Tuesday, December 26, 2023

Of-Campus Politics

In the social media universe, the American Sociological Association has come in for a round of mockery and a certain amount of despair because of its presidential theme for the 2024 annual meeting: "Intersectional Solidarities: Building Communities of Hope, Justice, and Joy." The description reads, in part:

The 2024 theme emphasizes sociology as a form of liberatory praxis: an effort to not only understand structural inequities, but to intervene in socio-political struggles....The 2024 program theme focuses on how we can use our understanding of intersectional inequalities and solidarities to help build a better world. Sociologists in a wide range of settings are motivated by the potential to make a difference. This theme calls on sociologists in all of our roles—as students, teachers, advisors, mentors, leaders, applied researchers, academic researchers inside and outside of sociology departments, community-engaged researchers, and public sociologists—to consider how to use sociology to create more just communities and societies....This theme also reflects the “pleasure turn” in sociology, to consider how sociology can contribute to a positive, transformative vision of society....[S]ociology can contribute to a living world, one where solidarity, healing, and growth exist, building communities of hope, justice, and joy.

And so on, with all the expected invocations of jargon and then some. 

It's true, of course, that academics are accustomed to ignoring presidential themes for annual disciplinary conferences. For example, my schedule for the new year already includes ignoring the presidential theme for the 2024 AALS annual meeting, "Defending Democracy," regardless of whether it's a propos. Nevertheless, I confess that I tend to get slightly queasy when I see exuberant or even dutiful academic uses of the word "praxis." That's true partly because the word has become a popular cliché,* but also because it raises questions about, among other things, the academic role; the proper remit of disciplines and scholarship; ideology and politics; interventions that fall outside of one's real expertise and/or show insufficient regard for unanticipated consequences; and popular and political blowback when academics draw wider attention to their potentially idiosyncratic views.

But a little digging offers a different and more comforting way of looking at things. If one examines the CV and personal website of the ASA president responsible for the praxis-based meeting theme, what does one find? The bulk of that person's articles and "public engagement" involve things like op-eds in the Chronicle of Higher Education and Higher Ed Online, work on "inclusive department climates in STEM fields," and things like studies of "faculty work activity dashboards" and methodical scrutiny of faculty evaluations for signs of "neoliberal logics." I don't mean to mock these topics. That's not all this person works on or has been involved in at the level of "praxis," and in any event issues such as faculty diversity and inclusion are very real and need to be addressed. The fact remains, however, that most of the ASA president's "interventions" appear to take place squarely within the campus gates.  

There is a deeper, fundamental truth about the academy here. It should offer some reassurance to those who worry at all about "praxis" and some deflationary effect to those who enthuse about it. The corollary of the corollary of Sayre's Law still governs faculty conduct, albeit under different guises. Most faculty activism, scholarly or otherwise, is neither on-campus nor off-campus, but of-campus. For all the high-blown talk about changing the world, most "praxis" and "engagement" still amounts to the modern-day equivalent of the age-old activity of arguing about faculty parking spaces.  

* Here's the Google n-gram evidence. (And may I say I'm delighted to see such a revival of interest in Latin and ancient Greek!) In law, a Westlaw search of the law review database found 31 articles using the word "praxis" in 1985, 51 in 1990, and 171 in 2000. The average settled around 170 per year until about 2020, which saw a jump up to 209, followed by 250 in 2021 and 276 in 2022. It's no "centering" (68 articles in 1990, 545 in 2022), but it's up there.  

Posted by Paul Horwitz on December 26, 2023 at 11:19 AM in Paul Horwitz | Permalink | Comments (0)

Sunday, December 24, 2023

What is Missing From This Story?

I have in the past written critical as well as positive things here about Clarence Thomas.* And I have written at greater length elsewhere about why we should be leery of the clerkship-as-family approach to clerking, especially when it so frequently turns into the lamentable condition of former-clerk-as-hero-worshipper. So obviously my attention is bound to be drawn to a story titled "Clarence Thomas's Clerks: An 'Extended Family' With Reach and Power." Of course it would be. It was the intention of the story's writers, editors, and graphic artists that the story draw attention. But the story--which has two reporters' bylines, a credit to a third reporter and a researcher, and two people credited for having "produced" it--is striking mostly for what it lacks. With one fairly unexceptional exception, it quotes no "experts." And without exception, it offers no quotes from former clerks for any other past or present Supreme Court Justice. 

