PrawfsBlawg

So long, farewell, and good luck.

Thanks to the good folks at prawfs for allowing me to post over the past few weeks; it has been great fun.  For all those headed to the meat market next week, good luck!

Reflections on Doing an LRW Fellowship

This blog has many readers who are on the meat market.  One path to law teaching careers is through an LRW teaching fellowship—Stanford’s program, the Climenko, the Bigelow, etc.  This is the path I took, and if you are on the cusp of a law teaching career, but not quite ready, you might consider it.

It has been done before, but I thought I would offer some pros and cons of such programs.

Cons

•    It can be very difficult to produce scholarship while teaching lrw.  It is likely your first time teaching, and teaching LRW in particular is time-intensive as it requires you to constantly read your students’ work and give meaningful oral and written feedback;
•    Depending on the school, LRW instructors may not get much love from the doctrinal faculty, and your status may be low;
•    You may not have the opportunity to develop mentorship relationships with the faculty at the school;
•    Students may resent you for the amount of work you give them and any negative feedback that you might have to give them;
•    The pay isn’t great;
•    Teaching LRW is probably not what you really want to do.

Pros

•    If you work really hard, you may well be able to produce scholarship (I and all of my colleagues in Stanford’s program were able to do so);
•    Attending faculty workshops, symposia, and job talks will help you understand what makes for a good job talk;
•    You learn a lot about teaching;
•   If you are persistent and your timing is good, you may find some generous faculty members who will advise you, discuss your scholarship, and mentor you (as I did);
•    If you are lucky (as I was), you will have amazing and generous colleagues;
•   Teaching LRW can be incredibly rewarding, as it allows you to forge relationships with students, help them, and learn from them;
•    It can plug you into the law teaching network in a variety of ways (conferences, symposia, old-fashioned networking, etc);
•   It helps you on the tenure-track market because it demonstrates your seriousness about your aspirations, allows you to talk seriously about teaching, gives you time to find your voice and agenda as a scholar, and helps you adopt the persona of a law professor.

For me, despite the occasional complaining, the fellowship at Stanford was more than worth it.  On a purely functional account, it set me up very well for the teaching market.  On every metric, I did far better my second time on the market than I did the first (before the fellowship). 

Wholly apart from that, though, it was just a wonderful experience. I learned a lot about myself, mostly enjoyed the work, enjoyed working with students, and had great colleagues.  Not bad, as far as jobs go.

As I have indicated, I’m not convinced that the fellowship model is the best for LRW teaching, but that’s got very little to do with whether applying for such a position is the best idea for you.

Bringing LRW into the Doctrinal Classroom and Some Final Thoughts

This is the last post in my series on LRW.  In it, I will share some of my own plans to bring LRW into the doctrinal classroom and offer some final thoughts for doctrinal faculty to keep in mind about LRW.

First, some cautions against bringing practical lawyering into the doctrinal classroom:

• Doing so is difficult because it may require more time and effort giving feedback to students.  (I believe that more feedback is a good thing, but descriptively, it is difficult and time-consuming.)
• Doing so is difficult because most standard law school teaching materials (casebooks and teaching manuals) don't obviously lend themselves to it.
• Doing so may be difficult, particularly for junior faculty, if the law school is traditionalist.
• Doing so may require professors to be highly selective in the materials and issues they can cover.
• Doing so may be difficult if the professor doesn't have experience with practical lawyering skills.

All of that said, I have decided to give it a try.

This semester, a primary goal of my Legislation course is to prepare students to craft briefs and memos interpreting statutes.  To be sure, this is probably an implicit goal of any class that focuses on statutory interpretation.  But I am making it explicit, and the final weeks of the course will be devoted to constructing legal briefs or memos addressing difficult questions of statutory interpretation.  We will deal with several different cases and issues, working as a class, in small groups, and individually.  I will also give out real briefs and have students deconstruct them.

The students seem very eager to get to this part of the class, as am I; and I think the practical payoff will make the extra work worthwhile. 

The real cost is that I can only cover a fraction of the casebook (Eskridge/Frickey/Garrett).  We began the course with an introductory section, then moved to the theories of statutory interpretation, and then to the nuts-and-bolts doctrines of interpretation.  In order to make room for the practical skills section at the end, I have had to skip everything else in the casebook (which is a lot).  In this case, the tradeoff is worth it, because I'm fine with the class being about Statutory Interpretation alone, rather than a broader Legislation class.

However, when I teach my other (much bigger, enrollment-wise) courses--Civ Pro II (the Rules of Civil Procedure) and Con Law II (basically the Bill of Rights, minus a lot of stuff that gets covered elsewhere)--it will be more difficult to integrate practical lawyering skills.  I plan to use attorneys' briefs and pleadings in Civ Pro, and will likely require students to draft a complaint, answer, discovery requests, and so forth.  But I can't see how to do much more than that without skimping on breadth of coverage.  And beyond deconstructing briefs, I'm not really sure how to integrate LRW into Con Law. 

I am eager to hear what others have been successful (or unsuccessful) with.

Finally, for those who are uninterested in integrating practical lawyering skills and who don't spend much time thinking about LRW, please just keep the following in mind:

• Doctrinal courses and LRW are closely related and mutually reinforce one another;
• Doctrinal professors should reinforce the importance of LRW and other practical lawyering classes when possible;
• The LRW course teaches students crucial practical skills that are central to legal education--it is not a throw-away course;
• Teaching LRW is difficult and extremely time-consuming;
• Students spend a lot of time on LRW (and should);
• In many cases, first-year students only get serious feedback from LRW instructors;
• LRW instructors often get to know students better than doctrinal faculty do, and may know if students are having personal or academic difficulties before any other member of the faculty or administration;
• Students who do well in LRW are often (but not always) the same students who do well in doctrinal classes.

Thanks to everyone who has read all of these posts (hi mom!) and for the provocative comments along the way.  Go hug an LRW instructor.

Teaching Research: Next in an Ongoing Series on LRW

Some readers have asked me to address teaching the research aspect of LRW head-on.

Of all of the components of an LRW program, I found teaching research to be the most difficult.  We had help from two resources on this score--librarians and Lexis/Westlaw reps.  The Lexis/Westlaw reps bring a tremendous amount of knowledge about their products to the table.  My sense is that the trouble is that they are trying to sell these products to students.  They aren't trying to teach the most efficient and effective ways to resolve questions.  Thus, they don't introduce all available tools, including actual books (particularly good as secondary sources to get you started on a project) as well as other online resources like government websites that carry many primary sources.

Law librarians are a different story altogether.  They bring a huge amount of knowledge and information to the table, and they can introduce students to a whole range of resources.

None of this has anything to do with how to teach legal research, though.  And like I said, I found it very difficult to teach in an effective way.  I invite readers to drop comments.

Is IRAC Good or Evil? The Next in a Series of Posts on LRW.

I say good. 

Virtually every LRW teacher will teach IRAC in some form or another.  For many, it may well be the centerpiece of writing instruction.  God knows that there are problems with teaching students IRAC, though.  It can make their writing superficial, too structured, too rote, and not analytical enough.  Still, broached the right way, IRAC is a powerful tool for the lawyer.

Why teach/learn IRAC?

The first thing to know is that some version of the IRAC structure is what a law-trained audience expects to read.  A talented writer can write brilliant analysis with some radical non-IRACy structure, but the busy judge, attorney, or law clerk reviewing it will find it difficult to read.  Imagine looking at the front page of the newspaper and finding that the lead story is written as a lengthy poem in iambic pentameter, or as a first-person narrative.  Poetry and first-person narrative writing can be graceful, brilliant, moving, informative, and profound.  But if you are looking at the front page of the newspaper, you probably want the news delivered to you in the format that you expect; and if it isn’t, the author has made your life harder than he should have.  Thus, the first reason to IRAC is that this is what the profession expects.

Second, IRAC is a useful tool for structuring legal writing, and we must give the novice a structure.

Third—and this is a topic for something much more than a blog post—IRAC does something for lawyers, because it presents what are often normative and value-based arguments as formalist and scientific arguments and conclusions.  Although many claim that "we are all realists now," that's not how cases are won or lost.

As much as we badmouth IRAC—experienced attorneys scoff at it, judges disdain it, and students hate it—it serves a central function. Indeed, go deconstruct any experienced attorney’s most recent brief or any decent judicial opinion (including those authored by the scoffers and disdainers) and you will find some version of, or riff on, IRAC. Lawyers write in IRAC even when they aren’t conscious of it, and it provides a useful way to write a persuasive analysis of the law.

That said, it is emphatically the LRW instructor’s job to teach students to IRAC in a sophisticated rather than superficial way—IRAC is not the be-all, end-all of legal writing.  It is extremely malleable, and there are lots of variations on it; it may even make sense to eschew the structure altogether in a particular case.  But as I have told my students, you need to understand and have control over the convention that you are choosing to reject, and you must be able to articulate why you are rejecting it in any particular case.

Follow up to "Is There a Place for Non-Traditional Scholarship?"

Yes!  There is!  And more than one!  See the comments for direction.

Thank you all for your advice on placement, as well as for the positive feedback on the piece.

Some follow-up points upon reflection:

I think that Howard and "anon." are probably right that legal academia is not quite as confining in this respect as I made it out to be (and thought it was).  Indeed, it turns out that blogs, online companions to journals, and various alternative publishing venues offer many different publishing opportunities for non-traditional writing.

Nevertheless, I do think that the meat market and tenure process indoctrinate and acculturate us into a certain set of assumptions about what kinds of publishing and writing are worthwhile.  This 2500 word piece will not get me tenure, nor should it (though please call me if you'd like to offer me tenure on account of this piece).  But putting aside this particular piece, suppose some very interesting, short non-traditional piece reaches a greater number of readers than the average law review article?  What if it makes a few more people understand, think about, and question the issues in the field?  What if it raises and addresses a novel issue?  Shouldn't that be entitled to some professional reward? 

This applies to other things like publishing co-authored pieces (which I have also done) and essays, writing fiction that makes serious legal points, or appearing before legislatures and other policy-makers.  There are some professional rewards for these activities, depending on the school and the context, but does it make sense to treat them as secondary or tertiary to the main job of publishing standard, turgid law review articles (which, of course, I have also done)?

Surely there are some personal and professional rewards here: you get your name "out there," you have something to talk about with other people, you have a teaching tool, and you generally get the benefits of being productive.  But the push towards a particular kind of publishing inevitably disincentivizes other kinds of writing and activities.  Is that a good thing?

Is there a place for non-traditional legal writing in the legal publishing universe?

I love being a law professor.  I love thinking about the law.  I love teaching and engaging with students.  I love writing.  I love hanging out with law professors.  And I love the many personal and professional benefits that come with being a professor.  (Do all junior professors feel this way?  Does it wear off?)

One of the very few things I don't like about being a professir is that it is confining.  I mean this in a broad sense--it really limits experiences and exposure, I think (as, perhaps, does every job)--but I have something very specific in mind here, and I'm looking for advice.

I have drafted an extremely short, non-traditional piece (2500 words, not yet footnoted), and I don't know if there is anyplace to publish it. 

The piece, Everything I Needed to Learn About Legisprudence I Learned by Third Grade, is a little gimmicky.  Okay, maybe it is very gimmicky.  Based on a true story, it starts with a proclamation by Mother, the Supreme Lawmaker, that "no food may be eaten outside the kitchen."  What follows is a series of rulings by Judges (Father, Babysitter, Grandma, etc.), who, using traditional tools of interpretation, eventually declare it to mean that all food may be eaten outside of the kitchen.  Ultimately, the Supreme Lawmaker reacts and clarifies.

The piece, which I will use as a teaching tool in my Legislation and Statutory Interpretation class, is meant to highlight the following:

• We use the basic, competing modes of statutory interpretation all the time;
• When we interpret pronouncements in real life, we resort to a mix of textualist, literalist, purposivist, legal process, precedent, and other techniques and sources;
• Although the various tools seem (and often are) perfectly reasonable individually, in the aggregate, they can lead to ridiculous results;
• Even when we agree that the ultimate results are ridiculous, it is sometimes hard to pinpoint exactly where the error occurred;
• The legislature can sometimes clean up after bad judicial opinions, but it often takes a long time.

(I will also offer it to my students as a way of identifying types of arguments and a tool for reviewing their cases.)

I have thought about making these points explicitly in the piece, thus building a somewhat longer article around the gimmick, but I think it stands better as it is.  I'm very open to comments, though.

I just have no idea if there is an outlet for this sort of thing. Do traditional law reviews ever publish small, non-traditional pieces? Regular law review articles are useful for some purposes, but surely there are other ways of communicating ideas.  Short as it is, it is too long for a blog post. 

Are there other outlets?

/end_rant

Who Should Teach LRW?

Broadly speaking, there are three choices that schools have in choosing LRW teachers.  In some schools, the programs are taught by professors or full-time instructors; in other schools, part-time faculty teach LRW; and in still other schools, the program is taught by fellows who will, after 1-3 years, go on the tenure-track market.  To be sure, there are variations on these models, but I think these are the broad contours.

Each of these models has its benefits.  On the one end of the spectrum, having permanent, full-time (tenure-track or contract) LRW faculty means that the program is taught by Legal Research and Writing professionals.  They know what they are doing; they are committed to it; they think a lot about it; they attend conferences, contribute to the literature, and stay on top of developments; they become experienced over time; and so forth.  It also shows a commitment on the part of the school and reduces the likelihood that students get the message that LRW is a step-child.

On the other end of the spectrum, fellowship programs offer many ancillary benefits to the schools, the fellows, and the students.  But I want to focus on the actual teaching of LRW.  (Obligatory conflict of interest reminder:  I was an LRW teaching fellow at Stanford.)  I do sometimes wonder whether this model is good for teaching LRW.  Here are some problems with it:

• Fellows don't really want to teach LRW (I had a great time doing it, but it wasn't my long-term career goal);
• Fellows are not committed to LRW teaching, and consequently don't attend conferences, stay on top of the literature, and so forth;
• Fellows may not have a great deal of practical lawyering experience;
• Fellows operate with time constraints, committed as they are to publishing and going on the market.

So I do wonder whether this is the optimal model for LRW teaching.  That said, I think this model carries at least some benefits.  Fellows may bring an excitement to the LRW classroom; they may view the fellowship (as I did) as an opportunity to learn how to teach, and therefore be very committed to doing a good job; they may be approachable for students; they may realize that their performance evaluations from faculty and students will play a role in their marketability; and the very fact that they are not far removed from having practiced as junior attorneys may make them uniquely suitable to preparing students for that role.

It could be that these positives, together with the ancillary benefits to the schools, makes this an attractive option.  Further, a good program, with strong gatekeeping and a good director and mentoring (as we had at Stanford), may well mitigate some or all of the risks and negatives.  If pushed, however, I think that from the standpoint of LRW teaching, the fellowship model presents the greatest risk. 

Let me hasten to add that I think very highly of the Stanford program, the people who run it, and my colleagues; we all took the job quite seriously and were reasonably good at it.  But none of that changes the fact that the model represents a risk, and that overall, dedicated and potentially permanent LRW faculty may be a better model strictly from the standpoint of teaching.  Indeed, as I have argued, as the doctrinal faculty becomes more and more specialized--and more and more removed from practice experience--it may be especially important to have LRW instructors who bring a different set of experiences and skills to the table.

One final word on the subject: whatever the model, LRW instructors need to have some basic practice experience.  They don't all need to have been litigators, despite the fact that LRW programs usually focus on the litigation context; indeed, given that many (probably most) of our law students will not be litigators, it is important to have instructors with a diverse range of lawyering experiences.  But they absolutely must have some practical lawyering experience.

I am curious what others think about these issues.  And I am especially interested in what students have to say.  Please chime in!

The Components of an LRW Program

The first thing that any LRW class should do is state its goals upfront.  And, as I suggested in previous posts, the goal should be more than “to teach you how to write stuff that lawyers write and to research the law.”  Rather, the goal should be something like, “to teach you how to act like a lawyer and to use the law the way that lawyers do to resolve real-life problems.”

It isn’t enough just to say this, because these words have no meaning to a novice.  I think it is necessary to make explicit from the start to students that the law is not some object or force out there that solves problems on its own.  The famous cases don’t get to the Supreme Court by themselves, and judges at any level don’t write on a blank slate—they write based on what lawyers write.  Admittedly, these are obvious points, but I do not think that traditional doctrinal teaching conveys this at all.  Indeed, I think that the case method tends to undermine this message.

From there, an LRW class could cover the following elements--at least introduce students to them; and instructors should show students how each relates to the primary goal of the course:

• Turning messy real-life problems into legal problems;
• Communicating with the client, supervising attorney, and opposing counsel;
• Choosing and using appropriate legal research resources and strategies for every stage of a project;
• Synthesizing Cases;
• Writing in different genres, including genres that don’t arise in the context of litigation (because many, if not most, lawyers will rarely litigate a case);
• Recognizing good and bad legal writing, which includes showing them legal writing other than appellate judicial opinions;
• Professionalism.

One commenter to an earlier post argued that LRW is really just an opportunity for students to practice legal reasoning and to put it in writing.  Obviously, I thinks that's too narrow a goal for an LRW program; and it does not take much class time to include some of the other elements that I have suggested.  Here are some examples.

Rather than start with a clear law-based fact pattern, why not start with a story about a client who had something bad happen to him/her? And why not ask the students whether they have any intuitions about whether there is a lawsuit there.  Does it sound like a tort?  A crime?  A violation of constitutional rights?  Even students at the very beginning of their legal education have intuitions that move in the right direction--which is part of the point, i.e. that law often tracks what you think the "right" answer is.  And this--turning real life problems into legal issues--is what lawyers do in the real world. (To a degree, this also tracks at least one style of lawschool exams.)

Students should also learn how to sharpen that intuition and find a legal claim.  Secondary sources, such as treatises, are a great place to start.  Brainstorm some search terms.  Use the computer and the index to a hardcopy to get the basic contours of the claim.  Once again, this is what lawyers (particularly junior lawyers) do.  Then give them a case that's on point and ask them to reason from it.  Only then have them write their first memo.

It is also worth discussing alternatives to lawsuits.  Many students will want to immediately go to court to serve their client.  But can the client's interests be better served with a phone call to the other side?  With a letter to a state agency?  This necessitates a discussion comparing the client's interests (what s/he wants) with what a lawsuit can offer.  These are points worth returning to throughout the program.  For example, if the memo the students write concludes that the legal issue is a close call, then what should they tell their client about filing the lawsuit, given costs and competing interests?

There surely are other elements to a good LRW course.  I mean only to suggest that the "R" and "W" are not the only important parts of the program.  The point is that all of these are things that young lawyers need to understand, but often don’t get from the traditional law teaching methods in doctrinal class.

Next week, I'll address who should teach LRW, IRACing, teaching legal research, and bringing the principles of LRW into the doctrinal classroom.  I'll likely finish the series by responding to some of your comments and by offering some reflections on doing an LRW teaching fellowship on the way to getting a tenure-track doctrinal teaching gig.

Why Think of LRW Programs in this Way--or At All?

In my last post, I suggested that we should conceive of LRW programs broadly, as teaching students how to act like lawyers.

Why?  And why should we (mostly doctrinal faculty) put much thought into LRW programs at all?

My sense of law teaching market trends is that doctrinal teaching is becoming a more and more specialized field.  More and more schools are hiring based on publications, fellowships and similar "post-grad" academic activities, and advanced degrees in complementary fields.  Simultaneously, fewer and fewer young law professors have extensive experience as real-world lawyers.  We can debate whether these trends are good or bad, but even if we were to agree that, on balance, they are positive,  we should immediately recognize that they come at a cost.  Our students pay tuition, in part, in order to learn how to be lawyers--that is, to operate in an almost totally different field from the one in which their professors have expertise.  Law schools therefore have a responsibility to help prepare students for practice outside of the doctrinal classroom.

Unfortunately, law school faculty too often thinks of the LRW curriculum (if they think about it at all) as something separate from the “important” part of the law school. Strikingly, on “life of law school” blogs like this one, LRW is discussed exceedingly rarely.  More perniciously, LRW instructors often do not have the same status in the law school as doctrinal professors, and students get the message rather quickly that LRW is a step-child.

The truth is that as doctrinal teaching becomes more specialized, formerly ancillary law school programs, including LRW, clinics, internships and externships, professional training seminars, and so forth should now be viewed as central to legal education--as filling in the gaps that doctrinal courses no longer (and maybe never) covered.  LRW programs in particular, because they are mandatory first year courses, present an opportunity to teach students the things they should know but aren't likely to get in their doctrinal classes.

Doctrinal faculty would also do well to think about LRW programs because doing so would inform our own teaching pedagogy.  For example, the blog debates about whether to use edited or unedited cases in the classroom basically ignored the fact that a research assignment in an LRW class requires students to read, sift through, and analyze unedited cases.  (Which way this cuts is a different question, of course.) 

Similarly, the endless navel-gazing discussions about teaching pedagogy, exam writing and exam-taking advice, practical credentials for doctrinal faculty, curricular reform, law school rankings, and the very identity and purpose of a law school and its relationship to lawyering would benefit from some thought and understanding about the role of the LRW course.  Finally, LRW programs often include the kinds of interactive teaching methodologies that the Education folks insist make for good pedagogy.

In my next posts I'll focus on what LRW programs should include.

What Should an LRW Program Try to Achieve?

There is wide variation among LRW programs.  Generally speaking, though, they teach a set of practical lawyering skills that students are unlikely to get from their doctrinal classes.  The most obvious of these skills is the ability to produce certain genres of legal documents, usually including predictive memoranda and briefs, and also (in some programs) case briefs, letters, file memos, contracts, or judicial opinions.  Many programs also introduce students to legal research techniques (more on that in another post) and oral argument.

But this is a very narrow way of thinking about these problems--really just a recitation of the types of assignments that students are likely to complete in an LRW course; this description doesn't account for the broader goals that LRW programs aspire to.

Here's how I would frame it: doctrinal classes, per the old trope, teach students to think like lawyers; lrw programs teach (or should teach, or should try to teach) students how to act like lawyers.  To put it otherwise, the major preoccupation of first semester doctrinal courses is to teach students how to read and understand the law, while the goal of the LRW program is to teach students to use the law to help a real person solve her real life problem using a set of professional tools.

In my next posts, I will explain why I think it is useful to think of an LRW program in this way, and more broadly, why it is worthwhile for us--primarily doctrinal faculty, but also law schools more generally--to think about LRW programs at all.  I'll then tackle the practical aspects of LRW program: how to implement the goal I have identified; who should teach LRW; how to think about IRAC; teaching research; and so forth.

Gay Rights: Equality or Due Process?

Update: this post originally posted before I finished drafting it.  What follows is the full version of the post.  Blame it on my technical skills.

A while back, Kenji Yoshino and Heather Gerken debated whether gay rights should be based on equality or liberty.  I'm a great admirer of Kenji's work, but I'm with Heather: equality it is.  As Tribe argued, we should rather see gay rights stand in the Brown (and Loving) line of cases than the Roe line.  Let me suggest why: Roe is a poorly-reasoned, poorly-written case that remains highly controversial. 

Indeed, the whole idea of "substantive due process rights" is suspicious to many, as is the enterprise of mining the Constitution for new rights.  "Equality" at least has the virtue of being somewhere in the document, in one form or another.

Yoshino is surely right when he argues that judges are wary of extending protections to "too many groups."  But aren't they also wary of recognizing "too many new rights"?  Moreover, the "too many groups" problem can be somewhat mitigated: at the very least, discrimination against gays can be thought of as a form of gender discrimination, an already-protected category.  This is true both formally (Jim can marry Pat, but only if Pat is a woman and not a man) and in terms of social norms and context.  Recognizing discrimination against gays as a form of gender discrimination might not accomplish all that gay rights advocates wish to accomplish, but it avoids the "too many groups" and "too many rights" problem.

All the same, this debate strikes me as a quixotic--one might say academic--endeavor.  Won't (and shouldn't) lawyers make both arguments, where appropriate?  And won't different judges choose among them as they see fit, or just continue to issue opinions that represent a hodgepodge?  I think this fits in with that other question we've been tackling here--what is the relationship between these academic debates and what goes on in courts and lawyers' offices?

Introducing a Series of Posts on the Role of Legal Research and Writing

I never planned on teaching Legal Research and Writing, but boy am I glad that I did.  I taught in Stanford's fellowship program, which is similar to, but not the same as (or, as my seventh grade math teacher always said--when she wasn't saying "I'm from the show me state Missouri, so you'd better show me"--"it's the same but different") programs at Harvard, Chicago, NYU, and elsewhere, in that Fellows teach the first year legal research and writing curriculum while preparing to go on the tenure-track market.  (At same later point I will share some thoughts about doing these Fellowship programs.)

In this series of posts, I will focus on the role of an LRW program (or whatever name it goes by at your school) in the law school curriculum.  Here are some topics that I hope to cover (feel free to suggest more!), followed by one initial thought:

• What does an LRW program try to achieve?
• What should the LRW curriculum be?
• Who should teach LRW?
• How does an LRW program relate to the doctrinal curriculum, and what, why, and how should doctrinal faculty think about the LRW program?
• Is IRAC Evil?
• Should we rethink LRW programs?

In my view, an LRW program is crucial.  In some ways, I think it is the most important law school class--in both the obvious sense (it comes closest to preparing students to actually do the work that they will do as summer associates, interns, and junior lawyers) and in a more controversial sense that will become clearer throughout this series. 

Guest Blogging on LRW, the Meat Market, and Whatever Else Strikes My Fancy

Thanks for having me back--glad to be here!

During this guest-blogging stint, I'm going to try to focus on three things:

1. I plan to do a series of posts on the role of Legal Research and Writing in the law school curriculum.  For reasons that I will explain, I think that this subject is unfortunately overlooked on blogs like this.
2. With the meat market upon us, I will likely do a post or two on the subject.  I went through the process last year and greatly appreciated all of the information available on the internets tubes.  If readers have questions or suggestions for posts, please leave comments.
3. One of the nice things about blogging is that I get to write whatever else I want.  (I promised that there would be three items of focus, so I guess this is like being granted three wishes by the genie and using the last one to wish for an infinite number of wishes.)

Things that make you go "Huh?!"

Mostly naked supermodels in the window?  Yes.  Mother nursing baby in the fitting room?  No.

Huh?!

Things that make you go "Huh?!"

Mostly naked supermodels in the window?  Yes.  Mother nursing baby in the fitting room?  No.

Huh?!

What about the soldiers?

There's been a lot of coverage of ABC News anchor Bob Woodruff's injuries and medical care.  We get regular updates about where he is being treated, by whom, for what, and even who is paying for it.  That's all well and good, but what about the thousands of troops who have been injured since the start of the war?  I imagine at least some of them are a little irked.  What makes Woodruff's the stuff of major news stories, but the average grunt's not even fit for the back page?

I think the answer is twofold.  First, those Americans who watch ABC news have a relationship with Woodruff; they feel like they know him.  More importantly, the people who write the news stories know Woodruff and/or lead lives just like his.  This story touches them.

Law teaching and exploding offers

Jennifer Mnookin over at LawCulture has a great post concerning exploding offers on the teaching market.    She writes:

I get the feeling that exploding offers just might be increasing, and sometimes with deadlines that seem ever-earlier.

Our readership includes lots of people on both sides of the hiring process.  If any of you have any experiences to share, please drop a comment.  Comments may be anonymous, but please identify the "tier" of the school or schools you are talking about.

[See also Dan Filler's post at Co-Op on the subject, taking a different view.]

Kenji Yoshino's Response to My Posts

Kenji Yoshino was kind enough to respond by email to my posts on Covering, and he's given me permission to blog his email.  (I apologize for the weird formatting.)

To begin with your post on same-sex marriage, we are on the same page, namely page 91 of my book:

"Covering seems a more complex form of assimilation than conversion or
passing. At the most basic level, it raises thornier issues of
classification.  I'm sometimes asked, for instance, whether I consider same-sex
marriage to be an act of covering or flaunting.  I think it is both.  Along the
axis of affilation, marriage is an act of covering, as marriage has historically
been associated with straight culture.  This is why queers like Warner revile it
and normals like Sullivan endorse it as an act of assimilation.  Along the axes
of appearance, activism, or association, however, marriage is an act of
flaunting.  This is why right-wing moralists object to it as a sign that gays
are getting too strident in our claims for equality."

(As you've probably guessed, the book distinguishes among four different axes of
covering--appearance, affiliation, activism, and association.)  I couldn't get
this point about how the axes cut in different directions in the case of
marriage into the Times piece, so I found your analysis prescient.

With respect to your point about the importance of conformity, let me be clear
that I am not against all forms of assimilation or covering.  Page xi:

"I recognize the value of assimilation, which is often necessary to
fluid social interaction, to peaceful coexistence, and even to the dialogue
through which difference is valued.  For that reason, this is no simple screed
against conformity.  What I urge here is that we approach the renaissance of
assimilation in this country critically.  We must be willing to see the dark
side of assimiation, and specifically of covering, which is the most
widespread form of assimilation required of us today."

The tricky thing, of course, is to balance the interest we have in assimilation
with the interest we have in disestablishing discrimination.  For too long, I
think folks have papered over how those two interests are often in tension.
Assimilation has been viewed to be a simple escape from discrimination, when it
is often in fact precisely the effect of discrimination.  So when racial
minorities are instructed in grooming manuals to "act white," I think many
Americans would view that as a claim that white culture is still more valued
than other ethnic cultures.  To the extent that this is true, norms of
assimilation and norms of antidiscrimination will be in tension with each
other, and we will have to choose between them.  Reasonable people can disagree
in many contexts about which to choose, but my tendency is to choose the latter.

In terms of remedies, I'm with the person who responded to your post by
observing that a rights-based approach can protect difference by
finding common ground at a higher level of generality.  To take a simple
example, a right against discrimination on the basis of religion would protect
individuals of different religions.  I don't think this universal rights
approach is a panacea, but I do think it is an avenue our courts and
legislatures should explore further.  In fact, as our country gets more
diverse, I think we will be driven toward this universal liberty approach
because the group-based equality approach lends itself to the very
balkanization you describe.  Last quote:  "Ironicially, it may be the explosion
of diversity in this country that will finally make us realize what we have in
common.  Multiculturalism has forced us to vary and vary the human being in the
imagination until we discover what is invariable about her."  p. 192.

More or less we are on the same page, but I am less confident than he is that as we grow more different, our similarities will become more important.  My experience suggests otherwise, but I hope I am wrong.

Covering and Same-Sex Marriage

Covering is the muting or toning down of stigmatized identities.  Kenji Yoshino seems to believe that same-sex marriage is the refusal to cover.  In his New York Times Magazine article, he points to a case in which a young woman lawyer's job offer was rescinded after the employer discovered that she was planning to marry another woman in a private commitment ceremony; she might not have received this treatment for "just being a lesbian"; but thrusting her "lifestyle" onto the public in this way was just too much for the employer.  In other words, the employer wanted her to cover by keeping a low profile with respect to her sexuality. 

On the website devoted to his book, Kenji elaborates:

Gays routinely cover along all four axes: appearance ("acting straight"); affiliation (not making reference to gay culture); activism (avoiding the charge of being militant or strident about gay rights); and association (eschewing public displays of same-sex affection).

And surely he is right.  After all, same-sex marriage and marriage advocacy are public statements, behaviors, and displays that accentuate the stigmatized "gay identity."

But I think it is more complex.  In a strong sense, same-sex marriage is the very definition of covering.  Traditionally, "gay culture" did not revolve around marriage in any way.  And of course, that's no surprise: marriage and even the weaker substitutes were not available to gays and lesbians, and homosexuals were wholly rejected from society; why would their culture and identities revolve around traditional marriage and family?

As told by Jonathan Rauch and Andrew Sullivan, same-sex marriage advocacy is a conservative move.  If same-sex marriage advocates are successful, gay couples will look more like straight couples, not less; they will have mainstreamed themselves.  And when it comes down to it, a married gay couple living next door is likely to be less jarring for many straights than is what many straights envision when they think about "gay culture," which brings to mind a more open sexuality. 

In fact, it is for this reason that some gays and lesbians reject same-sex marriage.  They view it as, well, covering: muting their traits, preferences, priorities, and culture in order to "fit in" with mainstream culture, which prizes heteronormative marriage relationships.

I said earlier in the week that conformity can be a good thing--a way to allow us to live in harmony, to share experiences and a language.  It is precisely for this reason that I support same-sex marriage.  I think that marriage is a good thing; better for society and for the individual than the alternatives (though of course not better for everyone in every circumstance); allowing gays and lesbians to marry and encouraging them to do so is encouraging them to look and act more like me.  And asking someone to conform to the dominant heteronormative culture is asking him to cover.  No?

Kenji Yoshino's "Covering"

Kenji Yoshino, a brilliant young law professor at Yale Law School, has just published Covering: The Hidden Assault on Our Civil Rights.  I haven't (yet) read the book, but I did read his adaptation in the New York Times Magazine last week (unfortunately, it is now only available on a subscription basis) as well as numerous book reviews.  Also, I had the pleasure of hearing him lecture on this topic when I was a law school student.  I think Yoshino is brilliant and erudite, and his work is provocative.  But in certain ways I also think he is wrong.

First, a brief overview.  My apologies if I don't do his argument justice.  Yoshino maintains that our traditional view of civil rights, based on principles of equality, is too limiting.  Civil rights law protects from discrimination based on immutable qualities (race, gender, national origin, religion (query whether religion truly is immutable), and (in some jurisdictions) sexual orientation).  It does not protect behavior, however.  For instance, the law protects a black person from getting fired on account of being black, but it does not protect her from getting fired for "acting" black.  (The example used by Yoshino is a black woman who wears her hair in a distinctively black style.)  As a result of this lack of protection, people must "cover" their true natures and identities.  They aren't passing as something they aren't, but they are covering: muting their own qualities in order to "fit in" with the mainstream.  Yoshino points out that everyone covers--everyone has some trait or traits that she try to mute in order to be accepted as normal--and argues that this limits the full range of human identity and expression.  In short, he favors a liberty-based vision of civil rights over an equality-based vision.  In a wise and humble move, though one that might leave someone searching for answers unsatisfied, Yoshino concludes that the change he envisions in the civil rights model will not come from courts, and ultimately not even from the law itself, but rather from collective understanding, tolerance, and embrace of the range of human behavior and expression.

I agree that we should be far more tolerant of differences in expression and behavior than we currently are.  As a practicing Jew I am always aware of my minority status within the dominant secular and/or Christian culture, and at times I feel the pressure to cover.  That pressure can either be socially imposed or internally imposed.  It can be a difficult feeling, and I'll bet that each of us, as Yoshino says, covers in some way or another.

At the same time, however, I strongly believe that there is a value in conformity.  It seems to me that the melting pot ideal--with all of its limits--is still a worthy ideal; and surely the melting pot calls on us all to conform and cover.  I fear that Yoshino's argument, if taken to its logical conclusion, leads to a world in which we can all respect each other--a laudable goal--but in which we cannot talk to each other.  After all, our communication and identification is based on our common and shared experiences.

Thus, I do agree with Yoshino that a black woman should not be fired for wearing her hair a certain way; that a woman should not be fired for marrying another woman; that an orthodox Jew should be permitted to wear a kippah (yarmulke) in the military; and so forth.  So insofar as Yoshino is calling for greater tolerance on the part of individuals and employers, I strongly agree with him, and it strikes me that this isn't a particular radical position.  But insofar as he envisions a future in which we embrace the idea that there is more that divides us and our behaviors than there is that we share, I am very wary.

The Next Battle Over Intelligent Design

After a court ruled that intelligent design theory could not be taught in science class, ID advocates have predictably turned to the philosophy curriculum.  Given how overtly theological the proposed course is, I expect that it will be ruled unconstitutional:

An initial course description . . . said "the class will take a close look at evolution as a theory and will discuss the scientific, biological and biblical aspects that suggest why Darwin's philosophy is not rock solid. The class will discuss intelligent design as an alternative response to evolution. Physical and chemical evidence will be presented suggesting the earth is thousands of years old, not billions."

However, I do imagine that someone could design a course that passes constitutional muster that explores the cultural and philosophical background and implications of judeo-christian belief.

Mitt Romney, Observant Jews, and Abortion Politics

We can all safely assume that Mitt Romney is running for president.  We can also safely assume that his positions on abortion are going to raise many eyebrows in conservative circles.

To break it down, Romney is basically personally opposed to abortion but favors its legality.  To be sure, to some audiences he has come across as somewhat more conservative, but this seems to be the gist of it.

Naturally, some conservative voters, particularly religiously conservative Christians, are aghast at this position.  They see him as wishy-washy and flip-floppy on a position that is central to their agenda, and they believe that he has taken this position for political purposes.  (It wouldn't do, after all, to run for governor of Massachusetts on a "pro-life" platform.)

I think, however, that there is more here than his naked political tightrope walking.  Abortion politics seem to revolve around two extremes.  On the one hand you have people who believe that abortion should be freely available in all circumstances.  On the other hand some believe that it should never be available.  Pro-life has taken on the definition of "opposition to abortion in all cases," and pro-choice has basically taken on the opposite definition.  Of course, there are a great number of us in the middle, but the most energetic and committed activists (and thus those most likely to participate in the primaries) on both sides are, predictably, those at the poles.

But, of course, Romney is a practicing Mormon.  And Mormon teaching on abortion seems to be more gray than black-or-white.  For this reason, Romney can't fully identify with either group of activists in the abortion debate.  The same is true of many Orthodox Jews.  Many (most? all?  I make no claims) Orthodox Rabbis take the position that abortion is permitted in narrow circumstances.  Some may even hold that abortion is required in limited circumstances.  At the same time, most Orthodox Rabbis would be repulsed by the idea of freely available abortions.  Indeed, there is a debate among some Orthodox Rabbis concerning which option would be preferable given a choice between the current liberal abortion laws or a total ban on abortion.  But exceedingly few would prefer either of those options.  And so it could be said that many (most? all? I have no idea and make no claims) Orthodox Jews similarly feel uncomfortable with either side of the abortion debate, which seems to have been taken over mainly by conservative Christians and more-or-less non-religious liberals.

This is not simply wishy-washiness (though it may be that); it is a limitation of language and political discourse.  Many Mormons and Orthodox Jews simply don't fit comfortably on either side of this debate. 

***Note that I have completely ignored the normative and legal questions concerning whether, how, and when religious belief and commitment should and may dictate policy preferences.  I take it as a given in this post that religious beliefs and commitments do influence policy preferences to varying degrees.

The Weekly Standard on Snoopgate

Is its position that the President should have the authority to bypass FISA or that he does have the authority to bypass FISA?  That's a world of difference.

Ah, so that's why it matters

Last week I asked why (putting aside the substantial problem with the President breaking the law) the secret wiretapping matters if the FISA court is a rubber stamp.

It turns out that the FISA court wasn't just a rubber stamp. 

Carry on about your business.

UPDATE:  The link should work now.  Thanks to Pooh for the tip on the broken link.

Are you certain about that, Mister President?

Now, by the way, any time you hear the United States government talking about wiretap, it requires—a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.

—President Bush, at a Q and A in Buffalo, N.Y., April 20, 2004.

Hat tip: Tim Noah at Slate.

The FISA Rubber Stamp(?)

Last night on CNN Jeff Toobin opined that the FISA court is basically a rubber stamp, and not an effective check on executive authority.  He reported that out of more than 19,000 warrant applications in the court's history only 5 have been refused.  He further explained that the FISA court could even grant warrants retroactively.  For these reasons, he expressed some confusion as to why Bush would bother circumventing the FISA court with secret warrantless wiretapping.

It strikes me, though, that this question cuts both ways.  If Bush could have accomplished exactly what he wanted through FISA, then why is there an uproar over the fact that he bypassed it?  Granted, if he broke the law, that's worth getting upset about; but I gather that the concern here isn't over the mere technicalities of the law, but something far more substantive.  So what is it?

Does Anyone Else Find This Ironic?

The timing for this couldn't be better.

Iraq Searches, American Style

American-style search warrants are coming to Iraq, a victory for locals who don't like random searches but a defeat for some troops who think surprise searches are useful. While still under review, the new policy requiring search warrants is expected to go into force next month. "That is fine," Lt. Col. Alan Kelly tells our Julian E. Barnes in Mosul. Kelly, commander of the 172nd Stryker Brigade's 1-17 infantry battalion, explains that most bad guys operate from roving cars, not houses, anyway. But other officers aren't happy, believing the new policy will lead insurgents to simply shift strategies. "It will be just like the mosques," one tells Barnes. "They will start hiding weapons in their homes."

Why the Democrats Won't Win on Snoopgate

The questions raised by snoopgate are compelling.  But don't believe for a moment that liberals can use it to their (our) political advantage.  I expect that this will play out politically much as the crime issue did.  Conservatives will be tough and portray liberals as weak.  Eventually, Democrats will figure out that the only way to win is to be tough.

Put differently, "We Won't Snoop On Terrorists" isn't a winning campaign slogan.

Proof that the Democrats can't turn this into a political win: If Orin (and everyone else that I've seen) is right that the President's actions violate the law, then we have a real life impeachable offense here.  Yet I haven't heard a single Democrat mention the word.  All I've seen are weak statements from some Democrats that they didn't sign on to the President's program or that they expressed reservations.

UPDATE:  It turns out I spoke too soon.  In fact, some Democrats have raised the impeachment question.  That notwithstanding, I still maintain that this is a political loser for the Democrats.

If They Knew This Is What They Were Doing, They Wouldn't Have Done It

If you've been following Snoopgate, then you know that Bush and his team argue that the congressional authorization for military force overrides any FISA-related obstacle to the wiretapping in question.  (If you have no idea what I'm talking about, I refer you to Orin's excellent analysis.)

Well, here's another wrinkle.  According to AG Gonzalez (via Kos), the administration considered trying to get a bill passed amending FISA to expressly permit this warrantless monitoring; it ultimately chose not to pursue the law because it became clear that Congress wouldn't pass it.

This can mean only one of two things:

1. When Congress passed the use of military force authorization, it did not intend to give the President this monitoring power, and if it had so realized, it would have more narrowly tailored the resolution.
2. Congress may have wanted to give the President very broad powers, including the power to wiretap without a warrant, when it passed the military authorization; but it would not expressly give the President wiretapping power in a separate bill, perhaps because it would be too politically controversial.

Religion in Politics: Bad, Except When Good

It is an opinion commonly expressed by some liberals: socially conservative religious folks are entitled to their personal religious beliefs, but they ought not inject those beliefs into political and legal debates.  I've heard it said, for instance, that religious people may well choose not to abort, but they have no business telling nonbelievers (or those who believe differently) what to do, much less to legislate based on religious beliefs.

But do we really believe that religious beliefs have no place in national social and legal debates, that people must check their religious passions at the church/synagogue/mosque/ashram/temple/monastery/whatever-else-I've-forgotten door?

Put aside the obvious, that abolition of slavery and the civil rights movement were inspired and driven by religious belief and commitment, something that the popular (or at least, the northern white liberal) mythology seems to paper over to some degree.  Focus instead on one of today's socio-legal debates, the death penalty. 

According to this article, socially and religiously conservative Catholics increasingly question and oppose the death penalty.  When conservative Senators Santorum and Brownback raise questions about the death penalty, their motivation is plainly and unabashedly religious.  Same goes for the Pope and the various Priests, Nuns, and Bishops who have joined the abolitionist cause.  Yet liberal death penalty opponents seem more inclined to welcome these folks into the fray and less inclined to instruct them to keep their religious beliefs to themselves.

Am I missing something?  Is there a principled distinction between the death penalty and abortion such that religion may legitimately be brought to bear on the former but not the latter?

The Alito Clash

On November 1, one day after President Bush nominated Alito to the Supreme Court, I wrote:

[S]ome conservatives are crowing that Alito is a true conservative, someone who can be counted on.  Meanwhile, other conservatives are trying to reassure the left that he's no ideologue, no firebreather--just a man of unique intelligence, unquestioned ability, and strong principle. . . .

At some point, these narratives have to clash, don't they?

This question has bothered me since then, and has only become sharper as time marches on.

Take a look at this Knight Ridder article, which declares that Alito's judicial record shows him to be very conservative.  That's exactly the record that led conservative wise man James Dobson to declare:

We are extremely pleased by President Bush's selection of Judge Samuel Alito. . . .  As a federal judge for the last 15 years, Judge Alito has demonstrated that he understands the role of the judiciary is to interpret existing law in light of the Constitution, not make new law in service to a personal political agenda.

And guess who else is happy, and for the same reasons?  Jerry Falwell.  Ed Whelan.  Ann Coulter.  And who can forget Alito himself declaring fidelity to the conservative agenda?  Mind you, I'm not suggesting that Falwell, Whelan, Coulter, and Dobson all share the same view of conservatism or agree on any particular issue.  The point is that they would all tell you that they are committed to movement conservatism and judicial conservatism in particular--and they all support Alito for that reason.

But take a look at this rebuttal to the Knight Ridder article by the Senate Republican Conference.  The rebuttal is careful to take up only factual claims of the authors, for instance that Alito has never sided with African-Americans (which strikes me as patently absurd on its face, despite my not knowing as much as I should about Alito's record), without attacking their conclusion that he is, in fact, very conservative.  But frankly, what purpose could the SRC have if not to sow doubt concerning that conclusion?  The SRC doesn't generally make it its business to fact-check media stories, does it?

Add to that the White House's ridiculous insistence that Alito's past statements about Roe tell us nothing about what he would do.

And then you have the interesting spectacle of Alito's former clerks trotting out their liberal bona fides and declaring that Alito is not really that conservative.  (I don't put links in because I'm lazy.  But if you've been following the Alito nomination, you've seen these people quoted everywhere from the very beginning.  And if you haven't been following the nomination, why have you read this post this far?)

Well, which is it?  The law clerks, the White House, and the Senate Republican Conference, who don't want you to think that Alito is conservative; or the Knight Ridder article and Dobson, Coulter, Falwell, and Whelan, who are excited precisely because they think he is very conservative?  They can't all be right!

James Dobson said something revealing at the very beginning of this process:

Perhaps the most encouraging early indication that Judge Alito will make a great justice is that liberal senators such as Harry Reid and Charles Schumer and leftist pressure groups such as People for the American Way and Planned Parenthood have been lining up all day to scream that the sky is falling. Any nominee who so worries the radical left is worthy of serious consideration.

Dobson's position is not without merit.  It is defensible to make a judgment on an issue based on what your opponents think about it, because your opponents' reaction can reveal a lot.  It doesn't always work, of course, and I personally don't generally trust this technique very much.

But if those are the rules Dobson is playing by, then he shouldn't be surprised or upset of committed liberals take him at his word on Alito, and ignore conservatives who say otherwise.

South Africa to Recognize Same Sex Marriage

That's the latest news on the same sex marriage front, although it could take up to a year for it to play out.

Jury news

I have an interest in jury selection and composition, so I was intrigued by two recent stories.  According to the first, John Kerry served as a jury foreperson in Massachusetts.  According to the second, George W. Bush has been called to jury duty in Texas.  I imagine the president will get a deferral for, oh, about three years.

Same-sex Marriage, Proposition 2, and Honest Advertising

Voters in Texas will have a chance to amend the Texas Constitution to ban same-sex marriage.  But will the amendment also inadvertently ban "traditional" marriage?

The proposed amendment reads, in pertinent part:

H.J.R. No. 6

A JOINT RESOLUTION proposing a constitutional amendment providing that marriage in this state consists only of the union of one man and one woman.

BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Article I, Texas Constitution, is amended by adding Section 32 to read as follows:

Sec. 32. (a) Marriage in this state shall consist only of the union of one man and one woman.
(b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.

Some opponents of the proposed amendment have seized on the bolded language and argued to voters that this language will prohibit the state from recognizing marriage between opposite-sex couples.

Much as I detest this amendment, it seems to me that the opponents' claim is plainly wrong.  Section 32(a) clearly provides the definition of marriage as being between one man and one woman.  Section 32(b) prohibits the state and its subdivisions from creating or recognizing some other relationship and granting it the status "identical or similar to" what has already been defined as marriage.  I don't believe that anyone could fairly read the proposed amendment in any other fashion.

Texans should vote against the proposed amendment not because it would inadvertently nullify "traditional" marriage, but rather for the following reasons:

1.  Same-sex couples should be given full marriage rights, for the reasons expressed by Dale Carpenter in an ongoing series (beginning here, follow the links for more) over at volokh.com.

2.  The Amendment is countermajoritarian, as I argued with respect to the proposed Federal Marriage Amendment, because it would prohibit the Texas legislature from adopting same-sex marriage or civil unions at some conceivable future time when a simple majority of the population and its elected representatives supports such a change.

3.  It accomplishes nothing that could not also be accomplished without offending countermajoritarian principles.  For instance, the Amendment could simply prohibit courts from interpreting the Texas Constitution to require recognition of same-sex marriage or similar relationships, thus leaving it to the legislature and the people.  To go even further, the Amendment could require any future proposal to recognize marriage-like relationships to go directly to the people through a referendum process.

4.  Although opponents of the Amendment are wrong that its adoption would create confusion by leading people to question the legality of "traditional" marriage, the Amendment would be confusing in a different sense: what does "legal status . . . similar to marriage" mean?  We all intuitively know that the language is intended to prevent courts and the legislature from recognizing civil unions that are almost identical to same-sex marriage (a la Vermont and Connecticut).  But what about other marriage-like/marriage-lite relationships and rights?  Presumably, this question will end up in Court, precisely the place where conservatives claim they don't want these questions decided.

Argument (1) is a policy-based argument: I strongly disagree with the substance of the Amendment.  I believe it represents bad policy and wrongly discriminates.  Arguments (2) and (3), by contrast, are proceduralist/institutional: Constitutions should primarily concern themselves with procedural rights and rules, and also enhance majoritarian democracy.  Argument (4) is textual: This statute has the potential to create a great deal of uncertainty and mischief.

What do our readers think?

What do you think, Rick (and everyone else)?

Suppose the Supreme Court overturns the Roe/Casey line of cases, and holds that abortion regulation, except perhaps in the most narrow circumstances, is left to legislatures.  What happens next?

The most obvious answer is that States revert to whatever abortion laws they have on the books, mostly from the pre-Roe period, and go from there.  As to what would happen next, that's anyone's guess.  Jeff Rosen believes that the vast majority of states would have "mainstream" abortion laws.  Others  have similarly argued that the facts on the ground wouldn't change much.  By contrast, this study claims that thirty states would severely restrict or ban abortions.

I wonder, however, if, assuming the Court does overturn Roe, it should simultaneously overturn all abortion laws that predate Roe.  Before you call me crazy, let me explain. 

The strongest argument against Roe is that it improperly usurped the power of state legislatures (and perhaps the national congress) to legislate per the will of the people.  But legislation does not occur in a vacuum.  As a result of Roe, the legislative debate has been stymied and has clearly not developed as it would have in the absence of Roe; abortion laws have been frozen in time.  Thus, if Roe was a mistake, then the mistake will not magically be "undone" by overturning it.  And so perhaps the Court needs to do more than simply correct its "mistake" (again, we are assuming here that the Court will consider Roe to be a mistake; I'm not claiming one way or another), and figure out some way to allow the natural political process immediately to develop and take hold.  It seems to me plausible, though not certain, that the best way to do so would be to start over with a clean slate, and let the politicians, the interest groups, and the people battle it out.  (Avid readers will recognize that my natural tendency towards populism is in play here, as is my general conception of the Court's role as being to enhance democratic participation.)

Further, the Court should take into account the immediate expectations of the people, and what a sudden change in course would do to those expectations.  Imagine that abortion really were left up to the legislature from the start.  At every step, interested persons would take part in the political process and have fair warning as to what could happen.  But now that the Court has overturned abortion laws for decades, if it Court were to suddenly reverse course, wouldn't that shock the expectations of ordinary people?  What would happen to the woman who had scheduled an abortion for the following week, under the completely justified presumption that her abortion would be legal?  If she lived in a state with a pre-Roe law that banned abortion in her circumstances, her reasonable expectations would be dashed--just because of a change in personnel on the Supreme Court.  And similarly, doctors who perform abortions in such states would be in for a very rude awakening.  This would seem to me a wholly unjust result, and it argues in favor of starting with a clean slate, or at least issuing some kind of moratorium on the enforceability of pre-Roe state statutes.

I have a feeling that I'm not the first to suggest this course, and I imagine that some have offered more specific legal grounds to buttress these arguments.  Can anyone point me to anything specific?

Thoughts on Alito

I don't have much insight into this pick.  I'm reading the same stuff as everyone else.  What I do find interesting is that some conservatives are crowing that Alito is a true conservative, someone who can be counted on.  Meanwhile, other conservatives are trying to reassure the left that he's no ideologue, no firebreather--just a man of unique intelligence, unquestioned ability, and strong principle.  This clash was evident to a lesser degree during the Roberts spectacle (because that's what these things are, isn't it?); but I'm seeing more of it with Alito.

At some point, these narratives have to clash, don't they?

And now, for my rank speculation:

Liberals and democrats are really in a bind.  They basically showed Roberts to the door of the courthouse, expecting that they could then make a serious challenge to the next person.  But the next person was Miers, and whatever you think did her in, it wasn't liberal interest groups, democratic strategists, or democratic senators.  And here we now are with Alito, who is clearly qualified, clearly conservative jurisprudentially, but not remotely the firebreather that liberals were hoping for. 

I wonder: Do democratic senators have to oppose him, if for no other reason than that they have to look like they are doing something?  And will simply voting no (he surely won't get as many democratic votes as Roberts did) be enough, or will the base and the strategists demand a filibuster?

You know how I figured out it was a joke?

This can't be a real contract.  There's no Definitions section.

What. . . . Part V (are we there already?)

Thanks to Rick for engaging in this interesting (to my mind, at least) conversation.  I don't say "debate," because I actually don't think there is that much disagreement between us on this (these?) issue(s?).

I hope that Rick and the rest of you will indulge me for one last(?) time, as I make some comments in response to Rick's latest post.

First, I think Rick and I disagree on just who the Miers abortion/Roe signals are intended for.  Rick thinks that these signals are for "pundits, commentators, and law-types."  I hardly think so.  Pundits, commentators, and law-types surely do care about Roe, but they just as surely do not put the anti-Roe credential at the top of their list for what they want in a Supreme Court Justice.  The signals about her stance on Roe are sent to the very same people as the signals about her religious ideology.  Indeed, I think this is one reason that so many conservative "pundits, commentators, and law-types" are so angry about this nomination.  To them (and rightly so), it isn't all about Roe and religion, and their doubts about Miers therefore aren't assuaged by "reassurances" regarding her anti-abortion bona fides.  Indeed, that's why they supported Roberts, even though they can't feel secure that he will vote to undo Roe.  Rather, these signals are precisely for what Rick calls "persons-on-the-street" and politicians who answer to a particularly constituency.  It was this crowd that my initial post was directed towards.  They don't care about jurisprudence; they care only that abortion be curtailed, and hopefully banned.  And in that sense, they are guilty of whatever sin they charge liberals of.  My critique is that they've adopted the rhetoric of the principled conservatives, but they haven't adopted the substance.

Second, on the question of Roe specifically, I think it is plainly the case that many conservatives begin with the assumption that abortion is wrong, and then assume that the Constitution must be interpreted in that fashion.  As Rick himself points out:

For non-law-types . . . one's "views" on abortion are entirely reducible to one's "views" about abortion. 

That's who I am talking about.  I would hope that a national conversation on constitutional questions could be directed towards the, um, Constitution.

Finally, Rick, on the question of whether something deemed immoral should be deemed illegal, I don't think you quite answered my question, at least not entirely.  Let me repeat it: don't you think that many conservatives who oppose abortion often conflate the moral question with the legal one?  Please note that this question was prompted by your intial challenge to me.  You wrote that you believe that "abortion is wrong," but you've made no statements about the legal question.  And my point was just to highlight that those are two entirely different questions (though clearly one might bear on the other).

And finally a question for readers (who should feel free to chime in on anything else we've said): Do you like ongoing debates among us prawfsblawgers in this format?  Should we do it more often?  Not at all?  Are there topics you'd like to see covered?

What has one got to do with the other?, Part III

In response to my earlier post, Rick makes a provocative point.  He writes:

It's one thing -- isn't it? -- to think, based on observations, experience, and anecdotes, that anti-abortion views likely correlate with a view that, as a matter of constitutional law, Roe was wrong.  It seems like another thing, though, to think that the reason Roe was wrong is because abortion is wrong.  I would hope that all those who believe -- as I do -- that abortion is wrong and that Roe was wrong would also want an anti-Roe Justice to have reasons for her position other than "abortion is wrong."  What do you think, Hillel?

If I understand correctly, Rick's response consists of two moves: 

1. There is obviously a correlation between one's position on Roe and one's position on abortion, at least (but probably not only) if one is against abortion.  That is, it is reasonable to assume that one who is against abortion is also against Roe.  Therefore, once we learn that Miers favored an amendment banning abortion, we can have some confidence that she would also vote to overturn Roe.
2. Although this correlation exists, we also ought to assume that one's position against Roe is purely jurisprudential and from a different source than her opposition to abortion generally.

Do I have that right, Rick?

I have no beef with the first point, since it seems plainly correct.  But the second point is more troublesome.  There's no reason to believe that Miers has any jurisprudential views on Roe apart from her political/religious instincts.  Would she overturn Roe based on a commitment to majoritarianism?  Federalism?  Original intent?  Original meaning?  Contextualism?  Or perhaps she believes that a fetus is a person, and that it is therefore entitled to equal protection and due process, which abortion denies it?  Does she have any Casey-like positions on the value of precedent?  Has she thought about the Equal Protection and Establishment Clause arguments in favor of abortion rights?  We have no clue what she thinks about these questions.  Worse, we don't have any evidence that she has even thought them.

Further, and more important in the context of my original post, I don't for a moment believe that the majority of the people who are interpreting these signals ("she favored a constitutional amendment, so she must want to overturn Roe") have put much thought into these questions either.  Many of them oppose Roe simply because they believe that abortion is wrong.  And that's the very same thing they accuse liberals of, except in the reverse.

Let me see if I can put it another way.  Many liberals argue that abortion rights must be in the Constitution, because it is simply fundamental that a woman has control over her body and her procreative rights.  That kind of reasoning is, of course, question-begging and basically backwards.  And many conservatives rightly (no pun intended, unless you think that's funny, in which case, pun intended) call these liberals on it.  But don't many conservatives make precisely the same mistake?  Don't many start with the proposition that abortion is fundamentally and morally wrong, and therefore it can't possibly be protected by the Constitution?  And isn't that the same mistake?

In the end, I think that the signal is probably a reasonable one--someone who wants to amend the Constitution to ban abortion is also likely to overturn Roe if given the chance--but I don't think most people are making the distinction that you are between the political question and the jurisprudential one.  Am I wrong?

Now to turn the tables a bit on you, Rick, with a question from left field:

I agree that many liberals who support abortion rights conflate the policy issue with the jurisprudential one.  But don't you think that many conservatives who oppose abortion often conflate the moral question with the legal one?  That is, just as liberals should be careful to note that whether abortion rights are good is different from whether Roe is good (or properly reasoned or properly decided), so too conservatives should be careful to note that the question of whether abortion is immoral or bad is different from the question of whether it ought to be legal?  And don't you think that these questions are often conflated on the right, Rick?  (Anyone else can please feel free to chime in, of course.)

Miers Again

I do not support the confirmation of Harriet Miers.  As I have said previously, it is possible that she will prove her doubters wrong at her confirmation hearings (if this nomination gets that far); but based on her credentials and everything we yet know about her, I don't see any reason to expect her to do so.

Nevertheless, I am fairly disgusted by the portrayals of her in the media and among the punditry.  It is true that by allowing herself to be nominated she set herself up for some of the mockery.  But the truth is that this nomination reflects more on Bush than it does on her.  The nastiness that has been unloaded on a woman who seems perfectly intelligent, accomplished, dignified, and pleasant, is just uncalled-for.

Mind you, there's nothing wrong with a few jokes here and there at the expense of a public figure like Miers; it is certainly fair game to deride Bush for this nomination; and it is reasonable to question her suitability for the job.  But do we really need to make a sport out of this?  Have we no shame, no civility?

Indeed, although I intended my earlier post about her hyperbolic thank-you cards to be in the spirit of a quick joke, I now regret posting it; I do not want to be associated with the cackling chorus that delights in taking down a woman who does not appear to deserve it.

Her credentials, abilities, and suitability for the position (or lack thereof, as the case may be) ought to speak for themselves.  There's no reason to debase ourselves and embarrass her.

What has one got to do with the other? Unfortunately, possibly everything.

Harriet Miers opposes abortion so much that she supports (supported?) a constitutional amendment to ban it except in the most narrow circumstances imaginable.  The problem is that this position is being used as a proxy for her likely vote on Roe v. Wade.

In a principled sense, one has nothing to do with another.  One can oppose Roe and support protection of abortion rights; and one can believe that overturning Roe would be improper and still oppose abortion rights.

Conservatives have always chided liberals for confusing policy preferences with jurisprudence; indeed, this is one of the biggest knocks on Roe.  But to the extent conservatives take the cue about a nominee's likely votes on jurisprudential questions from her policy views, aren't they doing the same thing?

On Credentials

Let's look for a moment at what we know about Bush's reasons for nominating Roberts.  I'm talking about stuff that is on the record.  She is a born again woman. . . .  Okay, let me try it this way:

• Miers is a woman;
• She is a born again Christian;
• She is an accomplished attorney;
• She is very capable and probably smart;
• Bush trusts her;
• She worked for him.

Now let's look at some credentials she does not possess and those that are not apparent:

• She has never worked as a judge;
• She did not go to a top law school;
• She has not articulated views on the Constitution and its meaning or general philosophical views about the role of courts and/or the government in society.

Finally, some of the criticisms from some conservatives (above and beyond the list of credentials she does not possess):

• Her views on important social and legal questions are not clear;
• She has manifested antipathy (at best) concerning the Federalist Society;
• She has said and done some things that might raise questions about her commitment to conservative goals and principles;
• She does not consider the NAACP to be a liberal interest group.

Is there anything I've missed?  (And yes, I realize that there is a lot of overlap within in each list, as well as between them.)

My only thought is that it is possible that she would be an excellent Justice.  But do we really have any reason to think so?  And are the credentials that she does possess actually credentials for this job?  This is not meant to denigrate her, and I'm willing to listen to what she has to say at her confirmation hearings.  I am just trying to figure out why some people do support her, apart for the position taken by some liberals that she is the least bad scenario.

Miers on Bush

She think he is, like, totally, the Best. Governor. Ever.  And way cool.

Unfortunately, I'm barely exaggerating.

All-Access Pass to the Supreme Court? Roberts v. Souter & Scalia

During his confirmation hearings, John Roberts intimated that (subject to further consideration) he wouldn't have a problem with cameras in the Supreme Court.  Legislation allowing for televised proceedings is currently pending in the Senate.

Souter is widely quoted as having said that "[t]he day you see a camera come into our courtroom it's going to roll over my dead body."  Scalia also opposes cameras in the high court, arguing  that "there's something sick about making entertainment out of real people's legal problems. I don't like it in the lower courts, and I don't particularly like it in the Supreme Court."

My instinct is with Roberts.  And I don't understand at all where Scalia is coming from.  Cases that are heard by the Supreme Court have important national implications; they are rarely so simple and personally sensitive as "real people's legal problems."  Indeed, some cases drive this country's political culture and dynamics.  What can possibly be wrong with educating people about how the Court functions?  And given that Scalia is one of the Court's leading lights on political speech and majoritarianism, I would think that he would see open access to oral arguments as a good thing. 

At the very least, the Court could allow for access to some cases, for instance where the parties agree, or where the issue is one of pressing national interest (I'm talking about cases like Bush v. Gore, Roe, Brown, Kelo, Anna Nicole Smith. . . .).

The only thing I can think of is that Scalia and Souter are really concerned about demystifying the Court.  There may be something to that, since one of the few things the Court has going for it is its mystique.  But my gut tells me that Roberts' gut is right.

I'd love to hear your thoughts on this.

O'Connor's Takings Turnaround

Ben Barros has a fascinating post discussing the Justices' conference notes from Midkiff, one of the cases that laid the ground for Kelo.

Roberts, Miers, and the Federalist Society

Back when the nominee du jour was John Roberts, a few liberals expressed concern over his possible membership in the Federalist Society.  Some conservatives were quick to argue that the Federalist Society is not some monolithic conservative brotherhood, but rather a diverse organization representing a wide-range of political, religious, and jurisprudential views.

But now that Miers is the nominee, conservatives seem to be singing a different tune.  Suddenly, the Federalist Society is described as the exemplar of "movement conservatism" and "the most important organization in the legal conservative movement’s history."  In fact, the fact that Miers distances herself from the Federalist Society suggests that she isn't really a conservative at all.

I'll say this much: there is indeed diversity of opinion on the right side of the aisle.

You call this a credential?!

Never mind whether a degree from an elite law school is a necessary (or even important) credential for a Supreme Court nominee.  The Bush administration has trotted out a new "credential" to calm the fears of its religious conservative base: Miers is born again.

The intellectual right is appropriately livid.

I wonder how long the coalition between the anti-elitist/populist/evangelical and the neocon/fiscal conservative/libertarian wings of the Republican party can hold.

(Yes, I am well aware that the "wings" don't break down quite so neatly.  But I trust you take my point.)

Miers

I don't have a great deal of insight into this pick--I mean, who possibly could?

But I do have some quick-hit thoughts:

• If she is confirmed, it will send the message that the most important thing for a nominee is inscrutability.  Had it been, say, Roberts and then McConnell, it would have been clear that credentials are paramount.  But Roberts and Miers are both people without a paper trail on the issues that currently drive the parties' bases.  This has become the driving feature of the nomination game.  (In this sense, I don't agree with Orin that Miers is the anti-Roberts.)
• Cultural conservatives are angry.    Public Advocate has announced that it will actively oppose the nomination.  At the same time, some political liberals will reflexively oppose the nomination under the theory that anyone Bush picks must be bad, and they will seize on her lack of credentials as the principled basis for their reaction.  They should be careful what they wish for, though.  Imagine: if the left kills the nomination (with an assist from the right), it might present Bush the opportunity to slide in a confirmed conservative with excellent Supreme Court credentials--and it would not be easy to oppose such a nomination.  Sustaining two fierce oppositions would be difficult.  And it would be even more difficult to prevent the confirmation of a well-credentialed nominee after attacking the Miers pick for her lack of credentials.
• Won't she have to recuse herself from a number of cases, given her job as Bush's lawyer?

Paging Daubert. . . . Daubert, are you in the building?

Scientists claim that MRIs can be 90% accurate as lie detectors.  How fast before the technology is tested in court?