PrawfsBlawg

Getting to Know Peter Lederer

One of the benefits of publishing or blogging is the chance to connect with fascinating people. One of those, in my case, is Peter Lederer (pictured, left), who is an adjunct professor at the University of Miami School of Law, and one of the founding members (along with Michele DeStefano) of LawWithoutWalls.

From Peter's bio at Miami, here are the bare bones:

He served many years as a partner of Baker & McKenzie, the global law firm, having joined the firm as its 17th partner. After seven years in Zurich, where he opened the Firm’s office, he returned to New York, serving as the Senior Partner of that office until 1994. He also served for many years as a member of the Firm’s top global management bodies. For some 25 years Peter served as general counsel to the electric utility owned insurance company, Nuclear Electric Insurance Limited. He also acted as counsel for the establishment of Deloitte Touche Tohmatsu, the international accounting firm, then serving as its general counsel from 1989 to 1994.

Being the 17th partner at Baker & McKenzie ought to tell you something, but that short description belies the richness of his life journey, involving modern world history, an iconic figure in legal academia, the explosion of the global legal profession, and a mind that doesn't rest just because the body is aging.  

He introduced himself to me a couple years ago by way of a couple emails, mentioning a couple people we knew in common. The first note expressed a certain frustration with academic book pricing. In his words, "I have the temerity to ask: how does your new book wind up on Amazon with a sticker price of $118.33? With even the ephemeral Kindle version nearly $50?  I may have to spring for it.  One of the reviews suggested parallels to some of Karl Llewellyn's thinking; I was his research assistant ages ago, and that's a sure hooker." Then later asked who had turned me on to Llewellyn, as Peter "had worked for him for a couple of years when he was doing The Common Law Tradition, and that was certainly one of the shaping experiences of my life."

I did answer the question about pricing* but at some point the arithmetic dawned on me.

I replied: "Unless you are 100 years old, you must have been at Chicago in the last few years of his life?  My publication date for The Common Law Tradition is 1960, which if you graduated then would make you 19 years old than me and I am 64.  83?  If so, my hat is off to you - I aspire to keep at it in the same way."

Turns out the estimate was off by five years, because Peter was then 88, now 89, born in Austria, and fled with his parents to the US in 1938, just after the Anschluss, and a year before my grandparents (with my five year old mother and one year old aunt) left Frankfurt, Germany for the same destination.  

And we shared some experience and outlook regarding business lawyering, particularly when it crossed borders. From the oral history he co-authored with John Flood in the Fordham Law Review, Becoming a Cosmopolitan Lawyer:

The lawyer-client relationship is replete with uncertainty because of the nature of legal work, and managing that uncertainty is part of the lawyer’s skill set. In this respect, a lawyer is not just a legal technician applying knowledge to problem areas; the lawyer assumes the role of trusted advisor. This role is the hardest to describe in terms of discrete skills, as it requires not just legal proficiency, but also the traits that [Charles] Fried highlighted, such as empathy, the ability to listen, and a cultural sensitivity to others.

Part of our argument is that a cosmopolitan lawyer is also a trusted advisor and that the two are intertwined by necessity, for one cannot exist without the other. The reason for this interconnectedness is that globalization increases risk and uncertainty, which is, in part, a function of the scale of business as it grows, both domestically and internationally. The global professional service provider—accountant, consultant, lawyer—must ameliorate this risk and give succor. This role is crucial to the smooth functioning of business.

Michael Madison tells me that he has interviewed Peter for an upcoming segment of The Future Law Podcast.  Keep an ear out for it!

*The answer on pricing, I think, has a lot to do with price inelasticity for library buyers and exploiting the downward sloping demand curve to avoid deadweight loss.  In any event, you can now get the book in paperback from the publisher or on Amazon for under $50.

Further Reflections on the End of Ambition

Almost exactly three years ago, on the last day of my guest-blogging month, I posted a piece entitled The End of Ambition.  Sometimes I go back to what I wrote long ago and cringe (I was tempted to link the piece that most makes me cringe, but nah) but this one I like.  It started as a contemplation of what it's like to face the end of your career and turned into a broader assessment of what it means to grow up, to be an adult (something we've recently explored in connection with law students).

Well, here we go again, except now I'm 1000000 (Aside #1: as my friend Raffael Cavallaro said, "there are 10 kinds of people in the world, those who understand binary and those who don't") and looking pretty good for 1000000. (Aside #2: if horses ruled the world, "digital" really would mean "binary".)  But when you hit 1000001, you hit the normal age for filing for Social Security, and at 10000110 you have maxed out on the value of deferring your benefits.  (For those of you who have many years yet before this becomes an issue, it involves the uncomfortable evaluation of how long past 10000110 you and/or your surviving partner think you will make it.  The longer the period, the more sense it makes to defer.)

What prompted the re-reflection is being on this blog extensively at the same time the "submission angsting" and "hiring committee" posts have gone up, and my recent pontifications (sparked by Kaci Bishop's article) on fear and failure.  What I want to do here, from the perspective of one who has achieve the ripe old age of 10 to the 110th power, is link fear and failure to ambition.  My thesis here is that there is a continuum of ambition from the macro to the micro, and our brains don't do a great job of making that clear, hence causing our nervous system to spit out fear of failure juice in many of the wrong places. 

Here are prototypes of macro ambition:  getting hired as a tenure-track law professor or being awarded tenure.  Placing law review articles have a lot to do with both (so it seems).  I do very much understand macro-ambition.  My school and professional lives were a continuous series of them - grades, class standing, university admissions, law school admissions, getting a law firm job, making partner, getting the in-house job, becoming the GC.  I've said this before - when you attempt to break into academia and then climb the tenure ladder as a superannuated newbie, the actual consequence of failure is, I think, less significant in one's life than if you start out young.  I think there is also a lower fear factor - and thus more willingness to swing for the fences. (By the way, it's been around for well over a decade now, but you can find that particular story in Memo to Lawyers: How Not to "Retire and Teach".)

Here is my prototype of the micro-est of micro ambitions. When you get to be 1000000 and you worry about the increasing number of senior moments, you do things to assure yourself that you aren't losing it.  One of mine is doing the New York Times crossword puzzle every day.  Monday and Tuesday are too easy, so I do them online and see how fast I can complete them.  Wednesday through Sunday merit printing them.  I do them in ink and my goal is not to make a mistake.  I can annoy my wife no end by finishing the Saturday or Sunday puzzle perfectly and then proudly displaying it as though it is actually some kind of meaningful accomplishment. 

Now some people never stop having and acting upon macro-ambitions. Joe Biden is thinking about running for President, I'm pretty sure.  I am in the process of coming to terms with the end of mine. (Trust me, I had them and could tell you stories.) What I'm thinking now is that there isn't really an end of ambition.  It's just that most of the macros get taken over by the micros. Not going to be a CEO. Not going to be a university president. Not even going to be a lateral hire. It's now a bucket list.  Yeah, it would be cool to place an article in the Yale Law Journal.  It won't make a helluva big difference to anything, but it would be another thing to check off, somewhere between doing the Saturday puzzle completely correct in ink and being President.

The thing is the fear. I've already admitted publicly that I have the typical type-A failure dreams.  I'm not sure which is the chicken and which is the egg - ambitious goals or fear of failure - or if maybe they are the same thing.  But it has made me think about Woody Allen's observation on this in Annie Hall:  "You know, a guy walks into a psychiatrist's office and says, hey doc, my brother's crazy! He thinks he's a chicken.  Then the doc says, why don't you turn him in?  Then the guy says, I would but I need the eggs."

Woody was talking about relationships, but I'm talking about fear of failure. I still get slightly (not pathologically) annoyed at myself for screwing up the crossword. If you lose the fear, do you also lose the ability to achieve whatever it is you want to achieve?

UPDATE:  I corrected my age from the original posting (h/t Dean Andy Perlman).  I am 1000000, not 100000.   When you get to 1000000, it's hard to see all those zeroes.  Another damn failure!  There goes the brain again, releasing those fear of failure juices.

Now (or soon to be) in Paperback: Beyond Legal Reasoning: A Critique of Pure Lawyering

A brief pause for a semi-commercial announcement.  Actually, if we consider the royalties to which I am entitled from Routledge after deducting the cost of a professional indexer, there's very little commercial about it from my standpoint.

Beyond Legal Reasoning: A Critique of Pure Lawyering first takes a granular look at "thinking like a lawyer" - its logic and theory-making - and then at the perils of succumbing to it when one is not in the traditional "lawyer as warrior" mode.  My original title, Unlearning How to Think Like A Lawyer, still lingers in various descriptions.

Apparently the law library market is price inelastic and the publisher waits eighteen months before putting out a paperback edition.  That is now available for pre-order (release date: Aug. 24) at a fraction of the hard cover price.

But ... most of us write to be read, not for the several hundred dollars of royalties that an academic book generates for the author (translating into cents per hour for the time creating it).  If you are interested in a free taste, the preface is available on SSRN.   Or the entire book is available for free at any of these fine libraries.

Or, after the break, you can watch the presentation from last April at the Harvard Law School's Center for the Legal Profession:

Coase and Fireworks

In my continuing effort to demonstrate what the mundane world looks like through the eyes of a nerdy law professor, today we will talk about Ronald Coase, recipient of the Nobel Prize in economics, and fireworks.

Before we had dogs, I liked fireworks, at least the professionally staged kind.  Up here in Charlevoix, Michigan, every year in late July the town has a week-long event called Venetian Festival.  The highlight on Friday night is a spectacular fireworks show out over the lake for which our deck is effectively a front row seat.  For the last seventeen years or so, however, I have not been out on the deck nor have I seen the fireworks.  No, I am back in a closet with the door closed, comforting our dog(s) who is/are going batshit crazy.

With the professionally staged fireworks, at least I know when to go into the closet and when I can come out.  It's the private ones that really drive me crazy.  In Massachusetts, where we live nine months of the year, I don't have worry.  Private fireworks are illegal, end of story.  

Here in Michigan, however, we have to deal with one aspect of the state legislature's Year of Living Stupidly.  In 2011, the same year it passed the law eliminating the requirement that motorcyclists wear helmets, Michigan first permitted the sale of fireworks in the state.  In 2013, it amended the law to permit local units of government to ban the use of consumer fireworks, but not on national holidays, the day before or the day after a national holiday.  (It also allows any city in the state with a population greater than 750,000 - there is only one - to ban them between midnight and 8 a.m. on such holidays, and only between 1 a.m. and 8 a.m. on New Year's Day.)

The reasons for my sitting on the beach and, like a complete dork, reading Ronald Coase's The Problem of Social Cost follow the break. If he had the house next door, and had the same issues I do, what might he say about it?

Our local unit of government, the City of Charlevoix, and the surrounding Charlevoix Township each enacted ordinances banning the private use of consumer fireworks to the extent permitted by the Michigan statute.  Thus, for three of the days we are here during the summer (July 3-5), we have to deal with the possibility that some *)&(*^*^&$ is going to be responsible for random and unexpected fireworks activity that turns our dogs' brains into petroleum jelly and causes them to (a) howl madly, and (b) scurry around the house wildly under beds, couches, and other areas of perceived safety.  

The rest of the summer we can be fairly sure that our nearby neighbors won't be using consumer fireworks because of the local ordinance.  If they did out of a misunderstanding of the law, and they were to ignore our friendly suggestion that they obey the law, we would be within our rights to call out Charlevoix's Finest.

Here's the problem.  If you happened by my earlier discussion of riparian rights, you saw this Google Earth picture. It so happens that I took the above picture just about at the tip of the red arrow.  The city proper is largely to the left (west) of the tip of the arrow.  The township pretty much ends at the other end of the arrow.  Every thing else to the right, including that peninsula (known as Pine Point) that looks sort of like India, is in Hayes Township.  Hayes Township has never passed an ordinance banning fireworks.  So just after it gets dark, for much of the summer, we are treated to a fireworks display that carries very nicely, sound and otherwise, across the mile or so to our house.

Where our dogs, having dog-like senses of hearing and smell, proceed to have their brains turned into petroleum jelly and thereupon to (a) howl madly, and (b) scurry around the house wildly under beds, couches, and other areas of perceived safety.

Now, I know that the reason for all of this fireworks activity under the current legal regime is the result not of, as Coase might hypothesize, a railroad needing to run a railroad even if sparks cause crops to catch fire, or industries needing to burn fuel even if it causes air pollution nearby.  It is the product of market activity in which the total value of production exceeds the cost of such production, and consumer activity in which the utility engendered by playing with toys that make loud booms and bright flashes exceeds the cost of such activity, at least for those engaged in it.

The social cost occurs across the lake at my house, where I am contemplating the purchase of doggy Xanax.

The popular takeaway - the "Coase Theorem" - applied to my situation is this.  In a world of zero transaction costs, the total net social welfare of setting off fireworks, on one hand, and my distress in dealing with the dogs does not depend upon the initial allocation of rights.  Assuming that we valued noise and peace in the appropriate ranges, either the celebrants would pay me for the right to have the rockets' red glare or I would pay them to cease and desist. 

It works like this. Let's assume that the pricing system works costlessly and the only actors are A across the lake who wants to use fireworks and me.  The cost to me of insulating my house against fireworks noise is $100.  If the default rule is that the fireworks can't be used without my consent, and the value to A of his (and it's always a "he") activity is more than $100, then A ought to be willing to pay me up to $100 to shoot off fireworks (the cap being $100 because for that amount he can pay for the insulation of my house).  If there is no regulation against fireworks, and I value silence at more than $100, I ought to be willing to pay A up to $100 to have him stop.  In short, with a smooth and costless pricing system, you get the same result regardless of the initial legal entitlement. But, of course, the idealized world of zero transaction costs doesn't exist, and so even if the world only consisted of A and me, and the transaction costs of paying off A creates a total cost to me that exceeds the value of silence, I won't do it, even if without transaction costs it would have been the more efficient result.  And it's not just A and me.  It's many of the good citizens of Hayes Township and many of the good citizens of Charlevoix.

Is there a market solution to my problem?!!?  It turns out that Coase didn't articulate a theorem (or at least that wasn't his object in the article).  There were no helpful hints on how to articulate a default rule so as to minimize transaction costs with the aim of an optimal allocation of resources.  In fact, he never used the word "theorem" or the term "transaction costs."

I recommend Pierre Schlag's critique of the morphing of what Coase said in Social Cost into neo-classical law and economics.  At the beach the other day, I confirmed Pierre's statement that you can get the entire basis for what others now call the Coase Theorem by page 8 of Coase's original 1960 article and skip the remaining 36 pages (actually there's a piece of it at pages 15-16 as well).  Pierre's critique is not of Coase's article. His point was that the popular takeaways - mainly Chicago Law and Economics - have transformed Coase's point into something else entirely. It wasn't Coase who developed the L&E focus on using neo-classical economics to justify legal rules, or to focus on the reduction of transaction costs in pursuit of an idealized efficient solution.  Moreover, in a different piece, Pierre observed that the L&E approach to transaction costs itself is neither theoretically intelligible nor operationally applicable.

To the contrary, according to Schlag (and, by my reading of Coase, he is right), Coase had a far different goal in Social Cost. Coase wanted neo-classical economics to take account of the real world, in particular the effect of law and legal institutions on resource allocation.  Coase's main object was to criticize the prevailing acceptance among neo-classical economists of the idea of Pigouvian taxes.  He wanted to demonstrate the problem with Pigou's approach to externalities - namely, to impose taxes or bounties to the extent that the social cost of an activity exceeded the private cost to the actor.  

Coase was skeptical of Pigou's entire approach.  The bounties or taxes were likely to be overbroad.  Indeed, the focus on making an actor's private costs equal to the total social cost of the activity was misplaced.  In the foregoing example, suppose the social cost of fireworks noise is $200 to me.  Coase criticized the knee-jerk remedy merely of taxing the activity in the amount of $200, because it is possible, in an appropriately free market, that it would only cost $100 to achieve an optimal allocation of resources. In short, the appropriate way to judge externalities (Coase didn't use that term either) was to assess the total effect on social costs both for the actors and those affected by the actors and not simply to add costs to deter the unwanted activity.

But, wait. If the market is not going to work, am I out of luck?  I don't think so.

If Professor Coase lived next door and I were to walk over there and find him, like me, huddled in a closet with his batshit crazy dogs, I don't think, based at least on what he said in The Problem of Social Cost, that he'd rule out the idea of having government rather than the market decide how resources are to be allocated. Firms get organized when there are opportunities for value-enhancing transactions, but only under a scheme where less expensive intra-firm administrative costs substitute for higher costs of market transactions. And then there is the case of something like fireworks noise, "which may affect a vast number of people engaged in a wide variety of activities" and so "the administrative costs might well be so high as to make any attempt to deal with the problem within the confines of a single firm impossible.  An alternative solution is direct Government regulation."  Here, Coase observed that "[t]he government is, in a sense, a super-firm (but of a very special kind) since it is able to influence the use of factors of production by administrative decision."  Coase pointed out that the "government is able, if it wishes, to avoid the market altogether, which a firm can never do."

That is an interesting point up here along the lake. Yes, government regulation can be overbroad and inefficient. 

But equally there is no reason why, on occasion, such governmental administrative regulation should not lead to an improvement in economic efficiency. This would seem particularly likely when, as is normally the case with the smoke nuisance, a large number of people are involved and in which therefore the costs of handling the problem through the market or the firm may be high.

But you have to get down to cases and not deal in abstractions. Coase thought economists and policy-makers over-estimate the advantages of government regulation, but all that does is suggest that government regulation should be curtailed. "It does not tell us where the boundary line should be drawn. This, it seems to me, has to come from a detailed investigation of the actual results of handling the problem in different ways."  The problem even with local government regulation is that it doesn't fully account for all of the social costs, because the board of supervisors in Hayes Township has not enacted the same ordinances as Charlevoix and Charlevoix Township, and parts of Hayes Township are closer to my living room than parts of my own city.

So, here I am, 1,778 words into this blog post, and discovering that, if Ronald Coase were my neighbor, I might well get him to join me in an effort to get the county or maybe the state government to understand there is a social cost to fireworks.  Not everything needs to be dealt with in terms of markets.

In this article, the analysis has been confined, as is usual in this part of economics, to comparisons of the value of production, as measured by the market. But it is, of course, desirable that the choice between different social arrangements for the solution of economic problems should be carried out in broader terms than this and that the total effect of these arrangements in all spheres of life should be taken into account. As Frank H. Knight has so often emphasized, problems of welfare economics must ultimately dissolve into a study of aesthetics and morals.

I suspect he'd agreed with me that, for fireworks, as elsewhere, "[in] devising and choosing between social arrangements we should have regard for the total effect." We could gather up the dogs and all those suffering from PTSD and march on township hall to tell them just that.

Or maybe he would tell me that I had over-thought the issue and suggest reading more appropriate for the beach.

Three Neutral Principles for Civil Political Discourse

As the recent election illustrated, Americans disagree foundationally on many substantive issues. I’d like to think though that while there may be profound divisions on core political values, one thing we may be able to agree on is that it would be helpful to our democracy to improve our public discourse about these matters.

But what does it mean to have a truly democratic, and perhaps even productive, public discourse? This aim may seem like a lost cause after over a year of toxic mudslinging, disingenuous character assassination, and an increasing unwillingness to tolerate opposing viewpoints—all of which were amply in evidence from supporters on both sides of the aisle.

I was given some sense of hope on this issue, though, during an incident shortly before the election in which President Obama was interrupted by a Trump-supporting protester during Obama’s speech at a political rally. The crowd immediately began to boo in order to shout down the protester, but Obama pushed back in his defense, and his reasons for doing so, I’ll argue below, may be taken as three core, nonpartisan principles that we may all be able to agree on as baselines for engaging in civil political discourse.

I enumerate these three principles after the break.

“First of all, we live in a country that respects free speech.” That platitude is obvious. But what Obama said before this was more meaningful. His lead-in to this statement was: “You’ve got an older gentleman supporting his candidate. He’s not doing nothing. You don’t have to worry about him.”

“He’s not doing nothing.” The idea that others’ political expression does not harm us should be obvious too (it’s really just a version of the old schoolyard rhyme about sticks and stones not breaking bones), but in modern America, it’s not. Expressing a point of view that others disagree with is increasingly more likely to get you shouted down than heard out. It might even get you suspended on a liberal college campus or beat up at a conservative political rally.

The empirical point behind the informally phrased “He’s not doing nothing” is that the expression of others’ viewpoints are nothing more than what they are: Descriptive claims about another person’s state of mind. Another person’s claim about their own beliefs does not make those beliefs true, and it certainly does not compel us to agree with or even respond to it, or do us any harm.

This attitude is easier to describe than to adopt. Hearing someone express an opinion that you consider wrong or even profoundly harmful can be infuriating, as the level of public discourse in this past election season illustrates. But this is why adopting the “he’s not doing nothing” perspective is so important. The notion that others’ political opinions are nothing more than data indicating their viewpoint (rather than traumatizing or treasonous) not only facilitates core constitutional speech rights, it also enables a psychological freedom from others' expression that makes us free to form our own opinions as well.

Because like it or not, we're a nation that is committed to honoring free speech. This principle means something only if it requires tolerating respectfully even speech with which we profoundly disagree. And that toleration becomes much easier when we regard such speech as nothing more than information about someone else’s state of mind, rather than a threat or a harm being inflicted on us.

“Second of all, it looks like maybe he might have served in our military and we got to respect that. Third of all, he was elderly and we got to respect our elders.” These next two points can be collapsed into one very simple principle: See others generously, including and even especially those with whom you disagree. When this Trump supporter popped up at the rally the other week, the attendees may well have dismissed him as a threatening, unstable crank bent on shouting down the President, possibly even for racist reasons—hence their desire to shout him down in turn.

But these kind of uncharitable assumptions are as baseless as they are unhelpful. Maybe the protester lost his job to outsourcing and was trying to express support for protectionist trade policies that he felt were critical to having a job and being able to support his family. Maybe he was unhappy with the direction of the country under a Democratic administration and expressing his passionate support for going in a different direction.

Seeing the protester in a generous light—an elderly man with possible military service—is a key step in having a decent conversation. Stereotyping political opponents makes them easy to demonize and dismiss them without engaging. Regarding a Trump supporter as a fanatic foaming at the mouth with irrational race-hate makes it easy to conclude that he does not merit respect or deserve to be heard out. But seeing that same person as an older gentleman who fought in Vietnam and cares deeply about the fate of the country yields a different result.

Much the same is true in reverse. An effete urbanite reflexively supporting Obama and Hillary out of a sense of liberal guilt amounts renders the speaker a mere stereotype that can be categorized and ignored with ease. But if you regard the same person as someone who is partaking in a tradition of dissent that dates to the Revolution in the interest of protecting values like racial and social justice that are embedded in our Constitution you’re more likely to take them and their ideas more seriously.

Regardless of political valence, the choice to see someone in a more generous light is thus a prerequisite for having the kind of decent discussion about issues that has a better chance of producing mutual understanding rather than descending into a pointless shouting match.

“Fourth of all, don’t boo. Vote.” At first glance, this one may appear a bit more complicated. “Don’t boo”? Isn’t cheering and booing what people do at rallies? It certainly is, and I don’t think the point is that people should sit quietly and clap only on cue when they are attending these kinds of events. Rather, I think the general idea expressed by this statement goes something like this: If you hear an opinion you disagree with, it’s better to create a positive dialogue that expresses your own point of view rather than spending your efforts attacking the speaker or trying to eliminate their speech from the public sphere.

Because while I said above (and still believe) that others’ opinions need not lead us to want to shut them out or shout them down, democracy also cannot function if people do nothing more than engage in calm observation when they hear ideas they think are wrong or dangerous. The problem is that increasingly the immediate reaction to opposing viewpoints is to personally direct animus or worse toward the speaker. The suggestion of “don’t boo, vote” is that there are more and less effective responses to speech you disagree with. Silencing speech tends to be ineffective and harmful. By contrast, using one’s disagreement as a call to democratic engagement in the interest of your own beliefs, whether that action is the simple act of voting or a deeper commitment to a movement or cause, is the more productive alternative.

Let me be clear about the limits of my claim: I have no idea if Obama was intentionally trying to propound core principles for engaging in civil political discourse in his brief interaction with the protester at the rally, but regardless I think at least a few of those principles (first, you are not harmed by others’ speech; second, see others in a generous light; third, add your voice rather than squelching others’) are immanent in his response.

Finally, I should emphasize that while I think these are constructive principles for civil political discourse, this does not mean they are easy to practice. On the contrary, we’re hardwired to do pretty much the opposite in all of these instances. Hearing opposing viewpoints tends to engage the fight-or-flight response, which helps explain both the rancor of this election and the growing polarization of our nation as people increasingly surround themselves with other like-minded people to avoid the discomfort of regularly facing disagreement.

But nothing truly valuable is easy. And restraining our immediate instincts—tolerating speech we dislike, accepting a President we didn’t vote for—is in many respects what defines democracy, and distinguishes it from its many inferior alternatives. It is this kind of restraint in the interest of the greater good of our country and the maintenance of our system of government that represents the “better angels of our nature” that Lincoln described in his first inaugural address, and that I hope may still prevail even after a dispiritingly ugly election season.

The Divided States of America

The election map from last night and the depth of devastation and fear expressed by many people today shows clearly the disparity in opinion that exists in this country with respect to some key and emotionally charged issues.  This presidential election provided empirical evidence of how divided we remain as a nation.  We are divided urban and rural, rich and poor, black and white, native-born and immigrant, and even male and female.  Both Trump and Clinton have given speeches in the last 12 hours that recognize this deep divide and both have asked their followers to assist in bridging it.  In Trump's speech, he stated, "Now it’s time for America to bind the wounds of division; have to get together. To all Republicans and Democrats and independents across this nation, I say it is time for us to come together as one united people."  These are noble sentiments, and I hope that he is truly committed to "binding the wounds of division."  In Clinton's speech, she similarly told her distraught supporters, "We have seen that our nation is more deeply divided than we thought. But I still believe in America, and I always will. And if you do, then we must accept this result and then look to the future. Donald Trump is going to be our president. We owe him an open mind and the chance to lead."  Of course, Clinton did not say that accepting the election result and giving Trump a chance to lead means falling in line with particular policies. She urged people to "never stop believing that fighting for what's right is worth it."

It is high time that we as a nation take a long, hard look at our deep wounds of division and chart a path to healing them. The first step is honestly recognizing the fact we are very, very divided. For every person who thinks "X" on a particular issue, there is another who thinks "not X."  Fortunately, we are blessed with an inspired and inspiring Constitution that can preserve liberty and civil rights and establishes a framework for a balanced and checked government. It is abundantly clear why these checks and balances are so important, and it is imperative that we, as professors, lawyers, and citizens, work our hardest to preserve these systemic protections.  But we must do even more than that.  Lawyers are fundamentally society's problem solvers.  And we have a problem of disunity.  We each need to figure out a way that we can help the people of the United States live and work and function together as a nation in a mutually respectful way. Perhaps that means a return of more decision-making authority to individual states, as was initially intended by our Founding Fathers. Perhaps that means shoring up the division of powers among the branches of the federal government. It also means working to dismantle structures that create and perpetuate societal divisions in the many contexts in which these occur.  Because I write on Fair Housing,  making real strides to integrate neighborhoods is something that immediately leaps to my mind, but there are similar inequities and divisions in all areas of the law and our society.  Like Clinton, I believe that "we are stronger together." And like Trump, I too want "a better, brighter future" for myself, my family, and my country.  Therefore, we have to unite these Divided States.

It is time to do some soul searching and consider how we really can come together and make America not only "great" but unified, effective, respectful, and worthy of respect.  Let's take a deep breath, roll up our collective sleeves, and get to work.

Mickey Mouse for President? The Law of Write-In Voting

Many voters this year have expressed dissatisfaction with both major party candidates. My own politically precocious 12-year-old has grilled me about the viability of several third-party candidates (to which questions I replied with Socratic questions of my own until he gave up and did his own research that, incidentally, led to an article in his school paper giving a thumbnail sketch on Clinton, Trump, Johnson, Stein, and McMullin).  But even he did not profile the ubiquitous write-in protest vote (for a voter's favorite defeated primary candidate or a voter's mother or, as in one case, a voter's deceased dog).  Apparently, a few poll workers in Kansas were instructed to tell voters that "write-in votes don't count," but the actual rule varies by state.  It is worth considering the applicable rule before you write in anyone, however, because it very well may be that writing in a random name is, literally, throwing away your vote (meaning, it is actually thrown out).  There is a lot of misinformation about this out there, so I did a little bit of research this morning and here's what I came up with (this from a non-election law expert, so please be gentle).

States can (and many do) prohibit or limit a voter's ability to write in a candidate on the ballot. Kansas, for example, is one of the states that seems to limit one's ability to vote, restricting your choices to (a) the enumerated candidates or (b) those write-in candidates that have filed with the KS secretary of state an "affidavit of write-in candidacy for the offices of president and vice-president" before "12:00 noon on the 2nd Monday preceding the general election for those offices." For this election, that means that in order for a vote for a particular write-in candidate to be considered (and count) in Kansas, that write-in candidate must have filed this affidavit before October 24th. Kan. Stat. Ann. § 25-305 (West). This statute has been tested and upheld by the 10th circuit on the basis of a state's interest in voter education (Hagelin for President Comm. of Kansas v. Graves, 25 F.3d 956, 960 (10th Cir. 1994)). 

Limits on a voter's ability to write-in a candidate may seem unconstitutional to you (and to me), but it has been upheld by the Supreme Court (Burdick v. Takushi, 504 U.S. 428, 441 (1992)). The Supreme Court case upheld Hawai'i's ban on write-ins. Oklahoma's complete ban on write-in votes for presidential and vice-presidential elections was deemed constitutional in Coalition for Free and Open Elections, Prohibition Party v. McElderry, 48 F.3d 493 (10th Cir. 1995). The Supreme Court denied certiorari in that case. Other states have now and in the past completely banned write-ins as well, but the more common approach seems to be to require registration or to state that ballots that are not printed legibly won't be counted (well, duh!).

In Kansas, voters are not completely barred from writing in candidates in a presidential election, but only votes for registered candidates will count. (FYI, Kansans are also barred from writing in to indicate affiliation with a non-enumerated party in their voter registration. This rule was upheld by a federal court in 2011 and affirmed by the 10th circuit. Constitution Party of Kansas v. Biggs, 813 F. Supp. 2d 1274, 1276 (D. Kan. 2011), aff'd sub nom. Constitution Party of Kansas v. Kobach, 695 F.3d 1140 (10th Cir. 2012)).  

People are often confused about write-in rules, particularly since states apparently change them periodically and since they vary widely among jurisdictions. It doesn't help when poll workers are told that "write-ins are illegal," which of course they are not (what, are you going to be fined because you write a candidate in? I can't believe that ever would be the case!).   

All this raises a good question that a friend of mine articulated - Why on earth would anyone write in an unregistered candidate at all? Someone who hasn't announced he or she is running for President and who likely will get all of ONE vote (yours)? Well, in cases that have considered the question of legality of write-in bans from the point of view of the voter, rather than the candidate, the right to write-in is equated, once again, to a type of free speech.  The idea is, of course, that a vote for "Mickey Mouse" is a protest vote, a "none-of-the-above" vote, and that casting this sort of vote should have some sort of speech-related impact, something beyond staying home on Election Day.  This sort of speech could only have any actual effect if write-in protest votes were to be aggregated, tabulated, and announced.  If 10% of voters wrote in some random protest name at the polls, say, perhaps that fact in itself could be newsworthy and suggest a high level of dissatisfaction with the process and candidates.  If you have a write-in ban or limitation to registered (or real, live) people, however, then you lose the ability to be part of this sort of collaborative, grassroots protest voting speech.

Thus, even though I really, really want to write in Lin Manuel Miranda for President (because how awesome would that be!?), I guess I will have to restrain myself tomorrow. 

Happy Voting, everyone!

 

But first, let me take a ballot selfie!

Social Media has been playing a huge (or is that “yuuuge”?) role in Election 2016: Twitter attacks, Facebook op-eds, youtube campaign videos, and now, Instagram and Snapchat ballot selfies. And although both candidates and constituents have and continue to use social media to express themselves, state law in nearly half of the country criminalizes this last type of “Freedom of Speech” – namely, taking a photograph of your completed ballot and posting it online.

Purported Risk of "Vote Buying" Schemes

Prevention of vote buying is the cited rationale behind ballot selfie bans. The concept being that exhibiting a photograph of a completed ballot would be the only method to cash-in on an offer to sell one's vote.   I don't find this reasoning very compelling. It seems that if someone really wanted to take a photograph of a completed ballot for a secret reason such as an illegal vote-buying transaction, it would be ridiculously easy to do so, even with the “no photographing” rule on the books. Cameras aren’t the awkward and obvious contraptions that they were in prior generations. Cameras today can be part of your phone, your watch, and, who knows, maybe even disguised as a flash drive or pen (the possibilities are limitless).  Furthermore, if the vote being bought was cast as a mail-in ballot, as are absentee votes and basically all voting in the Pacific Northwest, then ballot selfies are even easier to do. The one thing that you would probably not do - if you were taking a photograph simply in order to cash in on an illegal vote-buying scheme - would be to post that incriminating evidence on social media.

Freedom of Speech (er... Freedom to Snap & Post)

Even if there is a remote possibility that such photographs could be part of nefarious vote-purchasing schemes, ballot selfie bans also raise serious free-speech issues, and upon examination, federal courts in two jurisdictions have already declared such bans unconstitutional. An Indiana law that banned ballot selfies was struck down last year when Federal Judge Sarah Evans Barker of the state's Southern District found that the law could not survive strict scrutiny because the state "entirely failed to identify any such problem in Indiana relating to or evidencing vote buying, voter fraud, voter coercion, involuntary ballot disclosures, or an existing threat to the integrity of the electoral process" (Indiana Civil Liberties Union v. Indiana Sec'y of State, 2015 WL 12030168).  On September 28, 2016, the 1st Circuit ruled that a similar ban in New Hampshire also impermissibly impinged on freedom of speech. The 1^st Circuit went so far as to call ballot selfie bans “antithetical to democratic values.” (Rideout v. Gardner, 2016 WL 5403593).

On Friday (October 28, 2016), the 6^th Circuit bucked the trend by reversing the district court-issued injunction that prevented the enforcement of Michigan’s ballot selfie ban with respect to the coming election. (Crookston v. Johnson, 2016 WL 6311623.) Judge Jeffrey Sutton, writing for a divided court, held that although the “interesting First Amendment issues” would eventually be adjudicated, for the purposes of November 8^th, the Michigan ban on ballot selfies would stand.  The Michigan ballot selfie ban operates to disqualify a ballot that has been photographed. The plaintiff in this case, Joel Crookston, actually had his vote invalidated in 2012 after he snapped and posted a photo of his completed ballot. The majority of the 6^th Circuit seemed insufficiently concerned that Crookston’s free speech would be impermissibly curtailed in the coming week by virtue of a ballot selfie ban. “A picture may be worth a thousand words,” wrote the court, “but social media users can (and do) post thousands of words about whom they vote for and why.” Although admitting that “lingering issues remain” with respect to the First Amendment effects of the selfie ban, the 6^th Circuit concluded that “there will be time for due deliberation” after the election. 

Chief Judge Cole dissented, holding that because the penalty for taking and posting a ballot selfie was nullification of the vote, the majority had effectively caused voters to choose “between their freedom of expression and their right to vote.” Cole explained that restrictions on speech must serve a significant government interest and be narrowly tailored, and the Michigan ballot selfie ban fails to meet either requirement. Judge Cole was not convinced by the three alleged “important government interests,” namely (1) discouraging vote-buying and coercion,” (2) ensuring “that the polling place is a sanctuary for all,” and (3) preventing delays. “While all of these may be government interests in the abstract, there is disproportionality between the interests stated and the ballot selfie prohibition created by these laws and instructions,” wrote Judge Cole. Yesterday (October 31, 2016), citing the dissent, Crookston’s attorney filed an emergency motion for rehearing in the hopes that the issue can, in fact be definitively addressed prior to the election.

Ballot Selfie Bans - A Constitutional Open Question

The law regarding ballot selfie bans is inconsistent and in flux. On October 23, the Associated Press reported on the state of the law, state-by-state, but this listing is already outdated because of the recent Michigan ruling.  A brief glimpse at the AP's 50-state survey shows how widely varying state laws on this issue. Some states (like Hawaii, Utah, and Nebraska) have laws specifically protecting a voter’s right to take a ballot selfie. Many states neither prohibit nor explicitly allow photographs of ballots. Some states have recently repealed laws that prohibited ballot selfies (for example, California – although this change will not take effect until January), and similar legislative measures are pending in other jurisdictions (for example, New Jersey).  A few states allow photographs of mail-in ballots, but do not allow photographs at polling places in general (for example, Iowa, Maryland, Texas, and Tennessee).  

At least 18 states, however, explicitly outlaw the practice of photographing and showing one’s own ballot, whether at the polling place or (for a mail-in ballot) at home. Although a few state spokesmen (Alaka, Massachusetts) have stated that a state law ban on ballot selfies could not be practically enforced, other states lay out clear penalties for violation of the rule. In Michigan, a ballot selfie will lead to invalidation of the ballot. In several states, a ballot selfie is a misdemeanor that could carry a fine. In Illinois, knowingly showing your completed ballot to another person is a felony that carries a prison sentence of one to three years.

Infographic from NBC News:

 

 

It will be interesting to see if a national consensus develops over the next several months as the ACLU, Snapchat, and various individuals continue to challenge these laws. The next expected opinion pertains to the New York law, and Judge Castel (S.D.N.Y.) says he’ll issue his opinion by the end of this week.  

Meanwhile, the ACLU just sued in Northern California seeking a restraining order that would prohibit enforcement of the selfie ban law, even though a bill repealing that ban has already been signed into law.   The ACLU points out, however, that the new law’s effective date in early 2017 comes too late to matter for Election 2016. “This is an incredibly contentious election. Thousands of our members want to engage in this core political speech, and not just show people how they are voting but try to encourage others to vote the same way," Michael Risher, an attorney with the ACLU of Northern California, said in a statement. "On November 9, it will be too late for them to do that.” Risher called ballot selfies "core political speech at the heart of the First Amendment," however the sought-after injunction seems more symbolic than pragmatic.  “In its 125-year history, California's ban on sharing one's marked ballot has not been enforced.” The California hearing is set for November 2^nd.  On that same date a thousand miles to the east, another federal judge will hear near-identical arguments in a federal case challenging the Colorado ballot selfie ban.   

Outdated or Necessary Protections?

Are ballot photograph bans anachronisms? Or is do these laws serve a valid purpose? Colorado Deputy Secretary of State Suzanne Staiert argues that selfie bans are still needed. “We believe the current law protects the integrity of the election and protects voters from intimidation or inducement,” said Staiert. “In fact, given Colorado’s unique election system and rise of social networking, the prohibition may be more important in Colorado than in other states and may be more timely today than ever.” 

Another argument against repealing the bans is that prohibitions on ballot selfies do not really stifle free speech in any substantive way. The lawyer representing New Hampshire in the 1^st Circuit case argued that that under that state’s law (pre-invalidation), “You're free to go out into the community and scream at the top of your lungs how you voted and who you support in the election. You just can't use your marked ballot to do so."  

I suppose that those who are concerned with the practice of taking and posting ballot selfies worry about the social pressure involved and are concerned that the expectation of proving your vote publicly can create peer pressure to vote a particular way.  If ballot selfies become socially expected, it could remove the protection from retribution (social as well as political) that complete anonymity offers. For Snapchat-happy millenials, the social pressure to post a ballot might make it difficult to vote one’s conscience rather than what is most acceptable in one’s social circle. I’m not too worried about vote buying being enabled by photos of ballots posted on social media, but perhaps there are other legitimate reasons to step back from free speech in the name of protecting the right to anonymously cast one’s vote.

Black and Blue in Baltimore

Was it worth it? A judge, after a bench trial, just acquitted the third and highest ranking of the Baltimore police officers charged with killing Freddie Gray. So far there have been no convictions. Should the Baltimore District Attorney prosecute the others? More generally, is there a duty to prosecute public officials, even if there is only a remote chance of success on the merits?

I think the work of Antony Duff might prove helpful here. He believes wrongdoers are a specific category of people identified by a duty that they are under: to answer to those they have wronged for their unjustified and harmful act. The duty to answer is, so Duff thinks, a feature of responsibility: wronging someone puts the wrongdoer in a relationship with their victim. The victim has the duty (not just the right, but—Duff believes—the duty) to call the wrongdoer to account; and the wrongdoer owes the victim a response: the wrongdoer has a duty to account for her wrongdoing by giving reasons to justify, excuse, or accept the blame for her wrongdoing, and then take action to expiate her wrong. Owing a response places the onus on the wrongdoer to come forward with her account; morally, she cannot just stand pat and hope no-one notices the wrong, or her responsibility for it.

Duff draws a line between ordinary moral wrongs and extraordinary criminal wrongs. What makes criminal wrongs so extraordinary, he thinks, is that they are wrongs that the public ought to take an interest in. Failing to buy a beer when it is your round is a wrong, but unless I’m one of the folks you are drinking beer with, it’s none of my business that you are stingy and selfish. Engaging in an act of domestic violence is a wrong, but even though it may occur in a private place, it is a wrong that affects the community as a whole, and which the public has an interest in seeing prosecuted. Moreover, the community enacts criminal laws to express the fact that it is the public’s business. People whose wrongs affect the community are not just ordinary wrongdoers; they are criminal offenders and have a duty to come forward to answer the community, to whom they are accountable, in a public forum, such as a trial.

Duff’s special significance as a theorist of punishment and criminal responsibility is (as Malcolm Thorburn points out) in identifying the trial (rather than the punishment) as the focal point of the criminal justice system. The trial is centerpiece of the accountability because it is a communicative forum. It is there, in public, that the offender answers to the community and (if the law provides) suffers public censure. Responsibility for wrongdoing demands (for Duff) that the offender answer to someone; responsibility for criminal activity requires an offender answer to the public through the trial process. The result of the trial (conviction or acquittal) is secondary to calling the offender to account.

Duff’s view suggests that whenever the community plausibly suspects that someone is a wrongdoer, then both the community and the wrongdoer have a positive duty discuss it: to demand and provide a rational accounting of the wrong. Where the wrong is one that touches the community as a whole, then the proper forum for such an accounting is the criminal trial.

Duff’s argument about communities and the criminal law is quite compelling. At the very least, it provides an important moral basis for criminal law: that it is the moral law of the public, the community; not just a set of wrongs that the politicians decide to sanction with an especially harsh or significant punishment. The wrongs of the criminal law are extraordinary ones which affect the community as a community. And when the wrongs are those engaged in by public officials, then the community and the state has an especial interest in ensuring that the official publicly accounting for those wrongs. (Duff has some radical and interesting things to say on this, which would take too much time here. See his Punishment, Communication, and Community at 183-17; see also Ekow Yankah, Legal Vices and Civic Virtues). [As a side note, Duff, Yankah, and Thorburn are not just theorists of criminal law; what they have to say about criminal procedure, and in particular its relation to political theory, deserves much more attention in the world of mainstream American criminal procedure than they are currently receiving). 

So trying the other Baltimore officers involved in the Freddie Gray killing is not a waste of time: it is an important way to treat the community as wronged and the officers as responsible—as individuals who are capable of being held responsible and so have a duty to answer in a public forum. It is not enough: if there was a wrong, then the officers in addition deserve public censure and should make some form of reconciliatory act to the public and the victims—the Freddie Gray family. If the court fails to acknowledge the officers’ wrong, they still remain on the hook as wrongdoers if not as offenders. But now the legal system too is on the hook, for failing to provide an adequate forum, not only for accountability, but also for censure and expiation. Without these further possibilities, the community—the public, the people—are inadequately valued by the state, and will continue to feel that they have been denied the justice they deserve as equal members of the polity.

One final thought: in her excellent book, Prosecuting Domestic Violence, Michelle Madden Dempsey also discusses the role of the prosecutor in constituting the community. While she and Duff have important differences, Dempsey's discussion of the ways in which the prosecutor constitutes the community on behalf of the state, and so the prosecutor's duties to the community as a public official, is essential reading for anyone interested in this topic. I hope to say a little more about Dempsey's work in a later post.

Power or Participation? Consensus in Political Deliberation

How should we structure our democratic institutions? Do we worry about political power, and so seek to maximize the ways in which political authorities are accountable to the public? Here we might emphasize reciprocity as a core feature of political institutions. Or to maximize the public’s participation in the political process. On the one hand, accountability checks the unbridled power of the political elite. On the other hand, public opinion is likely to be ill-formed or easily manipulated, more the result of passion than reason or knowledge, as Madison worried in Federalist 10? If we are worried about an ill-informed public, then we might promote a form of participation that allows political representatives to discount public opinion, even while maximizing public participation in selecting those representatives or even canvassing opinion.

The debate about political process has become especially important in the policing context. The Final Report of the President’s Task Force on 21st Century Policing enthusiastically endorsed procedural justice as the best way for the police to build trust and legitimacy within their communities. Procedural justice has been endorsed on the other side of the Atlantic as a means of promoting consensus based policing. Drawing on research from organizations whose members share a common purpose, procedural justice argues that we ought to adopt procedures that encourage participation, and treat the participants respectfully, beneficently, and neutrally.

We might think that fair procedures are ones that guarantee participation, but not influence. What matters is that authorities have a duty to allow participation, and convince participants that they are treated neutrally, respectfully, and as members of the same group, not that authorities must in practice so treat participants. We might think that while a fair procedure does not guarantee participation, it need not preclude it: a participative procedure would be one in which authorities and subordinates see each other as part of the same organization, with the same interests, and so would come to the same conclusions were everyone consulted. What matters most, however, is that the organization generate the right result, and that subordinates comply with that result. Because participative procedures maximize the likelihood of compliance, what matters is participation rather than influence or accountability (what we might call reciprocity). A version of this thesis can be found in Madison’s Federalist 10; and something like it has been described as unitary democracy by Jane Mansbridge. And it seems to be at the heart of procedural justice.

Consensus democracy is compatible with idea that authorities may be, for various reasons, justified in encouraging subordinate participation in the process of decision-making—giving subordinates a voice—while at the same time misrepresenting the amount of influence the subordinates wield in the process. If the goal is to ensure compliance or cooperation, and everyone would agree on the outcome if they were sufficiently well-informed and rational, then it does not undermine the subordinate’s interests in the right result that they are mistaken about the extent of their influence, particularly if they are more likely to reach that result without sanction (and, from the perspective of the authority, without expensive inducement).

But what of dissensus democracy, where there is no right result, or where there is a split authority (such as the tripartite structure of American government) or where the interests of the public conflict in certain ways with the interests of the government? Should we value compliance or cooperation with the authority and so accept as fair those procedures that more effectively produce these effects; or should we instead opt for a process that permits, not just participation, but also reciprocal accountability. That sort of procedure would not only require participation, but also power-sharing, among the members of the organization, or of the community, or of the country.

The debate is an old one, but it has practical urgency in the context of policing. The four-part procedure I described above—participant voice; authority neutrality, respectfulness, and beneficence—are the features of procedural justice which promise to reign in police use-of-force at the same time as more effectively ensuring compliance and cooperation than other methods, baed on inputs like law-abidingness, and outputs like crime reduction or even avoiding criminal sanctions. A core issue is whether compliance and cooperation with the police is a goal that we all share. For example, we have the right to terminate police encounters by walking away and refusing to answer questions; and even if arrested we have the right not to comply by declining to speak during an interrogation. Should we also have the right to challenge the police to justify taking us into custody or searching us by articulating their grounds for doing so? Should the police be dynamically responsive to our facts or reasons or can they ignore our input while still providing for our participation as a way of mollifying us and getting us to comply? Famously, police interrogations follow a two-part process in which the interrogator first determines whether the suspect is guilty or not (the unitary purpose) and then uses various psychological techniques to induce compliance, both at the waiver and at the confession stage of the proceedings. The technique is so powerful, studies show, that some suspects will not only confess, but actually convince themselves that their interrogator was right and they were mistaken about what actually happened.

How structure fair procedures to maximize participant power and participation presents difficult questions. Whatever the answer, procedural justice provides a fascinating account of the way in which the structural features of our interactions with authorities can have important psychological and behavioral consequences, consequences that are of deep democratic significance.

The End of Ambition?

I hear that sixty is the new forty.  I hope so.  It's the end of the month, and I'm thinking about ends.  And if the bromide is true, I'm premature.  But here's a trigger warning anyway: what follows is about "ought" fading into "is" or "becoming" fading into "being." It's also hopelessly self-indulgent, but my excuse is that I just got the schedule of faculty meetings for the next year.

By a quirk of career fate, I'm a bit older than most of my professional cohort (in this incarnation).  Next year  will be the fortieth anniversary of my first day of law school, something that flips me out, but also means that I was puzzling through Groves v. John Wunder before the majority (I suspect) of the readers of this blog were born. And it means that most of you will have no conception at all of the inner sense of being closer to the end than to the beginning. There's a hint of it in somebody like that young whippersnapper, President Obama, realizing that he has run his last campaign, but he really does have a whole career ahead of him still.  (On January 20, 2017, he'll be 55, which is only a year older than I was when I got a full time permanent faculty position.)

Running the last campaign is a nice metaphor, because campaigns are about becoming. Careers are a continuing series of campaigns - getting a job, making partner, getting tenure, getting promoted. NPR just ran an interview with Woody Allen, who turns 80 (!!!!) on his next birthday. To the extent that professors create through their writing, those pieces, like the movies that Woody keeps making, are becomings. But those are slightly different becomings, more like unfoldings, and not like steps up a ladder.

My friend, the philosopher Susan Neiman, has a new and neat little book about becoming and being, entitled Why Grow Up? Subversive Thoughts for an Infantile Age (New York Times Book Review by A.O. Scott here).  Susan is a fabulous translator of Enlightenment philosophy (particularly Kant) into practical wisdom. I don't necessarily share her outcomes (she's a lot farther to the left than I, a passionate moderate) but given her fundamental message, there's a lot of room for reasonable differences.  That's because adulthood is (to quote Scott's pithy summary) "the endless navigation of the gulf between the world as we encounter it and the way we believe it should be." Or as Susan says, it "requires facing squarely the fact that you will never get the world you want, while refusing to talk yourself out of wanting it."

So adulthood is also a mediation between simply being, on one hand, and continuing to become, on the other. Maybe being closer to the end than the beginning means that you have to be more selective about your becomings. The practical translation of that thought is the expression "life is too short," something that takes on more quantitative meaning the older you get, and particularly during faculty and committee meetings.

Even this blog post is a little becoming, because when I'm done with it, I've made the world a little more like it ought to be than it was (at least for me).  Each paragraph, each article, each book, each lecture, each student one influences is a little becoming.  But is accepting that as the rest of one's career also the end of ambition?

Aggregate Agency Adjudication

At Yale's Journal on Regulation, Chris Walker highlights our project on Aggregate Agency Adjudication with the Administrative Conference for the United States.  Michael Sant’Ambrogio and I are studying agencies that experiment with class actions, trials by statistics, and other aggregate litigation techniques to resolves lots of cases in their own courts.  As we discuss in The Agency Class Action, 112 Colum. L. Rev. 1992 (2012), agencies don't do this very often.  And there are lots of reasons why.  But, we want to see if agencies can use aggregate adjudication along with other tools -- rulemaking, informal guidance, stare decisis and ADR -- to resolve cases more effectively. 

I've already described Medicare's new pilot plan to use "trials by statistics" to alleviate its 500,000+ case backlog.  So, here's another example: the National Vaccine Injury Compensation Program. Congress created this program in the 1980s to provide people injured by vaccines with a no-fault alternative to lawsuits in federal court.  In theory, an "Office of Special Master" must decide whether to compensate someone in 240 days based on a showing that the vaccine caused the injury.  But see Nora Freeman Engstrom, A Dose of Reality for Specialized Courts: Lessons from the VICP, 163 U. Pa. L. Rev. _ (forthcoming 2015) (finding, among other things, that it takes longer than that).  Many claims proceed one at a time, like most benefit programs. But when over 5,000 parents claimed that a vaccine additive, called Thimerosal, caused autism in children, the Vaccine Program used three “omnibus proceedings" to pool together all the individual claims that raised the same highly contested scientific questions in front of just three adjudicators. As it happens, the Vaccine Program has used coordinated proceedings like this for more than 20 years. 

Even though the Act that created the vaccine program contains no provision for class action suits or anything like it, the program developed the concept of the omnibus proceeding on its own because the "same vaccine and injury often involve the same body of medical expertise."  Counsel representing large groups of individual claimants often use an omnibus proceeding to answer questions of "general causation," like whether a particular vaccine is capable of causing a specific injury. The issue of whether it did so in a specific case can then be resolved more expeditiously.  I'll provide a few more details about this process below, but can you think of other agencies that assign large groups of individual similar cases to the same adjudicator for similar reasons?  What are strengths and weaknesses of this kind of approach?  

The Vaccine Program uses two types of omnibus proceedings.  The first involves common vaccines and injuries--applying evidence developed in the context of one or more individual cases to other cases involving the same vaccine and the same or similar injury. See, e.g., Capizzano v. Sec’y, HHS, 440 F.3d 1317 (Fed. Cir. 2006). The second involves hearing evidence on a general theory of causation--like does a rubella vaccine cause chronic arthritis or other categories of joint problems? The special master makes findings based on that evidence and orders the parties to file papers establishing the extent to which the facts of individual cases fit within the courts general findings. See, e.g., Ahern v. Sec’y, HHS, No. 90-1435V, 1993 U.S. Claims LEXIS 51 (Fed. Cl. Spec. Mstr. Jan. 11, 1993).  For example, counsel representing a large number of petitioners and counsel for respondent may file expert reports and medical journal articles to support the theory that the rubella vaccine is associated with chronic arthritis. The special master  then (1) conducts a hearing in which the medical experts testify, (2) publishes an order setting forth the conclusions, and (3) files it in each of the rubella cases. If he finds sufficient evidence that the rubella vaccination could cause chronic arthropathy under certain conditions, he may order individual petitioners seeking compensation to establish those conditions in a separate filing. 

According to one special master, however, most omnibus proceedings work like bellwether trials in federal district court--organizing individual cases that raise similar issues in front of the same adjudicator, in the hopes that a big outcome settles aspects of the remaining cases:   

Most omnibus proceedings ... have involved hearing evidence and issuing an opinion in the context of a specific case or cases. Then, by the agreement of the parties, the evidence adduced in the omnibus proceeding is applied to other cases, along with any additional evidence adduced in those particular cases. The parties are thus not bound by the results in the test case, only agreeing that the expert opinions and evidence forming the basis for those opinions could be considered in additional cases presenting the same theory of causation.

The use of the omnibus proceeding is thus less binding than the "all-or-nothing" approach of the class action.  But there are some drawbacks.  First, some agencies, even if they wanted to, may not be able to adopt omnibus proceedings like the Vaccine Program. Many agencies use administrative law judges, who are assigned randomly to each individual case to minimize bias and to prevent gamesmanship. Second, omnibus proceedings raise interesting questions about the legitimacy of using an adjudication process to settle complex scientific questions.  Not only were many plaintiffs in the autism proceedings anxious about commencing cases together, so were members of the public heath community, who "found it unsettling that the safety of vaccines must be put on trial before three "special masters"" in an obscure  vaccine court. Said one: "the truth about scientific and medical facts is not, ultimately, something than can be decided either by the whims of judges or the will of the masses."  

To be fair, however, those concerns aren't unique to mass litigation, or for that matter, agencies that rely on rulemaking procedures, scientific panels, or even, the Center for Disease Control to resolve tough scientific questions.  And, in the case of vaccines and autism, a significant test for the limited resources of the vaccine program, at least some found that the ability to hear common cases together led to deliberations that represented a "comparatively neutral exhaustive examination of the available evidence."   But such concerns still raise the question about the best way to efficiently and consistently pool information about many common claims without sacrificing legitimacy, compromising due process, or magnifying the risk of error.  

The Bellwether Settlement

A curious thing is happening in a Bergen County court in New Jersey.  A set of trials scheduled to go forward this summer were resolved through an unusual settlement process. In a case that involved more than 3,000 defective hip-implants, the parties reached a $1 billion global settlement in record time, using what the court described as an unprecedented series of "bellwether settlements."  

By way of background, courts have used "bellwether trials" for a long time to resolve large numbers of similar lawsuits. In a bellwether trial (or trials), the parties select a small group of cases for jury trial out of a large group of similar claims.  A steering committee of plaintiff and defense counsel then use information gleaned from trial outcomes to resolve the remaining cases. Bellwether trials have been used to resolve many high profile cases--perhaps most famously in the Vioxx litigation against Merck and, most recently, in GM's litigation over its defective ignition switches.

But instead of "bellwether trials," the court facilitated a system of "bellwether settlements." That is, rather than use juries to decide the merits and value of certain cases, the parties--supervised by the court, magistrates and special masters--relied on a structured sample of 21 mediations involving typical plaintiffs to forge a global settlement.  It was hoped that the different settlement outcomes, much like a bellwether trial, would offer the parties crucial "building blocks"--providing critical information about how to globally resolve the remaining cases. And Judge Martinotti, the New Jersey judge designated to handle all of the cases, was incredibly successful.  The process not only resolved more than 2,000 lawsuits in New Jersey state court, but another 1,000 pending lawsuits in federal multidistrict litigation, all in one fell swoop.

A few thoughts beneath the fold.

I suppose many bellwether trials are really bellwether settlements in disguise.  Many of the cases that parties select as the "bellwether," as it happens, end up settling on the eve of trial. And because counsel in multi-district litigation share information, when enough cases settle, the parties learn how to structure a global settlement. So, here the court just chose to proceed based on the not-altogether-crazy idea that no case would reach a trial on the merits.  But the court's complete embrace of a "bellwether settlement" scheme raises interesting questions.  What do "bellwethers" mean when the procedures and outcomes lack any connection to the decisions a jury might reach?  

Most proponents of bellwether trials often assume some role for a jury in resolving a complex dispute.  First, bellwether trials provide a "dress-rehearsal" for other jury trials likely to come in a large case by helping parties hone their evidence and their arguments.  Second, a bellwether jury verdict assures that any eventual settlement bears some relationship to the merits of the dispute.  Third, the prospect of a jury trial in complex litigation wards off the threat of collusion and assures that the plaintiffs' counsel have sufficient bargaining strength in settlement negotiations.  Cf. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 621 (1997) ("Class counsel confined to settlement negotiations could not use the threat of litigation to press for a better offer... and the court would face a bargain proffered for its approval without benefit of adversarial investigation"). Fourth, a bellwether jury serves an important democratic function with deep roots in the history of American adjudication--providing bulwark against unelected judges who may harbor biases about what makes for a fair global resolution.

By dispensing with the jury entirely, bellwether settlements risk all of these important benefits.  But you could argue they have other advantages.  According to Judge Martinotti, the process yielded important information about claims, remedies and strategies that parties often would not share in preparation for a high-stakes trial. First, although bellwether trials provide a good way to measure how random members of the community  value common claims, they don't necessarily help counsel learn how random beneficiaries of a global settlement will value those same things. When the end-game is a global settlement, a focused sampling of arms-length negotiations could help counsel better identify solutions from the ground up.  

Second, bellwether settlements also avoid the problem of outlier or clustering verdicts--unexpectedly high or lottery-like jury awards that are difficult to average and threaten the chances of a more global settlement.  See Alvin K. Hellerstein, Managerial Judging: The 9/11 Tort Responder Litigation, 98 Cornell L. Rev. 127, 161-163 (2012)("at most, [bellwether trials would] have brought about settlements in individual claims or small clusters of claims, [but the] parties would not have had sufficient information to effect a wholesale global settlement."); Brian R. Martinotti, Complex Litigation in New Jersey and Federal Courts,44 Loy. U. Chi. L. J. 561, 575 (2012) ("[I]f the parties and counsel are in the midst of successful settlement discussions, a bellwether trial that results in a verdict outside the range of settlement—i.e., an outlier—may empower a party to go forth with the litigation and cause negotiations to break down.")

Finally, many leading members of the steering committees claimed that the structured mediations built "trust" among counsel in ways that don't easily occur until much later in multi-district litigation.

Bellwether settlements are part of a larger long-term trend taking place in the American courthouse.  As public courts export more cases to private dispute resolution--like mandatory arbitration--they also have imported values from ADR to find new ways to creatively resolve disputes, using court-annexed arbitration, special settlement masters and magistrates, and "problem solving" courts.  See Judith Resnick, Diffusing Disputes: The Public in the Private of Arbitration, the Private in the Courts, and the Erasure of Rights, 124 Yale L.J. 2084 (2015)(describing policies that "press trial-level judges to become conciliators, to deploy other individuals as “neutrals” to mediate or to arbitrate in courts, and to outsource decision making to the private market").  The result may be solutions that promise more speed, input, legal access, and as some have described, "paths to justice" than traditional trials.  

But the challenge is to determine what role our courts should play when large cases and "vanishing trials" push them to move outside their traditional public role as adjudicators--hearing adverse claims, supervising controlled fact-finding, and interpreting law. Judge Martinotti continues to play that traditional role in many complex cases. But like other judges in complex litigation, here his role seemed more like a public broker in a complex settlement marketplace--helping the parties set ground-rules and open the lines of communication to encourage people to enter into valuable contracts, exchange information about them, and in the process, and build trust necessary to forge a much larger, global settlement.   

Bar None

With the increasing number of law school graduates entering “alternative legal careers,” the question continues to surface as to whether taking a bar exam is necessary for a successful career in the law.  There have been studies about those who took a swing at the bar and failed, but little has been written about those who have never stepped up to the plate.  There are a few articles here and there with advice for those who may wish to opt out, but not many.  Yet another consideration is the large number of former lawyers who took the bar and later decided not to practice.  This figure includes many, if not most, law professors.  Is taking the bar for everyone, and would law schools maintain the same focus on its importance were bar passage excluded from counting toward accreditation or rankings?

Eye of the Beholder

Historically, case law has been hesitant to define what constitutes “art.”  However, with respect to what constitutes “pornography,” we all know the infamous Supreme Court line, “I know it when I see it,” as well as the discussion of the topic in this case and Justice Thurgood Marshall’s opinion here.  All of this being said, I am reminded of a painting that I once saw in a law professor’s office.  It was of a nude woman, clearly artistic, and certainly not pornographic.  Yet, I imagine that some students and other visitors were likely uncomfortable with it.  A personal office that is part of a larger professional environment may thus not be the best location for such displays, and courts are weighing in.  Should some art be off limits in the office – even in law schools?

Tone Deaf (or Deft)?

I wonder if fledgling law students still watch films like “The Paper Chase” to see what to expect from the law school experience.  Certainly, there are more modern examples, but all tend to include frightening faculty who, these days, might be viewed as uncivil, particularly with respect to their tones, mannerisms, and treatment of students.  Sometimes, these images have their very real counterparts.  I have known of actual professors who prided themselves on mirroring Professor Kingsfield.  To be sure, the Soccratic method has its place, but I sometimes wonder whether students learn to treat words and questions as weapons in law school, or, conversely, whether law school may attract those who like to argue.

With recent discussions of the importance of civility within the practice of law, just where (if anywhere) can anything but the sweetest of tones be inserted?  Are lawyers allowed to raise their voices and argue fervently anymore, or are we instead expected to immerse all professional disagreements in a bath of saccharine pleasantry that appears insincere in spite of its veiled civility? Where is the balance between civility and healthy (but heated) debate? 

The push for quantity

Zak's post, Howard's post, Bridget Crawford's post, and Orrin's post and the comments to them pose some questions and some answers about the quantity of publications law professors and candidates for teaching positions have. Underlying these is a tension about tradeoffs between quantity and quality and concerns about the source of the pressure to produce. I would even go farther than any of them, and suggest there is something of an arms race afoot that we ought to be concerned about. Based on my experience as a VAP and on the hiring committees of two schools, I also think there are reasons in addition to those already suggested for that arms race, and I'll list them in no particular order. There is a lot of overlap among these, but I use a list for convenience (quantity over quality).

1. Labor market competition. There aren't very many desirable positions available in any given year. Something like fewer than 10% of those who apply through the AALS (which is the only easy place to track hiring stats) are successful, and especially as faculties are shrinking, the market is only getting tighter. Given that scarcity, candidates need to be ever more accomplished to even be considered.

2.  Publications are the coin of the realm. Most, even if not all, law schools use scholarship (defined relatively narrowly) as a central criterion for evaluation of law professors. This might be because the universities law schools are a part of consider scholarship to be the hallmark of an academic discipline and so put significant pressure on their law faculties to demonstrate that they are academics rather than practitioners. It might also be because U.S. News, by giving so much weight to faculty peer evaluation, creates an incentive for more scholarship. In addition, because the focus on scholarship and "productivity" have been part of law school culture for a fairly long period of time, law faculties take for granted the central importance of publishing--and tend to expect more and more of their newer colleagues as a matter of course.

3. Tenure has weird effects. The meaning and value of tenure is subject to serious debate right now, and I don't intend to make any value statements in this post. That said, job security of any kind is unusual in the U.S. system of employment, and so requires special justification to exist at all. Tenure is thought to be a way to protect academic freedom--the ability to say unpopular things--that helps ensure that as much data and full debate can happen as a way to contribute to knowledge. Scholarship is seen as the justification for tenure, and also, then, the consideration for tenure. And because it's the quid pro the quo of tenure, schools want to ensure that even after tenure, professors continue to contribute to knowledge through scholarship. What better way to predict future productivity than past productivity? It's kind of like content validity of employment testing--the best predictor of job performance is the chance to perform a sample of the job for a period. And because denying someone tenure means essentially firing them, and maybe ending their career at least as a teacher, no one wants there to be any question about whether tenure will be awarded. So, the pressure to demonstrate future productivity moves to the point of hire (or even before, ever earlier) to ensure no problems in achieving tenure later.

4. Quantity as equalizer. One of the commenters noted that it's easier to count than to evaluate quality, and this is especially true across disciplines. But that is not the only way that quantity is used as an equalizer. Hiring decisions are based on proxies for qualities schools think are valuable--merit badges, in the words of my friend Brannon Denning (as noted by John Nelson in this comment to a thread on the nontradition JD candidate). Traditional badges of merit have been the ranking of the law school one went to, class rank, membership on law review, clerking for a federal judge or possibly a state supreme court judge, and short experience in a big firm. They are almost literally stamps of approval by some other person who has judged the intelligence or abilities of  the candidate. Because of the system of student-edited law reviews (and the number of outlets for publication), those of us without those merit badges have the opportunity to make our own by engaging in the conduct that law faculties say they value. And that conduct is much more within our own control. That pushes those even with the merit badges to also engage in that conduct to remain competitive. It also gives a more diverse group of candidates access to opportunity. Finally, it allows law faculties to rely on what looks like a more objective measure of candidate quality.

5. Increasing requirements in faculty evaluation. Schools continue to increase the number of publications as a requirement for tenure. At one time, a single work in progress was enough in some schools for a person to be awarded tenure. Now, the expectation seems to be 1-2 articles published per year. And those expectations are being "codified" into tenure and review requirements.

6. Technology. This may sound trite, but it is simply so much easier to produce and disseminate our writing that we do it a lot more. The advent of the word processor spawned a revolution in the length and number of briefs filed in cases and the length and number of court opinions. It just became so much easier to draft and revise writing that writing proliferated. The ability to transmit that writing via the internet spawned another revolution. Access to readers and avenues for writing meant more of it.

Working all together, these create a lot of pressure to publish early and a lot.

What Do We Talk About When We Talk to the Media?

One of the fun things about being a law professor is talking to journalists.  Even as a junior professor, one will often have the opportunity to comment in the news media, especially if one writes in a timely area or lives in a city with a decent media market.  It's also important. Professionally, one might spend two years writing a piece which redefines the theory of, say, tort law, to be rewarded with 89 readers on SSRN. But in a 15 minute interview with a major or even local media outlet, one can generate immense positive attention for a law school and an affiliated university.  From a mission standpoint, moreover, one of the things law teachers can do is educate the public about legal rules and institutions, and the public reads the news a lot more enthusiastically than it does 450-footnote articles.

Below are a few thoughts about talking to the media -- not meant to be exhaustive by any means, in keeping with the "tips" theme of some recent posts:

1. Talk in sentences:  Advising student writing, whether in the form of legal memos or law review Comments, we teach our students to write in paragraphs.  The media isn't interested in paragraphs.  At most, a journalist will quote a few sentences of your thoughts.  While you don't have to limit yourself to soundbites, you're unlikely to have more than even a few sentences quoted even after conducting a 20 minute interview.

2. It's not your story: I've seen a few professors complain over the years about being quoted out of context.  If you're worried that you won't be able to give the complete law professor answer, "it depends...", then you shouldn't talk to the media.  Once you hang up the phone, it's out of your hands.  The good news is that you can always elaborate or clarify on your own blog, or on your Twitter feed.  Thanks to Twitter, these days we're all insta-pundits.  So save the full explanation for a different venue.

3. Be right most of the time:  The best way to get a repeat call from a journalist, or have her refer you as a source to a colleague, is to be right most of the time.  If you can accurately predict, say, the outcome of a labor dispute, then you're far more likely to get a follow up call for a future story.  In scholarship it may be that being interesting is more important than being right, but that's not usually what interests journalists.

4. Air quotes don't show up on TV or the radio: I recently gave a 30 minute interview to a local TV channel. I summed up a somewhat confusing explanation by saying, with visible air quotes, that "my 'expert assessment' is..."  Of course, the video clipped out my air quotes.  It would be funny if I actually talked like that, but when my mom watches the .wav file it sure looks like I do.

5. Keep a jacket in your office: Not everyone boasts a Serious Professor Goatee that's worthy of Joe Slater. And sometimes we show up to work, particularly when writing in the summer, in plastic pants.  Amazingly, one can don a lawyer costume from the waist up in  a matter of moments.  I don't want to veer into this blog's alleged sartorial obsession, but it's handy to be able to look the part when an unexpected opportunity arises.

6. A wire service is worth a dozen interviews: It's super cool to know what you sound like in Croatian. If you are lucky enough to comment in a story for Bloomberg, AP, or Reuters, particularly one with international application or interest, you can find yourself quoted in dozens of papers, including many overseas.

7. You know more than you know: There are of course reporters who cover legal issues exclusively, or are lawyers themselves, and they may know as much or more law than you do.  But many reporters are really looking for someone who has legal training to respond to an emerging development, not for the world's leading expert.  You need not have written a treatise on an issue to be able to add some value.  Free of the conflicts arising from having to represent clients, with a little bit of legal research you can often help a reporter unpack legal issues and translate our professional "-ese" with ease.  It's okay to take a few minutes to read up on some issue before offering to talk to a reporter. 

8. TV will cancel your interview if Gary Bettman is available: I've had more than a few TV stations call to see if I could rush down to the local affiliate (after rushing home to change out of my plastic pants) to appear on some show or other via satellite uplink. And then, as I don my professor costume furiously, they call back to cancel because the commissioner of the league the story is on wants to appear instead.

9. Answer your phone: The best way to get a media opportunity is to be responsive, both to telephone calls and emails. For me, the reporter most likely called McCann and Feldman and only got to me because they were booked or couldn't comment due to other obligations.  But even if I'm not the first person they call, if I answer the phone or respond within a few minutes to an e-mail, I'm more likely to be the one they use for an interview than the next person down on their list.

For more useful tips, you might want to see this list of go-to answers by Colorado's Pierre Schlag, or this guide for faculty from DePaul University.

The Supreme Court Reads Law Reviews

Every now and then, law reviews take heat for being not just turgid and boring but useless as well. Given that widespread lament, it's worth noting how frequently recent Supreme Court opinions have been drawing on law reviews -- and I'm not just talking about yesterday's cite to a certain Professor Elena Kagan.

Here are a few salient examples of law review cites, from both majority opinions and separate writings:

• McCullen v. Coakley cites Kagan, McConnell, and Tribe.
• NLRB v. Noel Canning extensively cites Hartnett, Rappaport, Natelson, O'Connell, and Bradley & Morrison.
• Riley v. California cites Amar, Kerr, and Stuntz.
• Halliburton v. Erica P. John Fund cites Langevoort in considering whether "academic debates" had "refuted" a seminal precedent (answer: no), and Justice Thomas's concurrence in the judgment surveyed the relevant literature, with cites to about a dozen law reviews.
• Bond v. United States extensively cites Rosenkranz, Golove, Bradley, Bradley & Goldsmith, Calabresi & Prakash, Baude, and MacKinnon.

This list is under-inclusive in several respects -- including because, in all likelihood, I missed some journal cites even in the handful of cases I looked at. In any event, the list makes the point: the Court regularly finds law reviews to be not just useful, but useful in a way that shows up in the final published opinion.

I don't want to exaggerate the point. Some of these cites may be merely ornamental, for instance. And I doubt that the justices page through every journal that they cite. Still, the Court's regular recourse to law reviews shows that the genre remains a valued part of the intellectual environment in which the justices render their decisions.

Attracting the judiciary's attention isn't the sole or even paramount mission of law reviews. But it's still an important one -- and, to a considerable extent, it's getting done.

The above is cross-posted from Re's Judicata.

Happy Anniversary to ... Us!

Today marks 8 years since PrawfsBlawg has been around.  We oldsters can take a trip down memory lane over here. There's even a recommendation by Paul for a music group called Hem, which he again just "pushed" on me after I was needing rejuvenation from the Lumineers. In any event, reading our collective work product from eight years ago is weirdly fun. But I'm glad that eight years on, I, like so many of us who are still around in the bloviosphere, feel liberated from the once tyrannical anxieties about page views, links, and trackbacks. Sheesh. What narishkeit.

Thanks, as always, to the writers and readers who make this place special. See you 'round these parts soon.

 

Are All Citations Good Citations?

There’s a saying in the public relations field that “all press is good press.” The main premise is that, regardless of positive or negative attention, the ultimate goal is to be in the public eye. Does this same concept extend to legal academia? When our work is cited, but somehow questioned for its accuracy, merit, or value, is that better than not being cited at all?

Choosing Censorship

Yesterday, the House of Representatives held hearings on the Stop Online Piracy Act (it's being called SOPA, but I like E-PARASITE tons better). There's been a lot of good coverage in the media and on the blogs. Jason Mazzone had a great piece in TorrentFreak about SOPA, and see also stories about how the bill would re-write the DMCA, about Google's perspective, and about the Global Network Initiative's perspective.

My interest is in the public choice aspect of the hearings, and indeed the legislation. The tech sector dwarfs the movie and music industries economically - heck, the video game industry is bigger. Why, then, do we propose to censor the Internet to protect Hollywood's business model? I think there are two answers. First, these particular content industries are politically astute. They've effectively lobbied Congress for decades; Larry Lessig and Bill Patry among others have documented Jack Valenti's persuasive powers. They have more lobbyists and donate more money than companies like Google, Yahoo, and Facebook, which are neophytes at this game. 

Second, they have a simpler story: property rights good, theft bad. The AFL-CIO representative who testified said that "the First Amendment does not protect stealing goods off trucks." That is perfectly true, and of course perfectly irrelevant. (More accurately: it is idiotic, but the AFL-CIO is a useful idiot for pro-SOPA forces.) The anti-SOPA forces can wheel to a simple argument themselves - censorship is bad - but that's somewhat misleading, too. The more complicated, and accurate, arguments are that SOPA lacks sufficient procedural safeguards; that it will break DNSSEC, one of the most important cybersecurity moves in a decade; that it fatally undermines our ability to advocate credibly for Internet freedom in countries like China and Burma; and that IP infringement is not always harmful and not always undesirable. But those arguments don't fit on a bumper sticker or the lede in a news story.

I am interested in how we decide on censorship because I'm not an absolutist: I believe that censorship - prior restraint - can have a legitimate role in a democracy. But everything depends on the processes by which we arrive at decisions about what to censor, and how. Jessica Litman powerfully documents the tilted table of IP legislation in Digital Copyright. Her story is being replayed now with the debates over SOPA and PROTECT IP: we're rushing into decisions about censoring the most important and innovative medium in history to protect a few small, politically powerful interest groups. That's unwise. And the irony is that a completely undemocratic move - Ron Wyden's hold, and threatened filibuster, in the Senate - is the only thing that may force us into more fulsome consideration of this measure. I am having to think hard about my confidence in process as legitimating censorship.

Cross-posted at Info/Law.

Classroom Debates on Sensitive Topics

Thanks to the PrawfsBlawg folks for allowing me to join them again. I thought I'd start by discussing a teaching technique that I've found useful for covering sensitive cases in a large class. I teach constitutional law, and students sometimes hesitate to talk a lot about topics such as abortion and affirmative action. This is unfortunate because they undoubtedly have many ideas to share. I therefore solicit four volunteers about a week in advance. I divide them into teams of two. One team has the job of attacking the core holding of a controversial Supreme Court case (say Roe v. Wade). The other team must defend the case. In addition, one person on each team is supposed to focus on legal doctrine, and the other person is supposed to focus on "policy" arguments.

At the beginning of the designated class, each team of two sits at a separate table in front. I let the class know that each team is playing a role, so there should be no automatic assumption that the debater is voicing their personal views. The attacking team then goes first. Each speaker on that team makes their arguments against the case for 5-7 minutes to the class. Hopefully, they make things interesting right away. Then the other team responds with each speaker getting 5-7 minutes. After that, I allow the teams to debate each other directly for a period. During this whole time, I'm sitting somewhere in the classroom with the students. Once the debating has died down, I let students in the class raise their hands and ask questions or raise issues with the debaters. What almost always ends up happening is that the students have a very instructive conversation about different aspects of the case and the bigger issues. They basically teach each other. I just play referee occasionally. Usually the students also end up saying some funny things which breaks the ice. In the next class, I may discuss a few issues that were not covered. I encourage folks to try something like this if you think it might be suitable. I would also enjoy learning if others do something similar to handle sensitive questions.

Is deliberation overrated?

I'm not saying that deliberation is necessarily overrated, but I'm starting to wonder about its relative value. In recent years I've read a number of books and articles on the decision making processes of groups such as James Surowieki's The Wisdom of Crowds (2005) and Cass Sunstein's Infotopia: How Many Minds Produce Knowledge (2008), and found them to be very interesting and insightful. Both of these books at least suggest the possibility that group decision making may not always be better with group deliberation.

Of course, to suggest that something is 'overrated' typically implies that it is somewhat highly rated in the first place. When I look around, I see deliberation everywhere - government decisions, academic committee decsisions, tenure decisions, where to eat lunch, jury outcomes, Supreme Court outcomes (ok, only to a degree on that one). I think it's fair to say that deliberation is cherished in this country. But is it all that it's cracked up to be? What are its attributes? How do we evaluate its worth (relative to other systems)?

For a bit of class fun last semester, I tried a class exercise that was suggested by one of my readings on this subject.

I divided the class into three groups of equal size: 1) The deliberation group, 2) The secret vote group, and 3) the list vote group. I then held up for the class to see (all had roughly equal views) a glass container of paper clips. They were able to view the container for 30 seconds. I then asked the groups to decide how many paper clips were in the container. The secret ballot group was to do just that - each person would make a guess, write it down in private and their estimates would be averaged. The list  group would use a list - the first person to decide would write their estimate on the top of the list and then the estimates would go from there (everyone could see the prior estimates)- and they were averaged. The deliberation group deliberated on the best estimate and used a consensus decision rule on the number of paper clips.

The results? The best estimate was by the secret vote group, followed by the list group, and the worst estimate (by far) was by the deliberation group. Of course, this little exercise is hardly ready for scientific peer review and was done primarily for fun and to introduce the class to varying decision methods. However, given the prevalence of deliberation in our society, might it give us pause to think about whether it's 'overrated'? I'm not sure. Certainly there are other considerations at issue (e.g. how the process makes participants feel). But I thought I'd see what Prawfs readers thought.

Transitions

Happy Beer and National Pig Day!

It's March 1, and so we have thanks to extend to our wonderful, just wonderful, group of February bloggers, some of whom will be staying on to get some remaining posts finished. And we must also welcome a group of new and returning voices to the Prawfs cabaret. Joining us for the first time we have Dan Rodriguez, the former dean of USD law school who is now at Texas (though this semester at Columbia LS), and Ari Waldman, who teaches at CWSL in San Diego. Hmm, unwitting San Diego connections there. Anyway, we also have Jeremy Blumenthal returning from Syracuse, Adam Kolber at Brooklyn (though formerly of San Diego), Chad Oldfather (from Marquette) and the inimitable Michael Waterstone from Loyola LS in LA. Welcome all.

On a sad note, I regret to inform readers that Peter John Gomes, one of America's great and distinctive voices, passed away last night. One of my favorite Peterisms was his penchant for referring to professors and preachers as people who earn their daily bread by the sweat of their jawbones. I still remember his senior sermons urging us to seek passion in whatsoever our hands find worthwhile and to find serenity as a form of stability in the absence of security. His passing, at the age of 68, is unspeakably sad. He was a beacon of joy and a fount of insight and laughter. I will miss him terribly. May his memory be a blessing for all those who learned from and loved him.

Is "Intellectually Vacuous" the Right Expression for Veil-Piercing Doctrine?

Over at his blog, Steve Bainbridge endorsed a view, inspired by comments from Steve Bradford (Nebraska) at Business Law Prof Blog to the effect that every time he got to teaching "veil-piercing," he was reminded again how "intellectually vacuous" the doctrine was.

I sympathize.  I have the same reaction when I teach veil-piercing.  Why?  It's the tempest in a teapot problem that affects much of what commercial and business lawyers learn in school, on one hand, and what they practice, on the other.   Were you inside the teapot of an idiosyncratic case that ends up as an appellate decision on veil-piercing, it would seem like a Category 5 hurricane.   You read five or six cases with outrageous facts and try to reconcile how the doctrine for why corporations legitimately exist (individual use them to shield themselves from liability) is exactly the same as the doctrine under which individuals can be tagged (individuals used them to shield themselves from liability).  Blow winds and crack your cheeks, rage, blow!  But piercing cases are rare, idiosyncratic, and usually marked by some outrageous conduct that makes the decision, in retrospect, not particularly surprising.

But I disagree that the proper description of the problem is intellectual vacuity.  The problem is trying to reduce to propositions something that propositions can't reduce.   I've been teaching first year contracts and I've encountered this same "vacuity" problem every time the standard is "justice" (as in promissory estoppel), unconscionability, or mistake.  Analogical reasoning doesn't work because it is inductive analogy - the cases are supposed to describe a rule - rails in a Wittgensteinian sense - that point you to the next result, and there are no rails, or there are too many rails, or they aren't parallel (metaphorically speaking).   The better way to approach this is to understand that (a) we have a non-propositional conception of the prototypes of corporate legitimacy and corporate legerdemain, (b) the prototypes sit in polar opposition on a continuum, and (c) the rationalizing propositions follow the non-propositional and intuitive metaphoric leap from the specific case before us to a prototype.  Another in my series of Venn representations of this kind of polarity is at left - this on unconscionability.

Shameless self-promotion alert:  I discuss this cognitive process at length (giving credit where credit is due - I didn't make this stuff up) in three recent papers:  Metaphor, Models, and Meaning in Contract Law;  The Financial Crisis of 2008-09:  Capitalism Didn't Fail But the Metaphors Got a "C" (Minn. L. Rev., forthcoming), and The Venn Diagram of Business Lawyering Judgments (46 Seton Hall L. Rev. 1 (2011), forthcoming).

Interdisciplinary Angst? - A Response to Boyden

I started to write a comment to Bruce's very interesting post, but it started to get long and then I realized I'm a guest blogger.

There are probably a dozen books, not all of them necessarily well known, that have had a fundamental impact on my thinking.  One of them was a little piece by a organizational behaviorist by the name of Barry Johnson, entitled Polarity Management.  The thesis is that some problems are only manageable, not solveable.   The hallmark of such problems is that they demonstrate a conflict between interdependent but mutually exclusive polar values, each of which has an upside and a downside.  A good example in a business organization is the polarity of teamwork versus command-and-control.  Teamwork's upside includes buy-in, energy, synergy of ideas, innovation.  Its downside is its lack of speed, bureaucracy, "camel" creation.  At the other end of the polarity, command-and-control is alienating and often bereft of esprit, enthusiasm, but it is decisive and clear.  Moreover, organizations show a tendency to move from the downside of one value by adopting the other, taking the benefits of its upside until the ill effects show up and then repeating the process to the other end of the polarity (over and over and over).  (I saw this when "Total Quality" showed up in the early 90s to replace hierarchical management - you couldn't change the brand of coffee in the break room without a brainstorming session.  So there was the counter-revolution.)  The trick is to manage the polarities, not solve them.

When we talk about any professional or academic discipline, we are talking about a construct that is some mix of concept and social organization.  There is no reason to think that the disciplines that have spun off from philosophy over the last 150 years cut nature at the joints (as some people are want to say).   Or to put it another way, "independent discipline" compared to what?  The "problem," if it is one, of disciplinary boundaries involves the interdependent but mutual exclusive values of (a) professional certification and authority (note the irony of my including a bibliography below, by the way giving weighty authority on interdisciplinarity) versus interdisciplinary exploration, and (b) deep and focused study versus creativity and innovation.  It seems to me what leaders of academic institutions ought to be doing is managing the polarity rather than seeing it as a problem to be solved.   It's obvious that there's huge value in both deep doctrinal competence and cutting edge weirdness (neuroeconomics, as a case in point).  Against the downsides, respectively, of stultification and dilettantism.  Certainly highlighting the issue (as in Bruce's post) is the first step to managing it, but it's not a problem that has an answer.

At the risk of stepping on Patrick O'Donnell's bibliographic toes, there's been some interesting work assessing disciplinarity both generally within academia (Michele Lamont, How Professors Think: Inside the Curious World of Academic Judgment; Louis Menand, The Marketplace of Ideas: Reform and Resistance in the American University) and law (Peter Goodrich, "Intellection and Indiscipline").  Also on the issue of the rise of social science disciplines generally and history as a discipline specifically, see Thomas Haskell, The Emergence of Professional Social Science:  The American Social Science Association and the Nineteenth Century Crisis of Authority, and Objectivity is Not Neutrality:  Explanatory Schemes in History.  And what would a guest blog post be without some self-promotion:  my thesis ("The Venn Diagram of Business Lawyering Judgments", forthcoming, 46 Seton Hall L. Rev. 1 (2011)) that effective business lawyering demands a skill in being interdisciplinary, a discipline I have coined "metadisciplinarity," otherwise known as the deep art of being meaningfully shallow.

Charles Fried on the Individual Mandate (and a Plug for Our Contract Law Symposium)

Charles Fried of Harvard, former Massachusetts SJC justice and Solicitor-General in the Reagan administration (hence a long time Republican), testified before the Senate Judiciary Committee, excoriating Judge Vinson's constitutional analysis in the individual mandate case.  (HT Dan Farber via Facebook).  Obviously he does not agree with Randy Barnett and Elizabeth Foley.  But I leave constitutional matters to others like Howard.

Instead, I want to take the opportunity of this unexpected conjunction to segue into a plug for an event here in Boston at the Suffolk University Law School on Friday, March 25, 2011 in which you can hear both Professors Fried and Barnett, among others, but on a far less controversial topic:  contract theory.  This year marks the thirtieth anniversary of Professor Fried's Contract as Promise, the book I'm sure it's fair to say is the single most cited source for the thesis that what justifies contract law -- the state's intervention in the adjudication of disputes arising out of private and voluntary agreements -- is the upholding of the sanctity of promise as a moral obligation.  We will have four panels during the day -- it's going to be crowded, but Professor Fried was a hell of a draw! -- with papers and commentary by the aforementioned Professors Fried and Barnett, as well as T.M. Scanlon, Barbara Fried, Alan Schwartz, Daniel Markovits, Jean Braucher, Seana Shiffrin, Rachel Arnow-Richman, Carol Chomsky, Avery Katz, Richard Craswell, Juliet Kostritsky, Gregory Klass, John C.P. Goldberg, Curtis Bridgeman, Lisa Bernstein, Henry Smith, Roy Kreitner, Nathan Oman, and Jody Kraus.  The papers and proceedings will be published in a volume of the Suffolk Law Review.

There is no charge for attendance but we do ask you to register, which you can do online at Contract as Promise at 30:  The Future of Contract Theory, where you will also find links to the tentative program and  for accommodation at preferred rates. 

And I promise that March 25 will be a beautiful early spring day in Boston, with not a trace of snow.

SEALS/AALS/LSA Round-tables: Can they migrate to the web here on Prawfs?

I don't know about you, but I find it's difficult to attend all the good panels going on at conferences such as SEALS, where there are simultaneous panels competing for one's attention, not to mention the temptations of the informal schmoozing, and yes, the surroundings. So I have an idea: if you were on a panel this past week at SEALS, and you thought, "you know, it's a shame that there were only 2 to 25 people in the room available to hear the sharp thoughts of my co-panelists," consider yourself invited to organize your co-panelists' talking points and merge them into a document (or a series of posts) that we can put up on Prawfs and have a larger discussion about.

After the jump, I'll mention just a few of the panels I either regretted missing or attended but think should have a wider audience. Hopefully, some of the folks listed will organize the others, or at least, share their own thoughts here. My own panel will be doing something like this soon. Just to be clear, this is not an appropriate forum for the new scholars panels (sorry!), since those are individual papers; I'm looking for remarks people wrote up for panels around a particular shared theme.

The Future of the Media in an Internet Age

This panel focuses on the future of the media in light of a host of new and emerging technologies, including the Internet, Twitter, Flicker, blogs, and cable and satellite communications. 

 

Moderator: Dean David Logan, Rogers Williams University School of Law

 

Speakers: Professor Dr. Dieter Dörr, Johannes Gutenberg University Mainz, Faculty of Law (Germany); Professor Udo Fink Doerr, Johannes Gutenberg University Mainz, Faculty of Law (Germany); Professor Russell Weaver, University of Louisville, Louis D. Brandeis School of Law; Professor Carol Pauli, Loyola University New Orleans College of Law; Professor Glenn Reynolds, The University of Tennessee College of Law; Mr. James Winston, Rubin, Winston, Diercks, Harris & Cooke, LLP, Washington, DC

Report from the ABA, AALS & LSAC: The Top Ten Questions in

    Legal Education

Three of the leaders of the major legal education organizations will address the great questions facing legal education and the profession.  Questions will be collected from SEALS members and each of the three leaders will have an opportunity to address "The Top 10 Questions in Legal Education."

                                               

Moderator/Discussant: Dean David Brennen, University of Kentucky College of Law

 

Speakers: Professor Susan Westerberg Prager, Executive Director, Association of American Law Schools; Mr. Bucky Askew, Consultant on Legal Education, American Bar Association; Mr. Daniel Bernstine, President & CEO, Law School Admission Council

 Supreme Court Update–Individual Rights

This part of the Supreme Court Update focuses on recently decided cases pertaining to governmental powers and individual rights (e.g., Free Speech, Establishment Clause, Free Exercise Clause, Equal Protection).

 

Moderator: Professor James Wilets, Nova Southeastern University, Shepard Broad Law Center

 

Speakers: Professor Melissa Waters, Washington University School of Law; Professor Howard Wasserman, Florida International University College of Law; Professor Frank Ravitch, Michigan State University College of Law; Professor Otis Stephens, The University of Tennessee College of Law; Professor Ronald Krotoszynski, The University of Alabama School of Law

Supreme Court Update–Corporate, Civil Litigation, Business, Administrative & Regulatory Issues

This part of the Supreme Court Update focuses on decisions relating to corporate issues, civil litigation, administrative and business issues, as well as important legislation enacted by Congress or the states.

 

Moderator: Dean Dennis Honabach, Northern Kentucky University Salmon P. Chase College of Law

 

Speakers: Professor William Funk, Lewis & Clark Law School; Professor Christopher Pietruszkiewicz, Louisiana State University Law Center; Professor Thomas Plank, The University of Tennessee College of Law; Professor Donna Nagy, Indiana University Maurer School of Law

You’ve Got Tenure!  Now What?

  Noon This panel will address how to manage the transition from untenured to tenured status and how one’s professional life changes once tenure is achieved.  Questions to be considered include: How does being tenured affect one’s teaching, scholarship, and service, or one’s relationship with colleagues? Do expectations or pressures – whether internal or external – change?  How does one measure success after a significant benchmark has been achieved?  Does one still need a mentor?  What new obligations arise post-tenure?  This panel, which is organized by the New Scholars Committee, is especially aimed at the soon-to-be or newly-tenured, although many others will find it interesting.

            Moderator: Professor Matthew Parlow, Marquette University Law School

                                                                                                                       

Speakers: Professor David Case, The University of Mississippi School of Law; Professor Geoff Rapp, University of Toledo College of Law; Professor William Araiza, Brooklyn Law School; Professor Mark Bauer, Stetson University College of Law

The Value of Empirical Research in Law School Pedagogy, and Methods for Pursuing Such Research

Legal education lags behind other disciplines in the development of scholarship, and particularly empirical scholarship, about teaching, assessment and student learning.  In this program, panelists will present their empirical research about student learning in the context of a discussion about how law professors might begin to develop their own empirical studies on teaching, assessment, and student learning.  To lay the groundwork for others interested in pursuing this area of legal scholarship, panelists will use their work to illustrate how they tested underlying assumptions about student learning and will discuss the research methodology and design issues involved in their respective studies.  Speakers will provide participants with papers on different topics embraced by this subject.

 

Moderator: Professor Howard Katz, Elon University School of Law

 

Speakers: Professor Andrea Curcio, Georgia State University College of Law; Professor Eric Degroff, Regent University School of Law; Professor Emmy Reeves, University of Richmond School of Law; Professor Leah Christensen, Thomas Jefferson School of Law; Professor William Henderson, Indiana University Maurer School of Law

Roundtable Discussion: Obtaining and Executing Casebook Contracts

   This panel focuses on the nuts and bolts of how to obtain casebook contracts and (once obtained) how to bring them to fruition.  The panel is composed of established casebook authors.

 

Moderator: Professor Bradley Shannon, Florida Coastal School of Law

 Speakers: Professor Leonard Rotman, University of Windsor Faculty of Law (Canada); Professor George Kuney, The University of Tennessee College of Law; Professor Alex Bolla, Samford University, Cumberland School of Law; Professor Linda Jellum, Mercer University School of Law; Professor Douglas Moll, University of Houston Law Center

Roundtable Discussion

Why Do We Have the Fourth Amendment?

In this panel, the moderator will pose questions to four experts on the history of and/or rationale for the Fourth Amendment. These experts will share their thoughts and expertise on such questions as who and what the Fourth Amendment was designed to protect, how faithful the court has been to original intent, how well the Court has adapted the Amendment to modern times, and what the future may hold for the Fourth Amendment.

 

Moderator: Professor Arnold Loewy, Texas Tech University School of Law

 

Speakers: Professor Morgan Cloud, Emory University School of Law; Professor Thomas Clancy, The University of Mississippi School of Law; Professor Wayne Logan, Florida State University College of Law; Professor Janet Hoeffel, Tulane University Law School

Executive Compensation in Recessionary Times

This panel will step back and begin to assess the flurry of activity from the last few years around regulating executive compensation.  As we begin to emerge from the recession, we can ask: were the measures implemented, including such steps as the appointment of a government "compensation czar," limited to the unique circumstances of billion-dollar bailouts and the danger of another great depression? Or were these necessary correctives to an under-regulated market that needs continued government involvement to ensure that incentives are properly aligned?  In answering these questions, the panelists will also try to revisit first principles about the aims of executive compensation regulation.

 

Moderator: Professor Jason Solomon, The University of Georgia School of Law

 

Speakers: Professor Omari Simmons, Wake Forest University School of Law; Professor Gregg Polsky, University of North Carolina School of Law; Professor Brett McDonnell, University of Minnesota Law School; Professor Miriam Cherry, University of the Pacific McGeorge School of Law

Roundtable Discussion: The Exclusionary Rule

For this panel, the moderator will ask questions of four experts on the exclusionary rule of the Fourth Amendment. These experts will share their thoughts and expertise on such questions as whether the exclusionary rule significantly deters police violations of the Fourth Amendment, whether there are reasons apart from deterrence that might justify the exclusionary rule, whether the costs of the exclusionary rule outweigh its benefits, and whether there are other means of enforcing the Fourth Amendment that might work as well or better than the exclusionary rule.

 

            Moderator: Professor Catherine Hancock, Tulane University Law School

 Speakers: Professor Scott Sundby, Washington & Lee University School of Law; Professor Christopher Slobogin, Vanderbilt University Law School; Dean Bruce Elman, University of Windsor Faculty of Law (Canada); Professor Renee Hutchins, The University of Maryland School of Law 

Roundtable Discussion on Grand Jury Reform: An Idea Whose Time Has Come (Again)?

This panel will explore grand jury reform from a variety of scholarly perspectives.  The panelists will examine the constitutional role of the grand jury in the modern criminal justice system, debate the need for functional enhancements and reform, and analyze prospects for implementation of such reforms in the current political climate.

 

Moderator: Professor Katrice Copeland, Pennsylvania State University, Dickinson School of Law

 

Speakers: Professor Roger Fairfax, The George Washington University Law School; Professor Andrew Leipold, University of Illinois College of Law; Professor Ric Simmons, The Ohio State University Michael E. Moritz College of Law; Professor Niki Kuckes, Roger Williams University School of Law; Professor Eric Miller, Saint Louis University School of Law; Professor Margaret Lawton, Charleston School of Law

Innovative Teaching Techniques Used in First-Year Courses

            Many first-year law school courses have historically focused their teaching techniques on the conventional Socratic method.  While that method remains useful in different ways, advances in classroom technology as well as increased research into student learning styles are providing first-year professors exciting new opportunities to innovate in the area of teaching and learning.  This session will present and analyze several of those techniques from professors who have implemented them into their first-year courses.

 

Moderator: Professor Matt Vega, Faulkner University Thomas Goode Jones School of Law

 

Speakers: Professor Chad Emerson, Faulkner University Thomas Goode Jones School of Law; Professor Helen Grant, Elon University School of Law; Professor Shelley Saxer, Pepperdine University School of Law; Professor Gregory Stein, The University of Tennessee College of Law

Criminal Procedure Workshop

Legislative and Judicial Protection of Criminal Defendants: Is Criminal Procedure Less Countermajoritarian Than We Think?

The conventional wisdom in the criminal procedure field is that rules protecting defendants are countermajoritarian, meaning that legislatures rarely protect criminal defendants and courts often have to step in and make rules contrary to what legislatures would enact and the public would support.  But is that correct?  Many Supreme Court opinions protecting criminal defendants consider how many states have adopted the protective rule.  And some seemingly punitive states actually have legislatively enacted codes of criminal procedure that are far more generous to criminal defendants than what is required by the federal Constitution.  This panel explores evidence indicating that criminal procedure may not be as countermajoritarian as we think it is.

 

Moderator: Professor Sharon Finegan, South Texas College of Law

 

Speakers: Professor Adam Gershowitz, University of Houston Law Center; Professor Corinna Lain, University of Richmond School of Law; Professor Ronald Wright, Wake Forest University School of Law; Professor Douglas Berman, The Ohio State University Michael E. Moritz College of Law

New Empirical and Theoretical Work on Judging and the Judicial Process

The panelists will explore recent methodological developments in the study of the judicial process.  These include the rise of empirical research, behavioral economics, and other law & psychology approaches, as well as work exploring the theoretical underpinnings of the judicial role.  Among the topics open for examination are the strengths and weaknesses of these various methodologies, whether this work forms the basis for a coherent subdiscipline, how far such a subdiscipline might extend, and possible future directions of such scholarship.

 

Moderator:

 

Speakers:  Professor David Fagundes, Southwestern Law School; Professor Corey Yung, The John Marshall Law School; Professor Scott Bauries, University of Kentucky College of Law; Professor Chad Oldfather, Marquette University Law School

Rehabilitation and Restoration in Criminal Punishment:  Dead End or Realistic Imperative?

Some have alleged that our modern criminal punishment system no longer embraces the idea that criminals can and should be made whole, become reconciled to the community, and successfully re-assimilate upon release.  This panel will offer a variety of perspectives on the matter, from socio-political, to social-science, to on-the-ground experiential.

 

Moderator: Professor Andrea Dennis, University of Kentucky College of Law

 

Speakers: Ms. Sarah Higinbotham, Georgia State University, Department of English Literature; Ms. Ketanji Brown Jackson, Vice-Chair, United States Sentencing Commission; Professor Bruce Winick, University of Miami School of Law; Professor David Pimentel, Florida Coastal School of Law

Criminal Law Workshop

          The Feminist Challenge in Criminal Law

The title of this panel is taken from a 1995 article by Stephen Schulhofer discussing the various philosophical and practical challenges of creating a more woman-centered criminal justice system.  Chief among these concerns was the potential threat that feminism posed to defendants’ rights.  Since Schulhofer's article, feminism-based criminal law reform has entered the mainstream and produced wide-ranging impacts on the administration of rape and domestic violence law.  Today, a new body of legal literature has developed assessing the efficacy, desirability, and impact of these reforms and analyzing what these reforms say about feminism's legacy.  The presenters are part of the larger dialogue about gender-based reform in criminal law – its past, present, and future.

           

Moderator: Professor Adele Morrison, Wayne State University Law School

 

Speakers: Professor Leigh Goodmark, University of Baltimore School of Law; Professor Susan Kuo, University of South Carolina School of Law; Professor Aya Gruber, The University of Iowa College of Law; Dean Geraldine Mackenzie, Bond University Faculty of Law (Australia)

Plenary Session

 11:00  The Future of Casebooks, Publishing & Course Materials

With the development of new (e.g., electronic) publishing technologies and shifts in the economics of publishing, the publishing business is in a period of significant transition.  This panel, which includes casebook authors, publishing representatives, and an intellectual property law teacher-scholar will examine these transitions and where they are likely to lead us.

 

Moderator: Professor Vincent Cardi, West Virginia University College of Law

 

Speakers: Mr. Keith Sipe, Publisher, Carolina Academic Press; Ms. Pamela Siege, Director of Publishing, West Academic, Thomson Reuters; Ms. Carol McGeehan, Publisher, Legal Education, Aspen Publishers; Ms. Leslie Levin, Executive Acquisitions Manager, LexisNexis; Professor Steve Friedland, Elon University School of Law; Professor Michael Schwartz, Washburn University School of Law; Professor Joel Friedman, Tulane University Law School; Mr. John Mayer, Executive Director, Center for Computer-Assisted Legal Instruction/CALI; Professor Gary Pulsinelli, The University of Tennessee College of Law; Mr. Niko Pfund, Oxford University Press

The Individual Health Care Mandate and Enumerated Powers

Shortly after the health care reform bill was signed into law, the attorneys general of 20 states filed lawsuits challenging the individual mandate as exceeding Congress’s powers.  This panel will consider the mandate’s constitutionality, as well as procedural issues presented by the litigation.

 

Speakers:  Professor Randy Barnett, Georgetown University Law Center; Mr. David Kopel, Research Director, Independence Institute; Professor Gilliam Metzger, Columbia Law School; Professor Jack Balkin, Yale Law School

All that Glisters is Not Gold (Yes, I spelled Glisters right.)

If you haven't read The Merchant of Venice lately, let me be the first to urge that it is your duty as a lawyer to do so.  First, all the cool lawyers (oxymoron?) are reading it.  In fact, Shakespeare has been cited in over 800 judicial opinions.  Second, you will be amazed that your legal training gives you a different perspective on the play than you had when you read it in high school or college. 

I make this recommendation now because I had the great fortune to be asked to speak on a panel at an interdisciplinary conference at the University of Florida called Convergences and Conversions: The Merchant of Venice Into the Twenty-First Century.  I was the only law professor among professors of English literature, Spanish literature, Hebrew literature, History, Philosophy, Women's Studies, Film Studies, and Judaic Studies, which was intimidating.  However, I found it absolutely exhilarating to participate in a discussion in an interpretive community that is so attentive to allusions and nuance and so steeped in critical theory.  Even more exhilarating was the experience of reading The Merchant of Venice for the first time since I became a full-fledged lawyer, Jew, and mother.

One of the most interesting questions for me as a lawyer and Jew is why the Jewish merchant Shylock has faith that the legal system will give him the benefit of his bargain, his pound of flesh.  Why does Shylock insist that "[t]he Duke shall grant me justice"? (III.iii.8.)  Even before the trial scene, the play is full of examples demonstrating how Venetian law treated Christians and Jews unequally and helped to define the Jew as "other."  Portia's deceased Christian father is able to call on the law's assistance to help him impose control over who his daughter shall marry, but such is not the case for Shylock.  When the Christian Lorenzo steals Shylock's daughter and his ducats, Shylock lacks legal recourse to retrieve them.  To add insult to injury, the law ends up forcing him to financially aid the marriage.  Jews like Shylock would have played an essential role in the mercantile culture of Venice, and yet even commercial law was skewed against them.  With regard to the commercial law, Jews were apparently forbidden to own real property, which is what would have driven Shylock into the business for which he is reviled by the Christians dependent on it.  Family law, of course, is another example, in which there is pronounced inequality in the play.  Venice is even, as Shylock points out, a society in which resides "many a purchas'd slave." (IV.i.90)  Why, then, should Shylock be surprised when the Duke relies on a counterfeit legal expert (the disguised Portia) and a troubling precedent to resolve the claim? 

Despite Portia's eloquence about the "quality of mercy" (IV.i.184), the winning argument in the play is that Shylock's contract is trumped by a criminal law that protects only Christians.  Although you might remember that Shylock lost because he failed to specify that he could take blood along with his pound of flesh, the real problem was that execution of his contract would have required the taking of "Christian blood" (IV.i.310).  Even if the contract had mentioned blood, it appears that it would have been void because of Shylock's status as a Jew, and hence an alien.  As Portia explains, "It is enacted in the laws of Venice,/If it be proved against an alien,/That by direct or indirect attempts/He seeks the life of any citizen,/The party 'gainst the which he doth contrive/Shall seize one half his good; the other half/Comes to the privy coffer of the state,/And the offender's life lies in the mercy/Of the Duke only . . . "  (IV. i. 348-356).  Shylock, by virtue of his religion, is defined as alien, outside the equal protection of the laws.  His mistaken belief that contract law, at least, will apply in a neutral fashion is his undoing, leading to the loss of his property and religious conversion enforced by the power of the state.

For me, the play raises an interesting jurisprudential question:  why do individuals accustomed to unequal treatment in law still continue to expect Justice?  Is it because the law masks its role in constructing the individuals against whom it discriminates as "others"?  In the play the Duke speaks as if he is bound by law, and not free to decide in accord with the dictates of mercy, and Shylock apparently subscribes to this notion as well.  Why should he, when all of his past experience should have taught him that Venetian law will be written or interpreted to favor those in power?

I hope you'll reread it.  When you do, I hope you'll also ask yourself how come the mothers of Portia and Jessica are absent from the text.  When you answer that question, email me and let me know.  Enjoy.

Living Outside the Paradigms

Two different pieces got me thinking again about issues of depth and breadth, or alternatively, working in the spaces between disciplines.  (I'm loath to call it either inter-disciplinary or cross-disciplinary, because, to some extent, those terms already tinge the meta-thinking about it.)  I was explaining this yesterday to my father-in-law, who is visiting us here in Michigan.  He's a really bright guy (a lawyer), and loves ideas, but he's not a scholar by any means, and so I'm obliged to use plain English.  It went like this.  If you are constructing a thesis that borrows from many disciplines, how much of an expert in each discipline do you need to be?  Moreover, if it's really original work, who is going to be able to judge whether the work constructively pushes the inquiry along, or is simply bullshit?*  In other words, if you are going to write in law and phrenology, do you have to have the equivalent of a professional certification (whatever that is) in both disciplines?  And if you do, have you been sufficiently co-opted by both disciplines so as to kill off whatever inclination you may have had to do "out of the box" thinking?  That's the dilemma, and I don't think it's any more resolvable by way of a silver bullet than most other long-standing irresolvable debates (like "Tastes Great" or "Less Filling").

At the recommendation of frequent commenter, A.J. Sutter, I recently started a book by Hamline University philosopher of science, Stephen Kellert, entitled Borrowed Knowledge:  Chaos Theory and the Challenge of Learning Across Disciplines.  At the same time, Brian Leiter linked the other day to my friend Rob Kar's recent review (in the Notre Dame Philosophical Reviews) of Brian's Naturalizing Jurisprudence.  The fun in reading something like Brian's work, or Rob's review of it, is the deep dive into a long-standing dialogue; in this case, the jurisprudential debates over the last century or so over the possibility of explaining, philosophically, scientifically, sociologically, or psychologically, how judges go about making law, and more fundamentally, what law is.  Nevertheless, if your intuition happens to be that looking at what judges do is like looking backwards through a telescope (i.e., not wrong, but focused on a very particular instance of how humans manage to order their affairs in the whole scheme of life, law, norms, and business), then you keep bouncing out of it with something of a "so what?"  The "so what?" is likely the reaction of most normal people to most of what philosophers, historians, literary critics, and other sojourners in the humanities do anyway, but I'm a lawyer-practitioner who somehow plopped into the academy, for God's sake, and like Guy Noir, trying to find answers to life's persistent questions.  I thus feel compelled to figure out what might bridge us from the relatively pure jurisprudence of a Leiter or Hart or Raz to what I spent more than a quarter century doing in the real world, which was legal work, but most of the time not involving judges.

More below the fold on the opposite of the deep dive - borrowing from one field to another.

A couple of years ago, I got hung up on Gödel's Theorem, which is one of the groundbreaking instances of pure thought in the last century.  For the uninitiated, Bertrand Russell and Alfred North Whitehead purported to reduce all of mathematics to a set of foundational axioms and rules of inference, focusing primarily on sets and numbers (cardinal, ordinal, real).  Kurt Gödel, a member of the Vienna Circle, constructed a lengthy proof, the purpose of which was to show that any complete complex system of formal logic, like arithmetic (particularly as encapsuled by Whitehead & North's Principia Mathematica), contained propositions that were formally undecidable within the system (i.e., that they could not be proved either true or false using the axioms and rules of inference).  In other words, the system could be either wholly consistent or complete, but not both.  The proof method involves a formal version of the Liar's Paradox, in which the following phrase translates into numbers:  "[Is not provable] is not provable."  In other words,  we get to the point where the system loops on itself, and tells us in formal terms, that the  proposition "is not provable" we've postulated within the system, and then working only from the system's basic axioms and rules of inference, and thus appearing to be provable, is not provable.  That's what makes it a theorem.

This is a mind-bending thing to contemplate, and Douglas Hofstadter's Gödel, Escher, Bach is perhaps the most famous attempt to derive metaphors from it.  But is it an effective metaphor for reducibility or limitations on knowledge, or other epistemological or metaphysical insights?  Gödel himself, like many mathematicians, was something of a Platonist. 

When I was fiddling around with this (and there's a lot of fiddling in this area - do a Lexis or Westlaw search in law reviews on "Gödel"), Larry Solum, ever wise, voiced the cautionary message:  the formal logicians are very skeptical of attempts to extend metaphors from formal logic into other areas.  But are the logicians entitled to define the extension of the metaphor?  That's what Kellert's book is about, but more generally as to all disciplines (including a discussion of the question "what's a good metaphor?").  In particular, he looks at metaphors to chaos theory, something HE knows about, in economics, law, and literature.

Well, I'm just diving into this, so more to come later.

* I may have a special interest in this.  I have a book proposal under review with a major university press.  The following comment from one of the anonymous reviewers is one that I kind of cherish:  "It is clear the author has a special range of interest and expertise, and this book weaves the author’s unique range of interests together with purpose.  The problem is that not many people share the author’s range of interests."

Cambridge Police

I have been thinking for a few days about the Gates incident, trying to decide if I wanted to comment.  I am somewhat astounded at the number of people who are willing to be triers of fact on pretty sketchy evidence; my take on the world is more things like this arise out of fear, miscommunication, confusion, pride, and escalation than racism or bad intent.  In short, we all get a chance in our lives to do something stupid - whether it's in public or at the wrong time is a matter of luck.  My charitable interpretation is that everybody would prefer to take something back.

What I really wanted to comment about, however, was my unrelated experiences with the Cambridge Police Department.  Cambridge is one of the densest cities in the U.S. - it's very diverse economically and racially, and there is far less correlation between neighborhoods on those indicia than any place we've ever lived.  We live on a street off Porter Square that has expensive private housing, public housing, low income housing, and a hybrid "co-housing" (which is a kind of cross between a really nice condo and a kibbutz).  It is a semi-urban environment.  You don't know who all your neighbors are.  There are problems from time to time that are typical of cities - property crime (our house was robbed last year and we were unimpressed with the reaction of the detectives), drugs, etc.  Near the end of last year, there were two incidents of muggings on our street (one alleged perp was white, one alleged perp was black - it was equal opportunity street crime), and several of us began organizing a street association.  We had wonderful support from the Public Affairs Department of the Cambridge Police, the neighborhood sergeants and officers, and Commissioner Robert Haas himself, who has showed up at every event, including our "health and safety walk," in which about 50 neighbors did an inspection of dark areas, broken lights, and other safety issues.

Neither I nor anybody else is going to be able to make credible generalizations about individuals on the force, but on far more solid evidence than has come to fore on this incident, I have the impression that Commissioner Haas espouses a progressive kind of leadership that emphasizes a solid relationship between the department and citizens who want to take some responsibility for their own well-being.  That's not to excuse an officer who made a poor judgment (I suspect) about not just walking away from somebody who sounds like he was very agitated but not dangerous, nor does it minimize the real concerns about the presumptions black men have to face every day, but I just wanted to put in an unsolicited plug for the Cambridge Police Department on my little shred of evidence.

[Ed. note by DM: I took the liberty of deleting the anon comments in the thread below. It became a bit of a train wreck, as one of my former students noted; I apologize in advance for the fact that the comment thread now might be a little disjointed. If there's a desire to leave signed comments, please feel free to do so in a way consistent with our comment policy.]

Walking the Fine Line Between "Wide-Ranging" and "Shallow"

I started to write another comment to Dave Fagundes' interesting post on puzzle and prescription papers, but decided it deserved separate billing.

Just to review the bidding, the question is whether it's really the rule that all law review articles "must" have a normative, prescriptive coda (meaning that most turn out to be "prescriptive" rather than "puzzle" papers).  What Dave's wise mentor advised certainly (and anecdotally) strikes me as the conventional wisdom, because that's exactly what an old friend (law school classmate and former elite school dean) told me when I showed him the first piece I published.  My intuition is that this conventional wisdom is akin to the conventional wisdom on cross-examination techniques:  don't ever ask a question to which you don't know the answer.  That is advice designed to ensure that you never make a mistake, but the downside is that there are, indeed, times when experienced cross-examiners can ask questions whose answers they don't know, and following the conventional wisdom means you lose a great opportunity.  (For example, you can ask a question in which either possible answer works for you.)

My other intuition is that conventional wisdom generally arises out of community norms, which may or may not have anything to do with "truth-seeking" of pure inquiry.  Dave suggested maybe it was naive to strive for the ideal of pure inquiry, but I don't think it is (in a qualified way).  The distinction between regulative processes and constitutive processes is helpful here.  (My inner Kant is showing through.)   What we can recognize is, in terms of what we are ever going to know substantively (that is, "constitutive knowledge"), that we are hung somewhere between foundational truths and pure skepticism, and having to observe the objective world from a subjective standpoint.  Substantively, you can swing to the dogmatic side of things, and accept "normative" principles as TRUE foundationally, and you have to deal with the fact that others are going to take your assertions as faith-based or brute or unprovable or unreasoned.  Or you can swing all the way to the other side, and refuse to accept any normativity as TRUE foundationally, in which case you qualify as a Crit or maybe a pragmatic skeptic (that's how Richard Posner describes himself), but you still have to account for the intuitions of foundational truth. 

I know that my own thinking and writing has been described back to me as "wide-ranging," "wild," "layered rather than drilled," to which my response is that I try to walk the fine line between "wide-ranging" and "shallow."  It just doesn't strike me that what I really want to figure out about the world (being, as I am, an introspective sort) is defined by the norms a particular academic or professional community has put in place (notwithstanding the impact this has on an academic career, which is another factor in all of this, and something I'm somewhat less affected by).  I mean, think about Kuhnian paradigm, or the Luhmann critique of law as autopoietic (i.e. self-contained and self-generating).  This is, of course, the problem with cross- or inter-disciplinary work.  Is it wide-ranging or shallow?  Do you have to have an advanced degree in both disciplines to be qualified?  But if you have the advanced degrees, aren't you co-opted by the community norms and hence really not inter-disciplinary?

Pure inquiry of the kind to which Dave aspires strikes me as a concept not of pragmatic skepticism, but of pragmatic idealism, which tries to mediate between the fact that some things seem to be incapable of resolution except by brute acceptance and sinking into utter indeterminacy.  The best response I can come up with is some form of regulative process - reflective equilibrium (Rawls), reasoned argument, discourse (Habermas), or some such.

NORMATIVE, PRESCRIPTIVE CODA:  The world would be a better place, lawyers would be happier, human flourishing would be enhanced, and better and more ideas would be generated if the legal academy reflected on the community norms that suggest law review articles have normative, prescriptive codas.

Introducing Tablet

One of my favorite gateways to Jewish cultural and literary trends over the last few years has been via Nextbook, which I've linked to repeatedly here at Prawfs (and also on Facebook). Happily, Nextbook has been re-branded and re-launched as Tablet, edited by Alana Newhouse and assisted by a cast of wonderful, quirky, and thoughtful writers (including former Prawfs guest Jay Michaelson).  You can still find the amazing collection of books published by Nextbook over here, but for a daily fix, I highly recommend adding Tablet's blog, The Scroll, to your RSS feed. If this past week's content is a good predictor of future trajectories, we're in excellent shape. Here's a taste of some of what's been on the menu recently:

• Allison Hoffman's feature on casting Hasidic (looking) actors for Broadway and Hollywood 
•         Mark Oppenheimer's incisive analysis of where James von Brunn fits into the landscape of                 America antisemitism 
•         An essay by Adam Kirsch, one of our generation's most distinguished critics, on George Eliot 

Cord Blood Banking: Worth It?

As I indicated in Eduardo's post the other day about paternity leave, I'm thrilled and a bit nervous about the prospect of becoming a dad later this summer--blogging has thus fallen a bit as I try to take care of a number of loose ends both in and outside my professional life, e.g., buying a four door car (Accord or Odyssey? Camry or Siena? Hybrid or worry about the EMF radiation?)

One thing I figure the Prawfs crowd of readers has probably considered is the issue of preserving the baby's cord blood. What say y'all on whether it makes sense to do? I posted this quandary earlier on Facebook today and most of the six people or so who have responded (including the wife of my cousin/doctor) have said it's an enterprise basically aimed at preying upon anxious parents (who me?) at vulnerable times with very little prospect of benefit.  Apparently the academy of pediatricians agrees. What do you think? Disagree? Please feel free to post links in the comments to help nervous nellie parents to be. Thanks.  And feel free to weigh in on the respective car choices too...

The Asinine Evidence for Largely Irrelevant Inquiries: Kagan and SCOTUS

I just got back the other day from a quick trip to Israel, where I was teaching a mini-course on punishment and sentencing at Bar Ilan, so I haven't had a chance to do much substantive blogging lately. That said, in the morass of catch-up, I did come across a recent judicial politics posting on NRO (which I came across via ATL) that I though warranted some response. 

In her post, Wendy Long argues that Elena Kagan shouldn't be awarded any points by conservatives in the post-Souter confirmation process for her purported success in making HLS more hospitable to libertarians and conservatives. Why not? Because under Kagan's tenure as dean, only 3 "conservatives" were hired (Goldsmith, Manning, and Vermeule), and this represents only 7% of the hires made during Kagan's time as dean.

Long's argument is based on a simplistic understanding of law school hiring. 

If Long's inference is to be valid, one must assume that a dean of HLS (like other law schools) can simply appoint or not appoint persons to the faculty of her choosing.  But that assumption cannot be granted.  There's a sausage factory hiring process usually influenced if not controlled by an appointments committee. While the dean may appoint the chair and members of the committee, anyone familiar with academic politics knows it's unlikely that the chair will simply push through whichever candidates the dean may be excited about. Moreover, deans are usually leery of getting entrenched in appointments matters for fear of stepping on the toes of the committee and the faculty when they make their respective votes. Deciding membership on the faculty, after all, is often at the core of faculty governance. 

Two more points: first, if the number of conservatives or libertarians hired is thought relevant to gauge the open-mindedness or moderateness of a dean, then so too (if not equally in weight) would be the number of offers made by faculties and deans--one can't always lure every conservative away, even to a place like HLS. But Long gives no information on the number of offers made but rejected. Second, Long also provides no evidence or argument on the number of stellar "conservative" faculty who should have (or plausibly could have) been appointed to the HLS faculty. There might well be the same kind of "size of the pipeline" arguments in this context that are raised in other contexts. While there are many talented conservative and libertarian scholars, how many of them would be clearly "above the median" of the HLS faculty if the goal of the faculty is to improve itself? Long says nothing on this.

In sum, taking credit or blame for faculty hiring is a bit like Presidents taking too much credit or blame in the managing of the economy. Senators (or citizens) should not think that Kagan's potential merits as a Justice are diminished in any way on the grounds of the putatively small number of conservative faculty hired during her tenure as dean. If one is inclined to agree with the analysis above, or parts thereof, I think it makes sense to consider to what extent it makes sense to hold deans "responsible" or accountable for the numbers of women or minorities hired also. Problems in faculty hiring are almost invariably the product of a "they," not a she.

That's not to say Kagan's experience as HLS dean is utterly irrelevant. There may be some qualities that map well between dean and Justice.  Indeed, one fruitful line of inquiry would ask whether, for example, conservative and libertarian student groups, professors, and individual students reacted positively to Kagan's deanship? Did they feel they were listened to, treated fairly, and included in the relevant realms of decision making? Does the same hold true for women and minorities? If the answer to those questions is yes, those are marks of a good dean. And those signals of open-mindedness might indicate some of the liberal virtues we hope judges also exercise. But the achievements  of a good dean are not the same as the achievements or virtues that conduce to being a good Justice--a point that should make readers even more suspicious of Long's tendentious post.  

I'm glad I wasn't asked to moderate this panel discussion.

David Ignatius' moderating role in this Davos forum was not an easy one to perform. Without getting into the merits of the underlying debate topic, I'm curious to hear from those who have moderated difficult panels about how they tried to control things to avoid panelists from leaving in a huff...and I guess I'm also interested in hearing from those on panels that failed regarding why they thought the panels failed!

Just Wondering

What would your reaction be if you found out that some law professor had written and published two articles at the same time taking diametrically opposed positions on the same question or issue or set of problems?  In other words, to take a rather simple example, say a prawf decided to write one article all about how the Endangered Species Act was unconstitutional as applied to small populations of animals within a single state under the Commerce Clause and a second article about how the Act was completely constitutional under the Commerce Clause when applied to similar populations of animals.  Then he or she sent the articles off to different sets of law reviews and accepted publication offers for both of the articles.  The articles then came out at roughly the same time.  The articles made no reference to each other.  Would you think the author had acted unethically?  Would you think less of the author?  The arguments?  Why or why not?  (note: I don't plan on doing this myself, but I am thinking about having a character in a piece of fiction do it, and I just wonder what people in the academy and elsewhere would say about it).

On an entirely different note, I have a piece up at the Beacon Press blog Beacon Broadside about how I hate it when people send holiday cards with pictures of their kids on them but no pictures of themselves.  The original title was: "I Know Your Kids are Cute, But What Do You Look Like?"

Where's the "Zazz?"

I enjoyed Dave's post immensely, even if I'm not sure I've ever heard the word "zazz" before.  I would note that Dave doesn't distinguish too much between legal writing that has operative force in the real world, such as a court's order, and legal advocacy, such as a brief, and legal scholarship.  He notes the distinction, but I would make more of it.  There are reasonable limits to the degree to which writing in category one should engage in too much free-wheeling humor, particularly humor directed at the parties; although, as he notes, judges like Posner and Kozinski, who are already skilled writers, manage to add a good deal of liveliness to their writing without generally crossing the line.  Those judges show that you can write perfectly seriously without writing pompously -- that there's a difference between having real substance and putting on a show of having gravitas.

But Dave's argument that good humor has to be "not terribly serious," while "law is, at its core, a pretty serious endeavor," strikes me as incorrect on both sides of the equation.  While there is plenty of good light and absurd humor, it strikes me that great humor (and, in fairness, maybe there's a difference between good humor and great humor) should be very serious indeed, in the sense that it should strike at the heart of our own worst and weakest moments and those of others, and flirt with some very serious lines -- not for the sake of being "transgressive," and certainly not because doing so is conducive to social change, or any such rot, but because that's where the best humor lies. 

Contrariwise, I am not sure I agree with the proposition that law in general, at least if you're talking about academic legal writing, is an especially serious endeavor.  Is it, really?  Even if it were, that has nothing do do with what kind of wit you can bring to the enterprise.  It's possible to take an enterprise perfectly seriously, invest all your heart and all your intellectual rigor in it, and still wear your work, and your sense of self, lightly.  Indeed, if you love your work and take joy in it, I should think it would often be shot through with a sense of gentleness, grace, and bemusement -- not least self-bemusement. 

 

 

Of course, that doesn't excuse sloppy, boring, or out-of-touch pop culture references or bad jokes; maybe it's thus safer to be "weighty" than light. But I tend to think of the absence of genuine lightness and humor in legal academic writing as one more symptom of the legal academy's endless crisis of authority (maybe the human condition's endless crisis of authority; I'm not sure, but I'll start with a narrower sample just to be safe). Writing with an intentional air of gravity isn't that different from using unnecessary big words in a manuscript, or making the manuscript look all fancy and law review-ish, or making extravagant claims about the novelty of your work, or using fancy letterhead, or acting as if you know more than you do, or insisting on being called "Doctor" even though you're a mere academic (although I trust that no law professors indulge in that particular petty sin). It's just one more means of asserting, claiming, or pretending to authority in an environment in which the criteria for substantive evaluation or so contested, and the judges of those criteria often so unqualified, that one may be better off, and get further, by looking "authoritative" than by merely making good arguments. That's true both in the sense that you may get more validation from others by acting "serious," and in the sense that you may feel better about yourself if you can convince yourself that you are a "serious" person engaged in "serious" work.

Is and Ought's Excellent Adventure (Part 2): Kent Greenfield on Mukasey's BC Speech

A couple weeks ago, Kent Greenfield (Boston College, left) asked me to link his Huffington Post op-ed on Attorney General Michael Mukasey's commencement address at Boston College this year.  At the risk of inviting another "train wreck" - Rick's posts are the gift that keeps giving - it turns out that the gist of Kent's observation merits being included as Part 2 in this series.

Here's Kent's comment:

[The Attorney General] urged our graduates to learn to filter out their own moral and political views when they "do law," so they can "advise clients that the law permits them to take actions that you may find imprudent, or even wrong."

So the message of the Attorney General of the United States to the law graduates of today: be a technocrat. Once the law is articulated, your job is done.

Mukasey does a disservice when he implies that the law is a simple, straightforward, technical enterprise. Of course there are easy legal questions (which include, by the way, that waterboarding is torture). But as our students learn in the first week of law school, the most important questions are unlikely to have answers that spring fully formed from some text. What good lawyering requires is not just a mining of a range of authorities to determine the best reading of various texts (though even this bare minimum was apparently not done in the authoring of the torture memo). Also necessary is an honest acknowledgment that when gaps are to be filled, there is no neutral way to fill them that avoids the need for political, philosophical, or moral justification.

Once again, "is" butts up against "ought."The interesting twist here is that not to decide is to decide.  By acting, in Kent's words, as a technocrat, one effectively concludes that whatever "is" is, it's the same as "ought.  What follows the jump is far less down-to-earth than before, and like Rick, I welcome anybody who wants to check it for philosophical malpractice.

Let's return to recitation of the Hume dictum for a minute.  Hume's concern was not only a reading of the "is" into the "ought," but the other way around:  suggesting something was an empirical fact when it was simply the speaker's reasoned derivation, rather than observation in experience, of what ought to be. 

As moral good and evil belong only to the actions of the mind, and are deriv'd from our situation with regard to external objects, the relations, from which these moral distinctions arise, must lie only betwixt internal actions, and external objects, and must not be applicable either to internal actions, compared among themselves, or to external objects, when placed in opposition to other external objects.

Indeed, in Hume's view, not only is there no reasoned moral connection between external events, "there is no connexion of cause and effect, such as this is suppos'd to be, which is discoverable otherwise than by experience, and of which we can pretend to have any security by the simple consideration of the objects."

Kant reacted to Hume by claiming there was a priori synthetic truth, like causation, beyond mere experience, and that reason was capable of deriving moral imperatives, and particularly categorical imperatives, that were universal.  Those are "ought," not "is" statements, and they are not assertions of truth or falsity about objects.  Hume, on the other hand, rejected the notion that reason could derive moral ends (remember, it's just slave to the passions).  So he was making the point that whatever the source of the "ought" might be (to him, custom, not reason), it certainly did not constitute empirical fact.

The problem with Hume leads, in my mind, to Mukasey's thesis.  Hume makes it clear saying "it ought to be so" doesn't make it so.  He leaves us, however, wandering on the source of the "ought."  So the question is whether enough information about the "is" will lead us to the "ought."  Mukasey's approach, for lawyers at least, is to punt.  Don't worry about the "ought;" tell your clients what the law is (if that's possible, to Kent's point), and let them make the decision.  Personally, I'd never hire a lawyer to advise business clients who took that approach, but that's another matter.

I'm an old veteran of the data-intuition wars within the corporation.  After years of command-and-control, the quality movement had the insight that many decisions were not based on data, but on corporate executives' intuition, much of which proved to be wrong.  So the pendulum swung mightily between the mid-1980s and the turn of the millennium from what we might call corporate rationalism (making decisions on logic and reason) to corporate empiricism (making decisions based on fact).  (Whether that "fact" is really fact - Hilary Putnam's critique of the fact/value distinction which Rick refers to in the most recent post - will be the subject of Part III.)   I can remember many meetings with the Six Sigma and "operational excellence" gurus, and my suggesting to them that collecting data was all goodness, but inevitably we would get to a point where the question what we ought to do would again require a leap from what we established as the inductive rule within the data to a choice of action.

My friend and co-blogger Bill Henderson and I had an interesting public (albeit buried) exchange on this point a few weeks ago.  Bill found a talk given by Charles Munger (founder of the Munger, Tolles law firm and Vice Chairman of Berkshire Hathaway) entitled "The Causes of Human Misjudgment."  The substance was a summary of behavioral economic insights (notably those of Kahneman and Tversky) into what we might call "cognitive error."  True to his open-mindedness and hunger to learn, Bill said that he was interested in applied behavioral economics as a means of "honing [his] own decisionmaking processes to eliminate bias and susceptibility to manipulation."

It's a noble end, but I sounded a word of  caution in thinking that the process of understanding the empirical fact of one's biases would lead to better decisions.  It is far easier to do an assessment of somebody else's tendencies than your own. The problem, of course, in assessing your own bias and behavioral tendencies is the infinitive regress as well as the self-recursiveness of the exercise. In short, you assess your own behavior, and decide you have the tendency, and correct it. But was your assessment affected by the tendency (or another one)? And was your assessment of the assessment so affected? And so on.

The empirical dream is to unite "is" and "ought" with a complete understanding of the "is."  Kant didn't think that was possible.  Your reason wants to follow the infinite regress to the infinite end, and to see the world objectively. It is unrestrained by the empirical world. So reason is capable of positing (or playing) God - that Being that can be both subjective and wholly objective at the same time.

In short, Mukasey's view is unsatisfying to those of us who care about the "ought" beyond the positive law, because it simply leaves out any job for the lawyer other than, as Kent says, the technical job of relating what the law is or might be.  But it's equally illusory to think that merely a better understanding of the law, or indeed, any set of empirical data of the law is going to overcome the objective-subjective divide, and tell us how to choose among alternative actions.  The inspiring thing about Bill's vision (in contradistinction to Mukasey's) lies in a slight corruption of Robert Louis Stevenson's dictum that it is better to travel hopefully than to arrive. In this regard, it is impossible to arrive on data alone, but it's no reason not to travel hopefully nevertheless.

An Update From Professor Steve Gey

The other day Paul wrote about the West Virginia Law Review's moving tribute and issue in honor of my colleague, the con law scholar Steve Gey, who has sadly been living with Lou Gehrig's disease (ALS) for the last year.  Some of you remember my blogging about a a group of FSU law students, alumni, faculty and staff who have been busy this spring securing sponsorships and training for a triathlon (the "Tri-for-Gey") to raise funds for ALS research.  (My wife Wendi has raised over $4400. Please consider donating generously in Steve's honor to her efforts here.)

Many people are wondering: How exactly is Professor Gey doing anyway?

The answer, which Steve has penned in his inimitable way for the legions of students and colleagues inquiring, appears with his permission below the fold. Let me give you notice that while Steve's answer to this question is at times humorous, the news is difficult to read.
 

Since I was diagnosed with ALS a little over a year ago, I have been the grateful
recipient of hundreds, if not thousands of expressions of goodwill from friends,
colleagues, former colleagues, and especially present and former students.
Unfortunately, I have not had the opportunity to respond personally to most of these
messages. I'm afraid my little disease has affected my efficiency more than I would ever
have imagined. I know that you all think that I speak too quickly, but I'm finding that my
voice-recognition software doesn't even come close to keeping up with my old typing
skills. Thus, your messages have been piling up, unanswered. It's getting downright
embarrassing. So when our fearless leader Kristina [Klein, FSU alum] suggested that I compose a short update to send to everyone on the growing Tri-for-Gey mailing list, it seemed like the
perfect opportunity to at least let you all know as a group how things are going. This
does not, by the way, substitute for the personal responses that I still intend to send to
everyone who has sent me messages during the last year. At the moment I'm still trying
to teach, and that pretty much takes all of my time and energy. One day soon, though, the
voice will finally fail and I will have lots of time on my hands. At that point I promise to
return to the stack of e-mails, cards, and letters. Until then. . . .

I suppose we should get the bad news out of the way first. For the first few
months after the diagnosis, I was able to more or less convince myself that I had
everything under control. My hands and arms slowly deteriorated, and I relinquished any
hope of winning a marathon, but in the early months I managed to work around these
minor disabilities and kept going pretty much at my usual pace. Things started to get
worse in the early fall of last year, especially when I lost the ability to drive.
Nevertheless, once I got used to riding with the dogs in the back of [FSU Prof] Rob Atkinson's truck,
even that loss became manageable. In the last two months, however, things have started
going downhill much more precipitously. The disease has now migrated from my arms
and hands into my lungs and throat. Swallowing is getting difficult, and breathing even
more so. On my last pulmonology exam, some of the functions of my lungs are down to
about 25% of normal. The breathing problems have also affected my voice. Although I
do not yet have the slurred speech that is common once ALS creeps into the bulbar
region, my voice is now almost always hoarse, shallow, and muted. The disease is
accomplishing what none of you could: it may soon actually shut me up. On top of
everything else, my hands and arms have now become almost totally worthless. Not only
do the students have to carry my books to class, they also have to turn the pages for me. I
can no longer shower or dress myself, and feeding myself is a comedy routine. I'm the
only person in the world who can have a food fight with himself. Here's the clincher:
over the last month I've lost 10 pounds, which makes my total weight loss during the last
year approximately 30 pounds. I've never exactly been plump, but if this keeps up I
won't get the chance to die, because I will just float away.

So enough of that. Now the good news. First, I'm still here. I know that won't
sound like much of a victory to most of you, but to me it's a roaring success when I read
the obituaries in the morning and I'm not in there. Also, I'm still teaching. In fact, right
now I'm teaching a full load, and I've had the Dean put me on the list to teach at least one
class next year. Hope springs eternal. I've also done my usual bunch of speeches and
symposiums in various cities this year, although I'm afraid that's over now. Traveling is
just too hard, so I'm just going to have to learn to enjoy the wonders of Tallahassee.
Where is the medical marijuana when you need it? I'm also still writing quite a lot, and
could write a lot more if I could just figure out how to teach my voice-activated software
to type "Justice Scalia" instead of "Justice Oh My Silly." (On the other hand, maybe the
software is smarter than I’m willing to acknowledge.) And finally, I'm still walking, even
if I am a little shaky. So maybe in several respects I have already beaten the odds.

The basic plan now is the same as it was a year ago: figure out how to deal with
an ever-diminishing number of body parts, until some doctor trips over a cure to ALS
while trying to develop a new and improved version of Rogaine. There have been brief
moments of hope on the medical front during the last year. Indeed, last month I applied
to get into a Phase IIb clinical trial of a drug called Arimoclomol. The company
developing the drug has had great success in the earlier phases of clinical trials, and one
of my legions of doctors expressed the opinion that this is the most excited that she had
been about an ALS drug in many years. In what has become a typical pattern, one month
into the enrollment period for the clinical trial, the FDA pulled the plug on the trial until
the company can submit additional animal toxicity studies to back up its claims about the
drug's safety. One step forward, two steps back. No other drugs are even close to being
approved for ALS, and of course major-league federally funded stem cell research will be
stymied for another year until you-know-who leaves office. In any event, my doctors at
Emory told me this week that my vitals are below the level necessary to get into the
Arimoclomol trial, anyway.

Right now, the doctors are focusing on trying to get weight on my bones and
trying to get more oxygen into my lungs. So I've been told to eat everything in sight, and
the doctors have prescribed for me a new breathing machine. They have also put me on
Rilutek, which is currently the only drug approved by the FDA for ALS patients. The
drug basically extends life a couple of months by decreasing the release of glutamate and
thereby reducing the damage to motor neurons. The doctors are also going to put me on
lithium, of all things. Just last week, my buddies at the National Academy of Sciences
published in this month's Proceedings a small Italian study indicating that lithium
completely halted the progression of ALS in a group of 16 patients in hospital near Pisa.
It's probably too good to be true, but maybe the lithium will at least make me a little bit
less crazy (!). I should add, though, that overall my doctors are not optimistic. They
have suggested that I consider whether I want to go on a ventilator as my lungs continue
to deteriorate, and also that I begin to think about whether I want to go into hospice. I
don't want to bum everybody out, but you should all be aware that there is at least an
outside possibility that this is my last Tri-for-Gey.

All in all, like the other unlucky souls who have been dealt the ALS card, the only
thing I really have going for me is blind faith, which is another way of describing
unrelenting, irrational stubbornness. If viewed objectively, given my deterioration during
the last year, it's probably safe to say that I'm on track to fulfill the usual prognosis for all
ALS patients, which basically gives me the life expectancy of a hummingbird. I've just
decided to act as if that's not the reality, and I'm happy to say that all of you are helping
me perpetuate my self-delusion. If you crazy people are still willing to get up at the crack
of dawn and jump in a frigid lake, and then run and ride yourselves silly, then I may as
well try to stick around to see what you all look like in wetsuits. So hang in there during
your relentless training. I'm with you in spirit. If we play our cards right, and get a little
lucky, you will all reach your finish line in little over a month, and I won't reach my
finish line for many, many years.

The writing is on the wall

Despite my appreciation for the merits of both candidates for the Dems, my sense is that Obama will win, and win handily, tomorrow and later in November. Here's why. Rick, how can McCain, who admittedly is the best Republican the Dems could hope for in a non-cynical world, compete against this dynamism?

Occasions of learning

I teach English; which is to say, I help students work toward answers while trying to avoid asking the questions. 

I'm interested this month, as a guest blogger, in asking whether the Socratic mode of legal education helps or hurts budding lawyers, morally speaking.  So I'll be writing about pedagogy, but at the same time I'll be writing about pedantry:  the attitude that encourages litigators, emulating their professors, to ask only questions to which they already know the answers, and to insist upon the completeness and precision of answers rather than the process of answering.

This line of discussion isn't meant to be an advocacy of mediation, or 'encounter sessions,' or any such nonsense; nor is it even to push for the value of Truth and Reconciliation Commissions (though I think that's what the DOJ is going to need).  I think there's no doubt that the antagonistic and highly mannered airing of evidence and testimony -- which is to say, courtroom drama -- works much better than any known alternatives as a way of handling disputes and civilizing the task of getting to an outcome when viewpoints diverge widely. 

But surely, it seems to me, part of the deliberative excellence of the courtroom scenario is in precisely what is missing from the law-school classroom:  the presence of the jury.  They are present and paying close attention, not just for the answering of questions but also for the asking.  What does it take to give that answer? the jury asks about each witness response; but also, What does it take to ask that question?  What moral posture is being occupied by the cross-examining lawyer?  Like the audience in other kinds of drama, the jury has the power to decide how it feels not just about what is said but also about how it is elicited.

I've been teaching at Phillips Exeter Academy, and every table here has exactly twelve kids.  No one is the foreman.   And the pedagogy centers on the belief that students' social identity is their best motive for learning.  Teachers are urged not to set the agenda:  this ethos puts the students in charge of their own time, which they can collectively waste or make fruitful.  Happily, the culture has evolved a long way:  there is nothing cool here about being unprepared for class.  There are a few 'gunners,' but most kids come into the room with some questions about the text and the willingness to listen.  They react to each other not as debaters but as social individuals -- the girl always out of dress code, the guy who affects a garish tie over a Hawaiian golf shirt every day, the Gay-Straight Alliance president, the linebacker, the lone Republican, the girl who laughs a lot and has ideas but never quotes the text.  Credibility is constantly in flux, and disagreement is rarely the mode of progress.

Is this transposition of social life into the intellectual sphere much different from the jury system -- with its implicit belief that jurors' social instincts are their best guidelines as to what the law requires them to conclude?  Why else do we as a society care that jurors should be a defendant's PEERS?

In passing, in this first brief post, let me note how different the juror's moral posture is from that of the law professor.  The juror wants to know how to decide among the parties; her choice is among people.  The professor wants to develop the most fruitful lines of questioning; her choice is among vectors.  Improvising, grabbing hold of that which is most suggestive or most contentious, swinging from thought to thought and then to an opposite thought, the professor blazes a new trail through familiar terrain for each group of students; it is exhilarating work, Tarzan stuff.  But here at the Academy I've been taught (for example, by the great seminar teacher Nita Pettigrew) that in wielding even the smallest machete the teacher sets herself apart and adds extra meanings.  To blaze the trail, even when others seem to choosing at each decision point, is to claim a very certain kind of power.

Of this power one should be very wary, and ambivalent.  On the one hand, there is no doubt that to ask the questions is to control the situation; hence the term 'examination,' used both in court and in class.  At the same time, though, Kierkegaard said that "the ultimate idea in all questioning is that the person asked must himself possess the truth and acquire it by himself."  Hence the law professor is by turns the bully and the naive Columbo-figure. "Let me just mention one more thing," he says, and the student finds a light bulb in her head she didn't know was plugged in.

I'll never forget a certain session of a class in 'higher-ed and the law,' at a time when I was considering a career in administration.  The question at hand was whether a student with a heart condition should be allowed to play varsity basketball, fully aware of and accepting his three percent chance of dying on the court in the next four years.  I was the only one who said Yes, and the professor, the Harvard General Counsel, asked me slyly, with an innocent tone, "And then what is learned by the fifteen thousand students in the stands on the night that he is carried off with a sheet over his face?"

There was no opportunity for me to answer this question in a thoughtful way; it carried its own answer.  But in such rhetorical questions, of the kind that litigators master, there is an extraordinary assumption:  the professor says, You are learning the law.  But I am not telling you anything you don't already know.  Your moral intuitions are the main point, and in learning the law you learn to answer the questions the world puts to you, in your own way.

I am still not sure that those fifteen thousand kids wouldn't learn something beautiful on that occasion.  The fifty of us, that night at the Ed School, learned something useful, but it's a lesson I think I'd rather forget.

Before I sign off on day one, then, two examples.  One:  a postadolescent of whom I once read was badly injured, allegedly, by her boyfriend on a spring-break trip.  As she emerged from anesthesia in a strange town she encountered his lawyer, who asked, Do you want him to go to jail?  The answer of course, was no, and she signed an affidavit exonerating him.   It was several weeks before she came to terms with the fact that she was scared of him.  Two:   the teacher asks at the English table, What is at issue in this debate Frank and Jane are having?  Are they really disagreeing?  And someone answers, They're just arguing about which gender is better than the other.  The conversation is fully derailed -- but it goes to surprising places.

These are two different models of learning:  one, the well-paid lawyer's; the other, the schoolteacher's.  Think Arnie Becker and Ichabod Crane.  Which one gets to the bottom of things?  I propose to keep asking that question in various ways this month, and hope that in doing so I'm not too obviously biased toward societal (superficial) rather than professional (esoteric) values.

Prof. Markel and I used to live in a community whose motto was Occasionem Cognosce:  Know the occasion.  In the seal, a fist grabs a handful of arrows, and the implication is clear.  Seize the day.  To know is to do.  And surely that is for the cognoscenti.  But there are other kinds of knowing, less Platonically gnostic and more paradoxical, and I wonder if we couldn't use a little Kierkegaard to nudge us away, just a smidge, from the Socratic -- and toward a different kind of faith, more passive but more patient, in collective modes of understanding.

I'm reminded here of a game I play in class sometimes, in which each kid has to take on a certain role -- the Interrupter, the Disagreer, the Swerver.  There's always one kid who is instructed to finish every comment by trailing off into the sentence, "I don't know -- does that make any sense?"  No one ever notices this tic, and even the boldest kids are able to fit it in nonchalantly, as if negating their comment is a perfectly legitimate way to conclude it.  I'm barely resisting the temptation here to ask whether the above makes any sense, and will successfully resist it only by pointing out that if I asked that question I would only be fishing for compliments or encouragement, and not really acknowledging how complex are the issues I am raising.

Jim von der Heydt

On Civic Slacking

I watched part of yesterday's Democratic debate and, somewhat like Wes, I came away thinking that the time I spent watching was lost forever, and for no purpose.  But hey, it's led to a blog post.

It got me thinking more broadly about the duties we are supposed to face as part of a republic, and how much I sympathize with the people who want none of it.  My experience has been that since grade school we're been taught by social-studies teachers and similar goody-two-shoes types that it's virtuous to read the newspapers and generally to be informed about world affairs, vote, debate public issues, and watch candidates.

Bah, humbug!  I can't imagine anyone taking any useful information out of that debate (at least the part I saw), just as I find it difficult to take useful information from campaign commercials.  Voting, of course, provides virtually no benefit to the voter except the psychological one resulting, in my estimation, from the years we've been told that voting is a virtuous thing.  And for the most part a single person whose job is unconnected to public affairs is unlikely to achieve anything by becoming politically aware.  Why not focus one's family and career?

So hurray for the civic slacker.  Ethan is sure to disagree, I know, but I can't blame the person who watches soap operas instead of listening to politicians take 90 minutes to say nothing.  Or was yesterday just a particularly bad example?

The New Formalism Panel

It was a treat merely to be on a roundtable panel with Larry Solum, Randy Barnett, Ekow Yankah, and our moderator, Dennis Patterson, as I've mentioned, to discuss the new formalism.

Larry kicked off with a short summary of what the new formalism was and was not.  Randy followed with a discussion why he began as a contextualist, and, like Jack Balkin, had come to view himself as adopting a "new formalism" (though he was careful to state that it was not how he defined himself - I paraphrase roughly "I don't think I've ever though of myself as 'a new formalist'").  I followed with a discussion of the neo-formalism that Schwartz and Scott adopted in the private law of business contract interpretation, and Ekow closed the panelists' short summaries with a critique of formalism as giving undue weight to the written text, particularly in view of segments of society who may have no ability to influence the drafting of the text.  We then proceed to about an hour of vigorous discussion in which the not-overwhelming-but-not-too-shabby-for-a-panel-in-the-second -to-last-time-slot-on-the-last-day audience participated, moderated pugnaciously by Dennis Patterson.

This was constitutional high theory at its finest, and nobody asked a question or made a comment about textualism or contextualism in contract law.  In fact, about five minutes into the questions, I passed Larry a note saying I would give him $100 if there were a question about my segment, and I never once even came close to worrying about taking out my wallet.

Hmm.  If somebody had, was my promise to Larry enforceable?

Anyway, I've decided to post a redacted form of my comments below the fold.

Here are the comments:

My jumping off point about new formalism is a comment Larry Solum made in the earlier session on Brian Tamanaha’s Law as Means to an End.

We grapple with an antinomy between a sense of permanence or immanence or determinacy in the legal rules by which our social relationships are regulated or constituted, on one hand, and our manipulation of those rules to achieve individual purposes on the other – in a word, instrumentalism. 

In its broadest jurisprudential articulation, this immanence shows up as “justice” or “the rule of law.” The intellectual history of formalism is well-known – the systematic, self-contained, scientific, axiomatic, purportedly deductive textualism of Langdell and Williston gives rise to realism, and its contrasting contextualism.   I think Willistonian formalism in contract law was intended to achieve an immanent norm – that being what my European sociology friends would call juridical justice, or the treatment of like cases alike.   And a student of Luhmann would note the systemic paradox.   Each opposing parties within the system argues to the adjudicator that its view, and its view alone, serves the interest of justice, here being consistency with prior case law.   It is like each side in a football game, or in war, invoking God on its side.

So we would begin by noting the strong explanatory power of realism or contextualism.   Private law does NOT pose the antinomy of an immanent normative order with instrumentalism toward our individual purposes, because in the ex post resolution of conflict between private parties, all is instrumental.   The issue is merely whether we will be textual or contextual in our instrumentalism.

But there is a new formalism proposed for contract law, and my claim is that it is really a sign of the persistence of teleology, of the imputation of purposiveness in nature and in the analysis of social systems. In their 2003 Yale Law Journal article "Contract Theory and the Limits of Contract Law,” Alan Schwartz and Robert Scott made the argument, at least for business contracts, that business parties would choose Willistonian formalism over UCC-style contextualism as the mode of contract interpretation.   The argument builds from the usual normative assumption that society is better off with legal rules that maximize efficiency in economic terms – all other things being equal (and they always are), more surplus is better than less surplus, regardless how the parties divide it up.   In the long run, interpretive mistakes even out, using plain meaning is cheaper, so parties would prefer plain meaning interpretation on the assumption that courts get it right most of the time. This move is not surprising, given its grounding in the social science of economics, and the aspiration of social science to uncover and explain causal relationships in social science with rigor analogous to that found in the physical sciences. 

But it seems to me we have the old antinomy now in a different expression, and once again it arises from the opposition of subjective interest and objective norms.   For in Schwartz and Scott, there are objective norms.   The key conflation of the subjective and the objective occurs quickly, implicitly, and effectively because it makes the fundamental assumption that “there is a correct answer” – this being the mutual intention of the parties and it is the court’s obligation to find it.   And I suggest “the mutual intention of the parties” is to contract law what “the rule of law” or “justice” is to law generally.    Say that to a contract lawyer, we nod our heads “uh huh,” and move on.    Schwartz and Scott assume that the parties' interest is in maximizing total surplus from the transaction which they will then divide by setting the price.   Setting the price is just "strategic behavior" and merits no discussion.  I have negotiated lots of deals, and I can't remember ever thinking about total surplus at all, much less first.   But if I had a choice between a smaller total surplus and grabbing more (in absolute terms) of a smaller surplus, I know where I would go.

It seems to me the world works from the first-person not the third-person perspective.    Only economists and lawyers think they can step out of themselves and see the world objectively, and folk wisdom ("the lawyer who represents herself has a fool for a client") suggests that it is a mistake even for lawyers.

I propose a different antinomy, not formalism versus instrumentalism, but in some borrowed terms, between aboutness and thingness.    I go back to my earlier characterization of “the rules by which our social relationships are regulated or constituted” and offer these comments and questions:

• Instead of focusing merely on rule-following (Fred Schauer’s work), we focus on the distinction between aboutness and thingness of regulative and constitutive rules.

• We ask, on one hand, whether the contract is a reflection or shadow of the transaction, a regulation of the transaction; in short, about the transaction.

• We ask, on the other hand, whether the contract is constitutive of the transaction.  Is the contract a thing in itself?

• And now we call upon a distinction in debates over the philosophy of social science – that being causal explanation versus understanding, or the exercise of hermeneutics.

• We can uncover and explain things.  This bespeaks:

      - Casual explanations
      - Algorithmic functions
      - Mathematical models
      - Laws (of nature, not the sovereign)

Whether you are a Langdellian scientist or a practitioner of the dismal science, it is hardly a leap to attribute thingness in your role as an objective third party observer of the object of study.

And things inhere in the order of nature.    It is the teleology that underlies science.   But it is not a given that the application of scientific method to ourselves works, any more than the ascription of surplus maximizing in individual cases, simply because overall it is a useful model in the aggregate. We are subjects within a system, considering ourselves.  And the alternative view of social science is not that we look for causal laws, but that we understand or make sense of our place in the world.   This is “hermeneutics.”  I contend this is what the parties are doing when they make the contract – they understand, they make sense – the contract is about their relationship.    The purposes are those of the parties, and may or may not align to form an immanent “mutual intention.”  The objectivity inherent in ex post litigation yields thingness, formalism, purposiveness in the contract itself.    We search for that immanent “correct answer” of mutual intention, even though, as I have written, mutual intention is most often an illusion.

I conclude by noting Tom Grey’s ultimate conclusion about “the new formalism”:    it is far more pragmatic than its most strident proponents would let on.    I contend that Judge Posner, a theorist who nevertheless must decide cases, foregoes contracts as things in favor of a common sense pragmatism (whether or not it is well-informed) that is ultimately hermeneutic and not scientific.  Why?    Perhaps because the nature of an antinomy is that it cannot be resolved.

Homeless

There is a multi-session program on Niklas Luhmann taking place here in Berlin during the Law & Society meeting.  Yesterday afternoon I attended a roundtable that was one of the later segments.   Glancing around the room, surreptitiously checking out name tags, and listening to accents during the Q&A, it was pretty clear I was one of the few Americans, if not the only one, in the room.

Here's some half-assed speculation on intellectual history.  Over the last hundred years, Dewey, Holmes, pragmatism, legal realism, critical legal studies, and law and economics sucked all the air out of the room, so to speak, when it came to reacting to a rationalist or quasi-rationalist foundationalism on our side of the Atlantic.  Luhmann is also a reaction to rationalism, but with a distinctly European acceptance of paradox.  Which raises the question:  if you are an American and somewhat obsessed by paradox in all its forms, are you homeless?

More below the fold.

First, a plug for the presenters, Hans-Georg Moeller, author of Luhmann Explained:  From Soul to Systems, and Michael King and Chris Thornhill, co-authors of Niklas Luhmann's Theory of Politics and Law.

Michael's contribution to the roundtable was subtitled "Why Academic Lawyers Shouldn't Read Luhmann," which was understandable after Hans-Georg's discussion of Luhmann's take on the fundamental paradox of justice.  Justice is a "contingency formula."  What that means is that within a system like law, justice serves as a foundational value, even though justice is incapable of directing a particular legal result in any particular case.  From outside the system, an observer would say that justice is in fact highly contingent, but the internal system would collapse if the actors came to believe that it was not.  This is in fact another way of looking at the antinomy of formalism and instrumentalism Larry Solum highlighted in an earlier session on Brian Tamanaha's Law as Means to an End.  Or, as I suggested in a comment at the end of the Luhmann session, the paradox in real world litigation is that each party invokes justice as argument in service of instrumental goals, as though God could really be on each side in a football game (or a war).  Within the autopoietic (or closed or self-referential) system of law, justice appears as consistency among like cases, not necessarily congruence with fundamental human, moral, or religious values.

So, says Michael, Luhmann is anathema to academic lawyers of all stripes.  To those focusing purely on doctrine, Luhmann would be saying:  "Your search for consistency within the system is ultimately futile.  You believe you can operate within the system to improve it, but that is merely an illusion required to allow your system to continue qua system.  All you are really doing is restating the foundational principle of justice (or whatever) in another way."  To the "morality police" concerned with assuring that legal justice equates with moral justice, the connection (in the traditional of legal positivism) does not exist.  What you see are fundamental is a contingency formula by which what you think is fixed is really contingent.  And to "law and..." scholars who believe they stand outside the system and assess it objectively, you may not recognize the paradoxical nature of your own position.

To return to Larry's articulation of the formalism-instrumentalism antinomy, were I a Luhmannite (and perhaps I am), I would interpret this last in the following way.  We encounter the paradox as an empirical matter.  As legal philosophers who have become conscious of the paradox, we have three choices.  One, we can engage the paradox even if it is incapable of resolution.  (This is what I think Luhmann does.  And that appeals to my Kantian proclivities).  Two, we can make the conscious decision to ignore the metaphysics of the paradox.  That means we are either pragmatists or virtue theorists.  Or three, we can try to resolve the paradox by adopting some form of normative or theoretical foundation with which law must accord (and here, ironically, we can place Charles Fried on contract as promise, law and economics generally, and Dworkin).  Or we can take some combination of the three (for example, Richard Posner, who combines choices two and three).

But, I wonder, is someone operating in the American intellectual tradition, but who opts for choice one, homeless?

The Arena

With some acknowledgment of the gender references that are part of its time, and on the eve of many people leaving to present their ideas at the LSA meeting in Berlin, I offer this famous quote from Theodore Roosevelt's April 23, 1910 speech at the Sorbonne:

It is not the critic who counts, nor the man who points how the strong man stumbled or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena; whose face is marred by dust and sweat and blood; who strives valiantly...who knows the great enthusiasms, the great devotions, and spends himself in a worthy cause; who, at best, knows the triumph of high achievement; and who, at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who know neither victory nor defeat.

Apart from the message, what a wonderful way of aligning alliteration, of putting particular parallelisms precisely, with a creative cadence as the consequence.  Onward onomatopoeia!

The Place of Artists' Endeavors in a University

One of the unexpected joys of service to the university is that I get to attend meetings of the "XYZ" committee, which addresses various issues of significance to quality and governance standards across the university. Recently, a particularly fascinating question arose, but I'll leave the names of the players out, since I'm more interested in thinking about this issue in the abstract and seeing where the different arguments go.

Here's the question: should graduate students in a research university get to sequester or limit access to their dissertations so they can privately reap the benefits of future publication with a for-profit publisher? Those of you enjoying the discussion Bruce led last week regarding SwapNotes might want to weigh in.

In the sciences context, my sense is that issues over patents are worked out ex ante through contract and universities are obligated to share the fruits of research especially when such research is funded with public money. Thus, graduate students working in university labs probably have to share patents' revenue with the university but practices may vary by agreement. In the social sciences and humanities, professors tend to enjoy the "teacher" exception to copyright's work for hire doctrine that Bruce and Michael Froomkin talk about in the comments to Bruce's post. My sense is that such an exception enjoys an uncertain status in law today, but that express contracts between faculty and universities would govern the issue, and that copyright for those works is not a property right invariably enjoyed by faculty, though in the absence of an asserted right by the university, it probably belongs to the professors. (I checked with Bruce and his sense was that as a matter of practice copyright tends to belong to the professors, but the law was a bit unclear. There may be an implied license for the university in the absence of a contractual provision to the contrary.)

So what's the deal with graduate (or less relevantly, undergraduate) students? The tough issue arises when universities say: we want a digital copy of that dissertation so the fruits of your state-subsidized research can be shared with the world. In that situation, the university might be impinging on the ability of graduate students to sign contracts with commercial publishers, who want exclusive distribution rights and would view the publication of a novel to be pretty worthless as an investment if it's substantially available online via google and a library's electronic database.

Thinking this through: Graduate students might not enjoy the "teacher exemption" to the work for hire doctrine if graduate students are paid employees of the university because they are not yet full-fledged "teachers." On the other hand, unlike professors, grad students are often paid principally to teach, not to research. This is pretty tricky, since it would suggest that grad students should then benefit from a "teacher" exception...

My sense is that in the absence of a contractual provision to the contrary, students will own the copyright in their works, even if they are also employed by the university or if they are producing such a work for credit.
In most cases graduate students have not signed away their copyright interests to the school, though I wouldn't be surprised if public universities (and for the purpose of this post I'm interested only in public universities) do give notice to graduate students that a dissertation must be archived at the university's library. If they do give such notice, that might create an implied license and the question is what is the scope of that license, and what ought it to be? Depending on the context, students might have already agreed to that in the particular context of university handbooks that tell students they must lodge copies of their work with the library for purpose of graduation.

The concern raised above about publishers seeking more rights is especially salient for students graduating with advanced degrees from creative arts programs, where their dissertation actually is the production of creative writing, music, or art. One major concern of imposing a library's right to reproduce the dissertation electronically is a collective action issue: if one school insists that the library of that school creates and makes available a digital file of poetry or a novel, then students will go to schools where that requirement doesn't exist. Unless all the creative arts programs abided by the same rule, students would be drawn to places where they can ply their craft in subsidized domains but then reap all the private benefits.

Why might universities seek such digital reproduction rights? Perhaps out of fidelity to the idea that if the state's taxpayers are subsidizing the research, they and the scholarly community should enjoy (free? easy? immediate?) access to that research when submitted as part of a PhD or Master's degree. Of course, in the case of students in the performing or creative arts, the dissertations are not exactly "research." Thus, to save the creative arts students from this otherwise plausibly reasonable practice of promulgating knowledge, one might try (however perilously and controversially) to distinguish between departments whose dissertations are "knowledge" and those whose departments are not in the business of producing conventional knowledge, but rather "arts." Thus, English PhD's about Shakespeare would be promulgated, but if Shakespeare himself is in your creative writing department, then he can sequester his dissertation until it's been published. The downside of such a rule is that it also hurts those budding Shakespeare scholars trying to get Norton or FSG (or HUP/CUP/OUP) to publish their books too. Is this distinction tenable? Desirable? If it is both tenable and desirable, does it say anything about what universities should be in the business of cultivating or producing?

Finally, here's a possible problem: if public universities don't assert any dissemination norms beyond lodging a paper copy of the dissertation with the university library, what rights or interests can/ought the taxpayers assert if Billy Shakespeare decides to burn his dissertation, after lodging his one paper copy in the archive of the library? Do the taxpayers have any legitimate interests then? Or is it too bad, so sad? Maybe Lior will weigh in...

Much of this back and forth can be resolved, I suspect, if there are clear expectations enunciated at the outset by the university. My own sense, probably, is that if the university didn't articulate its interests clearly, then at least in the interim silence, the students should be able to effectively sequester their works until publication (by allowing only a paper copy in the library). Going forward, I'd probably say that everyone must lodge digital reproductions, but the "arts" students can sequester public access for ten years upon graduation; but after that, the university can publish its digital files in its database for Google to pillage. For departments in the business of "knowledge" production in the form of articles, I'd say a policy of no sequestering is appropriate to allow for immediate dissemination. I'd prefer to have no sequestering as the rule in all non-arts disciplines to facilitate dissemination, but I'm aware that some university presses won't publish books that are drawn dominantly from sources already available. (Hence, the problem with the scholars who are expected to publish their dissertation in book form, rather than in articles.) What do you think should be done? Should public universities be able to assert any rights or interests in the works of their students?

Anthony D'Amato on A Concise History of Baseball's Infield Fly Rule

I asked Tony D’Amato (Northwestern) to get up on the mound and throw the baseball that officially opens the spring season for us here on PrawfsBlawg. (He did, beaning the third baseman.) Here is the first in an eight-inning series of blog posts on the history of the Infield Fly Rule in Baseball. If you don’t know what the Rule is, you’re better off. Tony’s series is excerpted, revised, and re-bowdlerized from its inaugural appearance in the centennial issue of Northwestern’s law review, 100 NW. L. Rev. 189 (2006). If you don’t refer to the original, you’re better off.
-- Dan Markel

A CONCISE HISTORY OF BASEBALL’S INFIELD FLY RULE

PART 1: THE BIBLE

by Tony D’Amato

The Bible tells us, in 1 Samuel 17:35, that young David, armed with only a sling, confronted the giant warrior Goliath. The latter, surely accustomed to the then-ubiquitous weapon, can be assumed to have been fully prepared to duck the stone emanating from the device and then advance upon the youth to smite him.

But then David cleverly yelled "Infield fly!" causing Goliath to look upward. That momentary distraction was all the time David needed to pitch his missile and thereby change the course of human history.

Although David’s strategem should be familiar to every schoolchild, the debate it has engendered in academic circles is not so well known. At issue is which came first, baseball or the Infield Fly Rule? One faction, the Midrashers, started by Moses Maimonides, apparently relies on elementary logic semiotically grounded on a steaming hotbed of layered structuralism. They basically contend that the Rule would have been meaningless to Goliath in the absence of the context provided by the game of baseball.

The opposing faction, the Originalists, insist that every word in the Bible must be taken as gospel. Hence, if the Infield Fly Rule was mentioned first, then it must have antedated the game.

Several decades ago the Originalists seemed to score heavily when they pointed to the opening words of the Bible in support of their claim: “In the big inning . . . .” But thirteen treatises later it was generally agreed that the Originalist gambit could not be sustained because it relied upon a translational pun that was not fore-seeded in the original Hebrew.

Instead of dying down, the debate escalated. Fortunately, it is conducted without a trace of scholarly jealousy. A new explanatory theory of time reversal in support of the Originalist position appears in Tekel Upharsin's Contested Expectations of a Second Coming: Biblical Praxis, Lefty Gomez, and the Path-Dependence of Liberal Angst (Cambridge: Wormwood Press, 2007). Upharsin cordially invites the esteemed reader to consider adopting a fresh and hopeful methodology which he calls supernatural logic, in contradistinction to the cramped deductivism of Frege and Wittgenstein. In supernatural logic, deduction can proceed from the bottom up rather than from the top down. Effects may sometimes anticipate their causes and time itself may run backwards now and then. One of the most notorious examples of an effect preceding its cause is precisely the Infield Fly Rule. Professor Upharsin notes that inasmuch as the Bible was authored by the Supreme Being, or at least written under Him for credit, anyone who argues that the Infield Fly Rule was not ex ante the game of baseball might conceivably be charging the Lord God as having only limited power over time and sports. But surely if anyone can make time run backwards, the Almighty can do it. “Time runneth backwards as doth not the doe in the field nor the wolf on the fold,” Upharsin quotes Him as saying.

A blogger by the name of Anonymous objected to Upharsin’s argument. “Bringing Almighty God into this debate,” Anonymous declaimed, “is a cheap shot.”

Upharsin concludes his book by characterizing the Midrashers as dirty liars, blasphemers, and probably affiliates of the Frankfurt School. They must immediately be tied between driverless humvees and torn asunder, and/or eaten alive by creepy-crawly things with odd numbers of legs. Their names must be anathematized, their research grants revoked, and their domestic partners accursed unto the tenth generation.

Gender Diversification in National Security Law

So, my usual pattern when I post to National Security Advisors is to cross-post whatever I write in its entirety.  This one time, I wanted to make an exception: I just posted some thoughts on gender diversity (or, more precisely, the disturbing lack thereof) among national security law professors "over there," and, in the hopes of keeping the debate to one comment thread (instead of two), wanted to flag the post here, but not repeat it in full.