In fairness, "expert" quotes in newspaper stories are often worthless, since they frequently are used by the reporter to provide an outside voice for the point they wish to make or viewpoint they wish to share, are used for that reason, and may or may not reflect either the actual expertise of the source or the actual consensus of the field. But given the vast number of former law clerks out there, many of whom are slavishly eager to be of service to the press--even on the record--the absence of quotes from a single one of them is startling. I can't think of similar examples in other "takeout" news features. I don't think it reflects on the universe of former clerks; I think it reflects on the reporting. It's a bizarre absence that surely can't be put down to lack of knowledge or resources on the part of the reporters.

Obviously, what those clerks would have brought as sources to a story on a vast "army" or "network" of "like-minded former clerks" who have become "influential acolytes," occupying positions in "the nation’s law schools, top law firms, the judiciary and the highest reaches of government," is perspective. They might have noted, as the story does not, that six of the nine current justices were Supreme Court clerks and that three of them replaced the justice for whom they clerked. They might have said that most former clerks these days are "like-minded" to their justice and to each other, give or take. They might have said that many of them have sought to advance those like-minded views in a variety of ways, including Supreme Court advocacy, highly paid and otherwise, on the bench, in a variety of influential positions, and also as legal academics.** They could have talked about all their own reunions, gatherings, contacts, and the like. Some of these points are noted in the piece, of course, although generally without examples or illustrations. But actually talking to and quoting former clerks for other justices would have added names, color, and emphasis to those points. Even if they had only trawled the literature of law review tributes to retiring or deceased justices, they would have had no trouble, for example, finding references to the justice's spouse as chief cheerleader, a vital part of the clerk-justice-community, and so on.  

In the end, their presence could have helped the reporters, and readers, in three ways. 1) They could have identified those aspects of the Thomas clerk community and its practices that they think really are unusual, and whether they think any of those aspects are irregular or problematic or corrupt--or are simply what other justices' former clerks do, only more so. I don't suggest they wouldn't have found any unusual and problematic aspects. But the story's nut graf--its version of a law review article's paragraph explaining why the article is important or justified--says only this: "What makes Justice Thomas’s clerks so remarkable, in large part, is their success as loyal standard-bearers of his singular ideology." That is, at best, an "only more so" justification. 2) They could have talked about all the ways in which the aspects of the Thomas clerk community highlighted by the story are not exceptional, how common they are, and whether any other justices' former clerks exceed them in any way--for instance, by occupying more powerful positions. 3) To the extent that other justices' former clerks suggested that at least some of the things highlighted in the story, if not most of them, are common--for instance, former clerks occupying influential positions, or advancing their judge's jurisprudential or political "projects," or spending their careers defending, celebrating, justifying, or practically deifying their former boss--they could have led some readers to wonder either why this story focused on Thomas, or what is wrong and corrupt about this culture as a whole, as a general ecosystem of power rather than as a matter of one particular justice. 

Three reporters, two "producers," one researcher, and 3,431 words. That is epic-novel-length for a newspaper story, and more than the Times generally devotes to a justice, clerk, or former clerk. unless that clerk is marrying a quondam Internet influencer. All that, and just one unexceptional quote from one expert and no quotes from former clerks for other justices. That is just weird, and poor journalism, and a glaring absence.

* One of my posts talked about the complications involved in the modern norm of Supreme Court justices with successful spouses who are active in law or politics, a norm that reflects a larger world of two-career spouses in Washington and elsewhere. It did not suggest that such situations are de facto unethical. It did not quarrel with the extremely abstract and thus almost entirely unhelpful proposition that a justice's spouse has a "right" to "be active in politics," any more than I would say that the President's spouse does not have the "right" to be the chief lobbyist for a major corporation or the "right" to be president pro tem of the Senate. But it suggested that some such situations surely raise broader moral or ethical questions; that in some such situations questions of honor are involved; and that if a justice or other office-holder decided that their spouse's interests should come before their own, it would not be dishonorable or evidence of corruption for that office-holder to give up the office. To the contrary, it might be the honorable thing to do, just as it might be honorable for the spouse to give up his or her desire to be active in politics, for the sake of the honor of the office-holder spouse. I don't see what "rights" have to do with it. Talking about rights is simply a distraction. It doesn't tell you what you ought to do as an honorable person. (In my view, it is not honorable for a judge to decide that he or she is going to stay on the bench for decades and quite possibly until death, although that seems to be a common modern practice. But that's a question for another day.) 

By the same token, it is equally a distraction to talk about whether a justice has a "right" to "accept gifts from wealthy friends." And it is a distortion to suggest that a justice has somehow earned such a right because he or she is underpaid or "incorruptible." This gets things exactly backwards. An office-holder does not gain the "right" to accept gifts from wealthy friends because he or she is incorruptible. Rather, a justice is incorruptible because he or she does things like refuse to accept gifts from wealthy friends, regardless of whether he or she has the "right" to do so.

** The story notes that a "cluster" of former Thomas clerks has ended up at two schools that are described as "centers of conservative scholarship:" George Mason and Notre Dame. It does not say why, other than the enviable talent-spotting and opportunity-grabbing skills of those two schools, that might be. The general suggestion in the story seems to be that this is a project of the schools and/or the clerks, and not a problem with other law schools.   

  

Posted by Paul Horwitz on December 24, 2023 at 01:43 PM in Paul Horwitz | Permalink | Comments (0)

Friday, December 22, 2023

What Getting "On the Wall" is and Isn't

At the Volokh Conspiracy, Josh Blackman asserts, citing media mentions, that the arguments he and Seth Tillman have made about whether the President is an officer of the United States, especially for purposes of section 3 of the Fourteenth Amendment, have moved from "off the wall" to "on the wall," to use a formulation made popular in legal academic-ish circles by Jack Balkin. I think he's basically right. That is not to say they are completely on the wall in Balkin's sense of being adopted by the Supreme Court or by many other courts, although individual judges may sometimes turn to whatever is handy to justify a result. But they have arguably moved into the realm of contestability--into the realm of arguments that must be addressed rather than being capable of being ignored or dismissed with a couple of casual words. Their arguments are moving wallward, at least.   

It is perhaps worth noting--and Blackman does not suggest otherwise in his post--that saying an argument has moved "on the wall" is basically descriptive, not normative. It tells us whether the argument is on or off the map of acceptably plausible argument, not whether it is "right." Calling an argument "on-the-wall" may be somewhat more normative if one believes that if the courts ultimately adopt an argument--and that is not the present status of the not-an-officer argument--then we should believe the argument is sound and true and right. Although many people believe that an argument is "the law" if it meets this condition, I don't know of anyone who goes the extra fifty miles and believes an argument is good and true in some deeper sense simply because courts adopt it. Balkin has also argued in the context of these discussions that when it comes to constitutional arguments, "the meaning of the Constitution is [not] infinitely distensible." That would suggest that an argument must be non-frivolous to move "on the wall." But although the Constitution is not infinitely distensible, it is, especially when combined with various methods of interpretation and additional sources, pretty damn distensible. In less vulgar fashion, Balkin observes that "sometimes it is very hard to tell what the boundaries of frivolous legal argument and nonfrivolous legal argument are."

Nor, as Balkin argues, does the acceptance of an argument as "on-the-wall" tell us much about its fidelity to the Constitution, except in the sense of fidelity as an "activity" or "process" rather than in the sense of sticking loyally and accurately to an original source in some trans-historical way. A lawyer or academic trying to place an "off-the-wall" argument on the wall may talk in terms of fidelity, but that is "simply the way the game of constitutional interpretation is played." Again quoting Balkin, "Fidelity to our Constitution is manufactured" by "making claims in the name of the Constitution"--and doing things, inside and perhaps especially outside of court, to help them stick. That an argument has been moved in this fashion into the realm of "it might stick" doesn't tell us much about its soundness in some idealized moral, normative, or, if such a thing were to exist, non-social interpretive realm. (As Prof. Josh Blackman once wrote, that conclusion may be "quite ironic" to judicial or political conservatives, "in light of how critical [they] have been for decades about the Justices reacting to political and social movements instead of focusing solely on the Constitution." One should avoid crowing about this point, or applying it to "conservatives" with a broad brush. Not all conservatives are conservative, any more than all progressives are progressive. Some conservatives, like other political groups, are living constitutionalists at best, and perhaps more often have little interest at all in "law" in its storybook sense as a purely internal activity, seeing it instead as a fundamentally political project. Also, and more important to me, we all find ourselves in ironies and hypocrisies of our own.)  

In sum, to say an argument has been moved "on the wall" speaks to its status in legal and perhaps popular discourse, and to whether it is now a potential part of conversation in more or less acceptable circles, or whether it is still confined to asylums and Reddit boards. It does not speak to its soundness, rightness, goodness, accuracy, prudence, or wisdom.

I don't mean this as a judgment of whether any of these labels apply to Blackman and Tillman's arguments. Indeed, my point is that I can't say whether any of these labels apply to those arguments--or at least not on the basis of their metaphorical location in geometrical space. As Prof. Josh Blackman once wrote, focusing specifically on the Supreme Court (a focus that made sense in that context, but I would generally open the lens wider), "The notion of 'off-the-wall' [or 'on-the-wall'] is descriptive of the current acceptance of an argument by the Supreme Court, not its soundness or its normative appeal." When Balkin wrote of the journey of an argument "from crazy to plausible," "crazy" and "plausible" simply meant how they are viewed by "most legal professionals and academics," not how "good," in various senses, the argument is. And the corollary of this formulation is that an argument may move back from plausible to crazy if it is rejected by the relevant authorities--although this will still be a matter of its ultimate acceptance or rejection, not its ultimate rightness or wrongness. One story of this Term, I suspect, will be the Court moving a number of the arguments of Fifth Circuit judges back from "plausible" to "crazy," telling those judges who are attempting to push the Court in a particular direction at a particular speed that sometimes their "bat signal" is simply batty and they need to knock it off. Even then, it won't make those rejected arguments "wrong" in a moral or normative sense, although it may suggest that those judges have sometimes strayed into a non-judicial line of activity that might more properly be pursued elsewhere than on the bench.

I would add another observation. Although the process of moving a legal argument to "on-the-wall" status is generally treated as a product of multivarious actors and social movements, Neil Siegel has observed that "constitutional change" is "driven not just by political actors, but also by legal elites." And Balkin has written:

Arguments move from off the wall to on the wall because people and institutions are willing to put their reputations on the line and state that an argument formerly thought beyond the pale is not crazy at all, but is actually a pretty good legal argument. Moreover, it matters greatly who vouches for the argument -- whether they are well-respected, powerful and influential, and how they are situated in institutions with professional authority or in institutions like politics or the media that shape public opinion.

Without suggesting that I am being faithful to Balkin and others' arguments about how social movements drive constitutional change, one might say that some cases in which arguments are moved on the wall have a lot to do with the role of well-respected and influential individuals, while in other cases the change has less to do with such individuals and more to do political movements, parties, and media organizations, whether they are (or deserve to be) respected or not. It seems to me that an example of the former case is the set of arguments about section 3 of the Fourteenth Amendment that actually won in the Colorado Supreme Court, and which were advanced by Will Baude and Michael Stokes Paulsen. It matters greatly that others, including non-legal elites and other groups, got behind it. But the high regard in which Baude and Paulsen are held as scholars has had a major impact. The incomplete but ongoing wallward journey of the contrary set of arguments seems to me more an example of the latter case. It has moved closer to on-the-wall status in conservative media and social-movement spaces than in court. If it moves further still in legal spaces, I think its being pushed by media and movement organizations will have more to do with it than any initiating actions by "well-respected and influential individuals."

I should be clear again that my observation is descriptive, not normative. It is about the status of an argument, not its rightness in some ideal or purely intellectual sense outside of political and legal change on the ground. Baude and Paulsen are well-respected and influential, but that does not, as they would agree, make their argument "right" in that sense. (In fact, for prudential and other reasons I think their argument should be rejected, although not because the President is not an "Officer of the United States." But that is hardly a pure intellectual judgment.) Nor am I rendering a judgment about either the "rightness" of Blackman and Tillman's argument nor the status of Blackman and Tillman, let alone Kurt Lash, as scholars. Lash is clearly and deservedly well-respected. I also find Tillman an interesting scholar whose energy and monkish dedication have been evident throughout his career. ("Monkish," for me, is high praise.) And I regularly read Blackman's blog posts. But I think movements and media, respected or otherwise, have been the prime movers in the struggle for recognition of that side of the argument about section 3.       

Posted by Paul Horwitz on December 22, 2023 at 01:08 PM in Paul Horwitz | Permalink | Comments (0)

Thursday, December 14, 2023

A Perfectly Fitting Shoe

The most interesting and enjoyable aspect of this story is not the fact of Bronx Defenders being "roiled" by political controversy and intramural viciousness. In this case it's over the Israel-Hamas conflict, but Bronx Defenders is always roiling. That element of the story has been well covered by others, notably criminal defense attorney Scott Greenfield and his blog Simple Justice, for some time. He comments on the latest story here.

Nor, although it's relevant to current controversies and embraces far more than the Gaza story, is the most interesting aspect the broader lesson we might take from it: Institutions with a particular and important goal--such as public defenders' offices but also newspapers, universities, etc.--fare badly when they decide that having one goal is less important than having every goal. That is surely true. When institutions with a particular function and skill decide that the necessary corollary of "everything is connected" is "we should do everything, not just that one thing that we do," they not only fail to do "everything," but also start doing the "one thing" worse. They lose public trust and respect; they potentially harm current clients (the story notes examples of opposing attorneys refusing to treat with Bronx Defenders PDs); they alienate current members of the institution and potential allies; they threaten the institution's continuity and even its existence (the current controversy has put the organization's continued funding at stake; see also "universities, funding and public support of"); and the whole problem accelerates and metastasizes through self-replication (see also "hiring, faculty"). As with last week's events, one doesn't want to draw the wrong moral from the story. It's neither that statements by Bronx Defenders or its union were wrong because they were "hateful" or "unacceptable," nor that the organization shouldn't be "silenced" by the "powerful." It's that institutions should focus on doing what they're good at and avoid "doing someone else’s job and probably doing it badly." 

No, the most interesting and enjoyable aspect of the story is what it reveals in the first three paragraphs: that members of the office were outraged by being forced to sit through a mandatory sensitivity training session.  

 

Posted by Paul Horwitz on December 14, 2023 at 09:27 AM in Paul Horwitz | Permalink | Comments (0)

Saturday, December 09, 2023

A Few Comments on This Week's Free Speech Events [EDITED]

[I've made a couple of edits, partly in light of ongoing events.]

"A few" mostly because Howard has done the work, and partly because I cannot comment on all of it. Literally: I only read the transcripts today and while I have read some commentary I have no intention of wading through all of it. I would say in brief that I agree with Howard, albeit with differences of emphasis and leaving aside certain areas I am just not interested in (Democrats vs. Republicans; Who's a Hypocrite Now?; most questions about bad faith, especially if they are aimed mostly at political actors who are elected officials, and not also at powerful political actors who are the heads of multi-million or multi-billion dollar corporate enterprises that are sensitive to the winds of consumer, stakeholder, and public opinion--in other words, university presidents).

The university presidents' answers to (dumb, foolishly yes-or-no) questions were very poorly delivered and basically correct. (Their prepared statements were a little better. But they were written as if in the knowledge that they would be ignored. Most opening statements are. But a better approach would have been to encourage the presidents to speak not in bureaucratic form, but as if writing a letter to a friend asking them to explain what the hell is going on.) President Magill's subsequent volte-face was an abdication of her duty. (But not, so far as I can tell, the reason why she lost her job. