the bad cause, the lawyer was acting consonant with moral principles: “[A] lawyer is not accountable for the moral character of the cause he prosecutes, but only for the manner in which he conducts it.” Walker gave three reasons why a lawyer should take “doubtful” cases: first, prejudging a case might lead the lawyer to error; second, the lawyer did not keep the client’s conscience; and third, “Every man … has a right to have his case fairly presented before the court.”
The concept of lawyerly honor faded slowly, as internal conscience began to replace external honor as the standard for assessing lawyer behavior. By the early twentieth century, newly-created bar associations, including the American Bar Association (1878), resolved to create written rules of professional conduct. Part III suggests several reasons why American lawyers, particularly elite lawyers, considered it necessary to establish such rules.
Following on thisexchange on oral assessments: My Civil Rights class this semester (first meeting this morning) will not include a large end-of-semester writing project, only oral arguments (plus three short in-semester papers and class participation). The three papers are worth more than the arguments, as school rules require. But students can focus all attention to the arguments as the capstone to the class.
I am curious to see if it makes a difference in the quality of arguments or in my ability to evaluate overall performance.
Now that Republicans have organized the House, questions are being asked about whether the debt ceiling will be raised this Fall. If that does not occur in time, Section Four of the Fourteenth Amendment will be suggested as a possible remedy. This point was discussed at some length a decade ago during that debt standoff, but with no conclusion. I thought I would give a brief primer.
The key takeaway is that Section Four does not give the President or the Treasury Department the power to raise the debt ceiling. At most, Section Four gives the Treasury discretion to prioritize debt service over other federal spending. But only to the point that money is available. Would bondholders have a Section Four cause of action if the debt ceiling is not raised? Probably, but only if a payment is missed. This did not happen in the prior debt ceiling confrontations. The next one could be more severe though.
Posted by Gerard Magliocca on January 9, 2023 at 10:19 AM | Permalink
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In my book The Lawyer’s Conscience: A History of American Lawyer Ethics (2023), I assess the ways in which lawyers have justified the power they possess and the manner in which they exert such power. The most important justification given by lawyers is the claim that lawyers are in the marketplace but not of the marketplace. Though lawyers were in the marketplace offering their legal expertise for fees from paying clients, they were not of the marketplace because they exercised power subject to some ethical constraints. The Lawyer’s Conscience traces the history of American lawyer ethics from 1760 to the early twenty-first century. My goal in this and following posts is to provide a brief sketch of this history.
How do we decide whether American lawyers are sufficiently trustworthy to continue the work they undertake? First, “we” needs to be disaggregated. “We” includes, among other possible inquisitors, the general public, current and prospective clients, and American lawyers themselves. The demand of trustworthiness made by each of these disparate groups may end in contradiction. To satisfy the demands of a client may conflict with the demands made by the public or other lawyers. And demands made by other lawyers may conflict with the general public’s requirements. Second, some trust in lawyers is necessary because lawyers possess extensive power and authority in American society.
In a series of essays written in spring 1786 for the Boston Independent Chronicle, Benjamin Austin Jr., writing as Honestus, argued Massachusetts lawyers were a “useless” and “dangerous” body that should be “annihilated.” Ten of his essays were published under the title, “Observations on the Pernicious Practice of the Law.” In subsequent editions of “Observations” he modified his call. By the 1819 edition, Honestus’s Prefatory Address concluded the work of lawyers was now “more congenial to the happiness of society,” in part due to his earlier excoriation of professors of the law. They no longer needed annihilation, but “regulation.”
Honestus’s 1786 attacks were joined by some, and rejected by others, most vociferously by lawyers. One of the lawyers responding to Honestus was the well-respected James Sullivan, writing as Zenas. Zenas made several arguments in defense of Massachusetts lawyers. First, they were necessary to a free government. Second, the written Massachusetts Constitution of 1780 and the Commonwealth’s laws also made lawyers necessary. Third, lawyers were subject to effective “checks on their conduct,” making improvident the call for annihilation. In expanding on this last point, Zenas admitted some lawyers were “men of bad morals and dishonest hearts.” But no profession could ever keep itself pure. Overall, most lawyers in the Commonwealth were honorable. They acted honorably for instrumental reasons: their “bread as well as the character of the practitioners of the law depends on their integrity and uprightness.” Zenas also pointed to the 1701 oath of admission subscribed to by all Massachusetts lawyers: it required the oath taker to act “so as to do honour to Court and bar.”
It was unclear whether Zenas believed the 1701 oath had some constraining effect on lawyers of bad morals and dishonest hearts. It was also unclear whether Zenas meant to tie tightly the lawyer’s interest in making money and in fostering an honorable character with honor.
Honestus offered a piercing response to both Zenas and another correspondent, “A Lawyer.” Both had offered “a few bad apples” argument, charging Honestus confused the immoral actions of a few with the good work of most lawyers. Like Zenas, A Lawyer had admitted some “abuses in the profession, productive of private distress and public uneasiness,” had occurred. Honestus, noting that Zenas had pointed to some of the language in the 1701 lawyer’s oath to defend lawyers, mentioned a provision in the oath ignored by his opponents: a lawyer was to inform the General Court (which supervised lawyers admitted to the bar) if another lawyer had spoken falsely. If A Lawyer knew of some abuses in the profession, why had he not informed the Court of these abuses and urged the Court to strike the names of those abusers from the roll, disbarring them? No answer was forthcoming.
Honestus was the most prominent but not only writer vociferously attacking the trustworthiness of lawyers and the work they did. Other events (Shays’s Rebellion, the 1787 Constitutional Convention) soon displaced published antilawyer sentiment. Such sentiment did, however, rise and fall during the next half-century. Lawyers continued to refer to honor as the touchstone of appropriate lawyer conduct. But relying on honor alone as providing sufficient evidence of trustworthiness among lawyers was fading. Its last defender, writing in 1836, seemed to understand he was fighting a losing battle.
Until I began researching my book on Justice Jackson's Youngstown concurrence, I did not know that he probably got the phrase "zone of twilight" from an earlier Attorney General opinion.
In 1937, Assistant Solicitor General Golden W. Bell wrote a memo on "The President in the Field of Foreign Relations." The memo was a response to the Neutrality Acts that were moving through Congress at that time. After summarizing the inconsistent history and practice, Bell concluded that public opinion was the most important factor in assessing difficult line-drawing questions on executive power. He then said:
"In the field of foreign relations, the Chief Executive moves in a zone of twilight where he may proceed with assurance of his powers under the Constitution only when the people follow and approve."
This line is not identical to Jackson's, of course, but it does capture some of the spirit of Category 2 of Youngstown. Moreover, Bell's opinion appears to be the source of the some the citations in Jackson's opinion (for example, the competing views of Hamilton and Madison and TR and Taft on executive power). Jackson was an Assistant AG in 1937, which means that he could have seen the opinion then.
I don't know anything about Bell other than that he served from 1935 to 1939. But I hope to learn more about him.
Posted by Gerard Magliocca on January 8, 2023 at 09:00 AM | Permalink
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Saturday, January 07, 2023
FTC announces a proposed rule to ban all noncompetes nation-wide
This week the FTC released a Notice of Proposed Rulemaking to prohibit employers from imposing noncompete clauses on workers: "True to their name, noncompetes block people from working for a competing employer, or starting a competing business, after their employment ends. Evidence shows that noncompete clauses bind about one in five American workers, approximately 30 million people. By preventing workers across the labor force from pursuing better opportunities that offer higher pay or better working conditions, and by preventing employers from hiring qualified workers bound by these contracts, noncompetes hurt workers and harm competition. Noncompete clauses significantly reduce workers’ wages. When employers use noncompete clauses to restrict workers from moving freely, they have the power to suppress wages and avoid having to compete to attract workers. Based on existing evidence, noncompete clauses also reduce the wages of workers who aren’t subject to noncompetes by preventing jobs from opening in their industry. According to FTC estimates, the proposed rule could increase workers’ earnings across industries and job levels by $250 billion to $296 billion per year. Researchers also find that banning noncompetes nationwide would close racial and gender wage gaps by 3.6- 9.1 percent. Noncompete clauses stifle new businesses and new ideas. Existing evidence shows that noncompete clauses hinder innovation in several ways—from preventing would-be entrepreneurs from forming new businesses, to inhibiting workers from bringing innovative ideas to new companies. In markets with fewer new entrants and greater concentration, consumers face higher prices—as seen in the health care sector. Noncompete clauses can exploit workers and hinder economic liberty. Workers often have less bargaining power than their employer. In many cases, noncompete clauses are take-it-or-leave-it contracts that exploit workers’ lack of bargaining power and coerce workers into staying in jobs they would rather leave. To varying degrees, each state restricts employers’ ability to enforce noncompete clauses due to concerns that they harm workers and threaten a person’s ability to practice their trade. Employers have other ways to protect trade secrets and other valuable investments that are significantly less harmful to workers and consumers. Employers often justify using noncompetes with their workers to protect confidential information and to get the most out of their investments in training and capital. But the record to date shows that in California, North Dakota and Oklahoma—three states in which employers can’t enforce noncompete clauses— industries that depend on trade secrets and other key investments have still flourished. This shows that employers have other ways of protecting these investments."
music to my ears! Exciting also that the definition of noncompetes in the proposed rule includes "de facto" noncompetes:
"The term non-compete clause includes a contractual term that is a de facto non-compete clause because it has the effect of prohibiting the worker from seeking or accepting employment with a person or operating a business after the conclusion of the worker’s employment with the employer. For example, the following types of contractual terms, among others, may be de facto non-compete clauses:
i. A non-disclosure agreement between an employer and a worker that is written so broadly that it effectively precludes the worker from working in the same field after the conclusion of the worker’s employment with the employer.
ii. A contractual term between an employer and a worker that requires the worker to pay the employer or a third-party entity for training costs if the worker’s employment terminates within a specified time period, where the required payment is not reasonably related to the costs the employer incurred for training the worker."
The notice and comment period will being soon. Do let me know if you'd like to join and submit a comment.
Call for Papers - The British and Irish Law Education Technology Association 38th Annual Conference - Amsterdam in April (submission of short abstract due Jan 10!)
BILETA Conference 2023 warmly invites individuals to attend and participate in its critical and topical discussions on the future of law, technology, intellectual property, and legal education. Papers are welcome from academics, researchers, practitioners, postgraduate students, those in business or practice, activists and anyone else with an interest in technology in the law (broadly construed) and legal education. Participants are welcome from any country to enjoy the scholarly, social and cultural experience of BILETA. In 2023, BILETA will return to Amsterdam.
Although the conference is fully hybrid, we hope to meet you in person here. The BILETA AGM will take place on Wednesday 12th April.
Call for papers and more details available here. Deadline: 10th January 2023.
A Speaker was finally elected this morning. When the Speaker swore in the members-elect, no challenges were made as to their qualifications. After 1AM is not an ideal time to drag out the proceedings, I suppose.
In any event, the result is that we will not see any further formal action regarding Section Three of the Fourteenth Amendment until the Fall. At some point, there will be a filing deadline for a state presidential primary in which a judicial challenge can be made to a candidate's eligibility or where some election official has the authority to make the initial determination. I don't know which state will meet those criteria first or when.
Thus, my plan is to begin a Section Three blogging moratorium today. I'll concentrate instead on the usual stuff (what the Supreme Court is up to) and on the book that I'm now writing on Justice Jackson's concurrence in Youngstown. Indeed, I'll have another post up on that later today or tomorrow.
Posted by Gerard Magliocca on January 7, 2023 at 08:01 AM | Permalink
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Friday, January 06, 2023
More "Useless" Writing, Please!
This piece by Maksymilian Del Mar, beautifully titled "The Most Useless Book in the History of International Law"--who would not want to get a review with a headline like that!?!--is lovely. It's a review of Gerry Simpson's book The Sentimental Life of International Law: Literature, Language, and Longing in World Politics. I give due credit to the book that inspired it, but in the meantime the review is certainly the most interesting and useful piece of legal scholarly writing I have read in a year or two. It is, somewhat rhapsodically, a tribute to the kind of writing about law we ought to expect, and expect from ourselves, not just in international law but in any area: writing that "draws on and hunts down the awkward spaces, the misshapen, the perverse, the absurd, the accidental, the incongruous, the irrelevant, the irreverent, the 'obscure,' the 'muddy'"; that is "'playful[ ], rebellious[ ], [and] scurrilous[ ]," "speculating, hesitating, postulating, hypothesizing, punning, fantasizing, gossiping, juxtaposing, quipping, raconteuring, [ ]delighting in indirection or even misdirection"; writing that is ironic and comic; writing touched by the spirit of Diogenes; writing that skips "solemnity and high-mindedness."
Del Mar ends up somewhere different than I might, as no doubt does Simpson. But, if for different reasons, I can endorse his conclusion: "Literature, it turns out once again, is of crucial ethical and political value: it enables us to combine self-critique and hope, while enjoying ourselves. What could be more important—dare I say, more useful—than that?" I'm not sure the writing described is needed now more than ever; it's always needed--there is never enough irony in American letters, and barely any of it in the academy--and no era doesn't count as a "now more than ever" era to those who are experiencing it. But I can say with confidence that many legal academic writers feel, or profess to feel, that their writing ought to be "useful"--and that I've seen no evidence whatsoever that "solemnity and high-mindedness" actually are useful qualities in any tangible sense.
On the Enduring Importance of Reassuring Myths for the Professional-Managerial Class
The Times today has a story pursuing a theme it began pushing only a few weeks ago: that business schools are now deeply, busily, thoughtfully engaged in reexamining their core values and those of corporate culture. Today's version is particularly enjoyable, coming as it does in the form of a review of a new, $600 million building on the campus of Columbia University, named for Henry Kravis and "separated from an eight-story structure named for the entertainment mogul David Geffen by a circle of grass, trees and benches embedded in a plaza." Written by an architecture critic for the paper, it explains, if I understand it correctly, that the trick to "do[ing] good as [you] make money," or I guess at least feeling as if you're doing good while you make money, involves how you place your stairways. Who knew?
Some Generalizable Points About Institutional Crisis
In his op-ed today about why the House Speakership affair "reflects larger structural forces that are changing American democracy," Rick Pildes lists some factors that he suggests serve as "forces of fragmentation [that] will continue to bedevil the leaders of both political parties, as they do parties throughout democracies today." The headline--or at least the current one I'm seeing, since the Times editorial section unfortunately tends to A/B many of its headlines these days--chooses to focus specifically on "the fringiest fringe of the G.O.P." That choice surely is meant to appeal to the preferences and prejudices of its readers, but it misses the very points Pildes is making. (A mere three paragraphs in, Pildes observes that the same factors at work in the speakership kerfuffle have also led to the rise of Alexandria Ocasio-Cortez.)
I would take his point a step further. The features he lists contribute to problems for a great many institutions, public and private, whose welfare we should be concerned about. Consider those factors:
"Revolutions in communications and technology...[that] have enabled individual members of [an institution] to function, even thrive, as free agents."
A resultant "flatten[ing] [of] institutional authority."
The greater ease that technology provides for "individuals and groups" to "mobilize and sustain opposition to [institutional] action."
A resultant increased lack of ability for institutions to assert authority, which allows for "intense factional conflicts" to rage within those institutions without any ability to curb them effectively.
An "explosion of small-donor donations"--to which one could stretch a little and add things like GoFundMe, Internet "side hustles," and so on--which allows individual members of institutions to raise money without having to depend on institutional sources of funding.
I am not criticizing these things as such, nor am I ignoring the dangers of ossification or the problems with establishments. But I would note that all of them have been lauded by all sorts of people, of all sorts of political persuasions, on all manner of occasions. They are certainly sexier and more au courant than talking about "institutions" or "authority." But, as the op-ed suggests, when it really counts to have those institutions functioning properly and authoritatively and with some kind of institutional loyalty or shared sense of institutional mission on the part of their members, it turns out that all these factors have corroded those institutions' ability to do any of these things.
As I noted the other day, most of these factors have been instrumental in the corrosion of the legacy press and in its replacement by dubious alternatives to those mainstream institutions. And as I suggested in my post on the legacy press, these factors are at work in the academy as well--with, I would argue, similarly corrosive effects. And the list could easily go on. A decade ago I wrote about the importance of institutions in the First Amendment and the activities it protects, which are the stuff of social and political life. A decade later the general sentiment for those who care about such things is that these institutions are in crisis. This week's events are just another data point.
One source of that crisis is a sense of indifference to institutions among many, one that can be highly dangerous even if it is also sometimes earned, and a focus instead on the individual. Another is a lack of authority, and a lack of willingness on the part of institutions to wield what authority they still have. The factors Pildes points to have something to do with both these things. So does the all-too-frequent tendency to treat all of these these as positive developments, or to laud them while cherry-picking and dubiously defining some particular evil, such as "misinformation" or "disinformation," without acknowledging that those evils are simply the fruit of a lack of institutional loyalty, commitment, and authority. (What spectacle could be more enlightening on this point than universities speechifying about a decay in social attachment to truth while simultaneously putting out press releases about how some faculty member has made it onto a list of "most influential people on Twitter." Even now someone is penning an article for the Journal of Legal Education talking about how to build your own brand as a professor, or rhapsodizing about the importance of meeting some younger generation "where it lives" while studiously avoiding critical evaluation of any of the values or structures it discusses.)
I do not think any of the things listed above are bad. I like most of them at least some of the time. But I do think all of them are far from unqualified goods, that things like authority and loyalty are too often wrongly treated as suspect or boring, and that, just as parties and government bodies are not the only institutions we need for a functioning civil society, so the institutional crisis Pildes discusses, and the factors he points to, are hardly limited to the GOP, the House, political parties, or official organs of the state.
Of course it is worth focusing on the trash-fire in the House, but I hadn't realized until this week that the Senate has also broken with tradition in officially electing Senator Patty Murray as president pro tempore, rather than the senior member of the Democratic caucus, Senator Dianne Feinstein. The news did receive coverage when the caucus selected her after nomination by Sen. Schumer in early December. But it certainly did not receive sustained coverage or deep-dive reporting. Stories like today's in the Times are not atypical, describing Feinstein as having "turned the position down" (the Times) or having "declined to seek" the position (the Post). Today's story in the LA Times elides the question by simply not discussing it at all. The story may have been covered differently in the more openly partisan press, which I mostly don't read, and the occasional story
Of course this is a dignity-saving lie on the part of the caucus and half-truth on the part of the press, which, despite earlier, better, and braver coverage, has been less willing in the latest round of stories to say the obvious: that Feinstein is not able to serve in the job, certainly lacks her colleagues' confidence that she can, and may not be competent to serve in her office at all. (The story may have been covered differently in the more openly partisan press, which I mostly don't read, and the occasional story elsewhere is more forthright.) But it seems worth remembering to me, as we continue to slide into gerontocracy. At least Sen. Murray is only 72--unlike Patrick Leahy, who just passed along that office (and retired from the Senate) at the age of 82, or Feinstein, who is 89, or the President, who is 80, occupies a less ceremonial and more demanding job than at of president pro tem, and, like the rest of us, is not getting any younger.
Muller on US News and Law-Professorial Salaries--Which Surely Ought to Be Lower
Derek Muller continues to provide excellent coverage and commentary on the ongoing US News rankings story. Yesterday he had this post, which asks, as the title of the post puts it, "By knocking off expenditure metrics and devaluing peer reputation scores in the USNWR formula, did law schools just kill the faculty's golden goose?" His argument, in brief:
[I]t may well be that law schools have permanently lost one of their most significant bargaining chips with central universities in trying to secure more funding for the law school....Law schools could [previously] make the case to central administration that high spending on resources, including on law professor salaries, was essential to keeping one’s place in the rankings. No longer. It’s worth considering what financial incentive this may have on university budgets in the years ahead, and the allocation of resources.....And indirectly, the 40% of the formula for reputation surveys, including 25% for peer surveys and 15% for lawyer/judge, was a tremendous part of the formula, too. Schools could point to this factor to say, “We need a great faculty with a public and national reputation, let us hire more people or pay more to retain them.”....Now, the expenditure data is gone, completely. And peer surveys will be diminished to some degree, a degree only known in March....Some increase in the measurement of outputs, including bar passage data and employment outcomes, will replace it. For law faculty specifically, and for law schools generally, this is a fairly dramatic turn of events.
It's an intriguing and entertaining thought. And I would add something else to it. For lo these many years, the increasing trend in law school faculty hiring has been to hire 1) people with doctorates in other fields and 2) people who have completed, at a minimum, two-year fellowships, and sometimes even longer-term pre-hire academic stints, as witness the increasing number of doctoral students in law in the U.S. who have become full-time faculty members. (Faculty hired from abroad have often had doctorates in law; the increasing number of domestic doctorates in law and the willingness of law schools to actually hire them is the new bit--or rather, the re-new bit, since they used to be more common and then seemed to fade.) In short, one way or another and for lots of reasons, many of them bad, law schools have been turning faculty hiring into a kind of uglier twin of university hiring across campus, seeking parallels or proxies for the same kinds of longer-term academic commitments and training that are reflected in doctoral and post-doc studies in other fields. Law schools have been academicizing their faculty, more or less, and increasingly they have done so even for faculty members without doctorates in other fields.
Like a doctoral student in other fields, a law school graduate who (after the usual very brief stint as a clerk and in practice) takes the academic path sacrifices several years of active practice, gives up what might have been a remunerative job and certainly a potentially remunerative career path, and instead shows a deep commitment to the academic career track. And the question obviously arises: Why the hell would we, or need we, then pay those individuals more than academics in other disciplines?
Taking a two-year (or more) fellowship, let alone a doctorate in law, and devoting that time to teaching and often-abstruse scholarship is a clear signal of that person's willingness to accept less pay to gain the intellectual joys and many personal conveniences of life in the academy. More than that, it is a clear signal to the rest of the legal market that that person would rather be an academic, a signal that is compounded by taking them out of training and practice as a lawyer for an extended period of time. The "I could always leave this job as a law professor and get wealthy as a practicing lawyer" line, which happily is said more often about law professors than by them, was always pretty mythical. (That includes the organizing myth that being a smart law student in the sense that leads to the credentials that matter for law school hiring is a good indicator that one would be wealthy or successful as a practicing lawyer. Hooey.) But surely it is now not only mythical but nonsensical. In order to get the credentials that get you hired as a law professor, law schools now demand that you make a substantial commitment of time and allocation of intellectual resources that is almost tailor-made to devalue you as a prospective hire in the more practical and lucrative sectors of the legal profession.
If what we want is to hire law professors who walk and talk like academics, why on earth shouldn't they be paid like academics--by which I mean, of course, paid like other academics, folks who teach history or literature or biochemistry? And on the cross-disciplinary front, if we want law professors with doctorates in history or economics or some other academic field, why shouldn't we pay just enough to get them to come to a law school instead of their other academic department (assuming a premium is needed; it might not be, either because they're not as impressive in the other discipline or because we offer other perks that aren't available across campus), and not a penny more?
As a side note, one might observe that medical school professors do a good deal better salary-wise than professors in, say, analytic philosophy. I've done a little reading about this but don't have much personal experience on this question. But it should be noted that there may be differences between, say, the MD who is hired to teach but also has substantial practice and clinical responsibilities and opportunities, and a pure Ph.D pursuing only pure research, and even if the latter is paid well much of that may be funding-based or supplemented by earnings from intellectual property. We could pursue a hiring model that more closely resembled this, in which case we would demand and expect that our professors be active practitioners. What we are actually doing is seeking people who...look more like analytic philosophers. We ought to pay accordingly, surely.
As Derek suggests, for some time one answer to that point has been the US News rankings and the metrics they used. The change in those metrics reduces the incentive to pay any better than other departments do. (Or we could get rid of rankings altogether, or come up with better rankings. How many of those would actually require high professorial salaries?) Certainly, when added to the US News change, it's harder to justify high salaries relative to the rest of the academy according to the "otherwise they would go into private practice" argument, when our hiring practices are tailored toward finding people who, in Stantz-like fashion, have demonstrated their commitment to not going into private practice--and then damaging their attractiveness to that alternative market on top of it.
As a further side note, it seems to me that the folks for whom higher salaries compared to other sectors of the university are probably most justified are clinical faculty, because their ongoing practice of law makes their transition back to a competing legal employer more plausible at any given time. They are the ones closest to clinical medical faculty--not we fancy-pants doctrinal types. (Of course, the heavy and perhaps odd or obsessive concentration on "clinical pedagogy" and so on, which makes clinical faculty look more like doctrinal faculty in their academic profile and in their demonstrated commitment to not going back into full-time practice, may militate against that argument.) And there are some faculty who could argue, on the basis of the lucrative consulting that they do, that they really could go back into practice. (That's not me. More's the pity! Feel free to dangle a consulting offer at me.) It seems to me the answer is to give them opportunities to supplement their income with such consulting, while keeping their university salary closer to the one the rest of the campus subsists on. The change in US News metrics suggests that if they threatened to leave under such circumstances, the institution qua institution would have less reason to fear their making good on the threat.
One last aside: One way law schools manage to pay as much as they do is by soliciting donors for endowed chairs--a rather large number of them. I dare say the money could be much better spent. I wonder whether some of those donors would be as eager to give if that money weren't going to a named chair, even if that money could be better used in other, less visible ways. But if Derek's general argument about the effect of changing the faculty reputation metric is correct, then one might think there would be less incentive for deans to to go out and fund-raise for those chairs, as opposed to using their time in other ways or focusing more of their energy on raising money that might be smaller in amount but better suited to the actual needs of the institution.
Although it's not strictly necessary, I should add that my goal here is not to criticize the model of hiring we appear, willy-nilly, to have chosen, or to make some standard point about academics vs. practice. There are obvious benefits to be had from people specializing more deeply. (I do think our current hiring model is not well thought out, is, shockingly, engaged in more reflexively than thoughtfully, and is bad for a number of different forms of diversity. But I still can see reasons for it and benefits from it.) The "intellectual joys" I mention are real, and emphatically include teaching. Abstruse scholarship is not necessarily bad and practical scholarship is not necessarily good; you've got to read the actual piece before deciding whether it's any good, among other things. Faculties can benefit from having more practically-oriented and more abstract or purely intellectually oriented members. But all of this is not the point of the post, which is simply to ask how much, given the structures I've discussed, we actually need to be paying in salary for the kind of faculty that we appear to want most, and perhaps how much university administrations ought to allow us to pay.
Derek also has some useful thoughts in his post on the value of having a ranking-independent institutional vision, something that law schools have generally not had to bother with as long as the golden calf of US News rankings and the worldview they represent served as a substitute. I'll offer an addendum to that in a future post.
I am quite heartened to see the House of Representatives actually engaging in a debate with everyone present. This used to be the norm, but nothing like that has happened in ages. Granted, this is just an internal GOP-debate for now, but still.
How can a power-sharing arrangement could work if a Speaker can be elected only with votes from both parties. Maybe that's next week's discussion.
Posted by Gerard Magliocca on January 4, 2023 at 01:59 PM | Permalink
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Tuesday, January 03, 2023
AALS 2023 begins!
I feel the need to apologize for the rain! It almost never rains here, but we do need some rainy days. Still, even when its drizzling, walking along boardwalk and watching the waves is fun. And there's lots of indoor offerings too. Here is my recent post about top things to do here -
and please come introduce yourselves at one of the panels and/or the USD Roy's sushi reception on friday - which all AALS attendees are invited to.
Yesterday was a great pre-conference adjacent conference downtown San Diego on criminal justice and racial bias keynoted by Tom Tyler who spoke about the need to move from disparate treatment and intent to disparate impact and systematic inquiry about situational bias. The conference was hosted by the Institute for Human Studies at George Mason University, which brings diverse and interdisciplinary scholars together in great programs.
Tomorrow if you are interested - we are having a panel cosponsored by the Contracts Law section and the Labor Relations and Employment Law on The Uniform Restrictive Employment Agreements Act ("UREA") and Emerging State Law -- on noncompetes, ndas, and talent mobility - and federal and state new efforts. See you downtown!
I stopped watching football about seven years ago. I reached a point that I could no longer watch and enjoy what had become gladiatorial. And I watched and read enough to believe that, given the game's nature and object, they could not make it "safe" or even "safer." Too many hits, large and small. I was done.
That said, I do not regard what happened to the Bills' Damar Hamlin as further evidence of football's unsafe nature. The collision between Hamlin and the Bengals' Tee Higgins was not unusually hard (for football). Some cardiologists speculate he suffered "commotio cordis"--cardiac arrest arising from an impact to the chest during a miniscule (40 millisecond) point in the heart's electrical cycle. Watch the play and the theory makes sense. Hamlin is standing someone upright and moving sideways when Higgins, moving forward, leads should-first into Hamlin's chest; Hamlin wraps his arms around Higgins and pulls him to the ground. But the point of contact between the two was the middle of Hamlin's chest.
This injury is neither unique nor common to football. It is more likely in baseball and hockey, especially among young players--taking a ball or puck to the chest at that vulnerable moment in the cardio cycle. And even then it is incredibly rare--15 or 20 cases per year, according to a 2017 story--and less common among adult athletes (something about the hardening of the chest wall as the body matures). At worst, it is a risk inherent in all sports. Not another reason (as if I need more) to turn away from football.
Whither laptops in the (in-person) classroom? (Updated)
Pre-COVID, the trend in higher ed, particularly legal ed, was to prohibit students from using laptops to take notes in class. Early studies showed students learned and retained information better when handwriting notes compared with typing often-verbatim notes. I had banned them from my room since spring 2009, based on a combination of those studies, a general belief that students were better prepared off handwritten notes, and a desire to create habits of engaging in a conversation while taking brief notes followed by a recording or transcript sometime later (i.e., what happens at a trial or deposition). About half the 1L faculty at FIU (7-8 people) did the same.
COVID changed a lot. Student habits of using computers became more entrenched, with students creating multi-screen, multi-device systems for online classes. Although I encouraged students to continue reading and taking notes on paper during my year+ of remote teaching, I doubt they listened.
So where do things stand on the other side (more or less) of COVID? I returned to my old system the day I returned to the classroom (Fall 2021); I heard no complaints. But an informal survey of my colleagues reveals four of us still ban; the rest allow computers, including several who previously did not. Early studies about notetaking have not been replicated in full.
What are faculty at other schools, especially those who did not allow computers pre-COVID, doing? Have student expectations changed and hardened, so they push back against bans? Do accommodations make this an impossible general policy?
Comments left open.
Update: Heard from one more colleague. He allows students to use devices for e-books and materials (which are cheaper and more available) but requires they take notes by hand, the computer reserved for reading and searching materials. I followed this approach by necessity one year in Civil Rights, when the new edition of the book was available electronically but not in print when class began in January. Students followed the no-notes rule, which was easy to enforce in a small (5 students) class; it becomes more challenging with 60+ students. Eboks made it more difficult and time-consuming for students to jump among materials (an issue in code classes). But that may be worth lowering the cost of books. Perhaps an intriguing middle ground for next year. In any event, that does mean five of us remain in the no-laptops-for-notes camp.
If the balloting for the Speaker goes on for a while, consider some strange consequences:
Can you have a State of the Union Address if the Speakership is vacant? The House must invite the President to come for the speech, but how can they do that with no Speaker?
The perennial favorite of con law professors ("The Constitution does not say that the Speaker must be a House member!") could come up when you get to, say, the fifth or tenth ballot?
Suppose some compromise candidate emerges who needs Democratic votes to get elected. How would the House then be organized? As a kind of unity government with very open rules?
Tune in this afternoon.
Posted by Gerard Magliocca on January 3, 2023 at 07:31 AM | Permalink
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Sunday, January 01, 2023
2022 Chief Justice Annual Report
From 6 p.m. Saturday (continuing the practice since 1978). The history lesson tells of District Judge Ronald N. Davies of the District of North Dakota, who received a special appointment to serve on the Eastern District of Arkansas, oversaw the Little Rock desegregation case, and faced death threats for his decisions. That leads to this year's "theme" of the importance of judicial security--"the law requires every judge to swear an oath to perform his or her work without fear or favor, but we must support judges by ensuring their safety. A judicial system cannot and should not live in fear."
Some thoughts.
• Some have criticized Roberts for not writing about the issues surrounding SCOTUS--the Dobbs (and other) leaks, the forgotten leak investigation, attempts to use Historical Society donations to peddle influence, the Thomas' political misdeeds, dissension within the Court, the race to overrule precedent, etc. I will defend the Chief on that, because any expectation or hope that he might do so was fanciful. First, these reports are generally anodyne; no Chief has ever taken on real issues in a real way. Second, this is the Report on the Federal Judiciary, not the Report on the Supreme Court; Roberts' reports center lower courts and de-center SCOTUS.
• This Report differs in a number of ways. It is short--about 3 1/4 pages in the two-column format he adopted in 2019. The history occupies the majority of the Report--almost three full pages on Judge Davies, with three or four brief paragraphs (depending on how you count) on the modern. And the modern says noting beyond thanking Congress for enacting a law to enhance judicial security and privacy (not mentioning, of course, that the privacy protections immunize the Thomas' political shenanigans) and the agencies that protect the courts. He does not mention the man arrested outside Justice Kavanaugh's house (but see above, about de-centering SCOTUS).
• Telling the story of Judge Davies and Little Rock reveals the reality of desegregation litigation and constitutional litigation more generally. Brown of its own force did not compel integration in Little Rock. It required affirmative steps from the School Board, followed by a new lawsuit and Judge Davies' new orders and injunctions to compel school officials to integrate, stop state officials from interfering with local efforts, and prohibit local officials from using "extreme public hostility" as an excuse to delay integration.
January 3rd will be no ordinary start to a new Congress. I plan to have C-Span on in the background while we take down the holiday decorations. Here's why.
The House will try (and may fail) to elect a new Speaker. Deadlocks over the Speakership lasting weeks occurred in the 19th century, but we've not seen one in many decades. The key point is that the House cannot do anything else until a Speaker is elected. Whether that takes one ballot or 100.
Once a Speaker is elected, challenges may be brought against a couple of GOP members on Section 3 grounds. One strange aspect of that process is that the challenged members have already voted for the Speaker, which you would think would make them members of the body. But it doesn't. How will the House handle these challenges? Past precedent (say in Victor Berger's case during World War I) is that the challenged member may not take his seat until the challenge is resolved. Then the typical way of dealing with the challenge is to have a House Committee investigate and report a recommendation. But instead we could see an immediate debate and vote by the full House. Do the challenged members get to vote or participate? Hmm . . . Stay tuned.
Posted by Gerard Magliocca on January 1, 2023 at 08:12 AM | Permalink
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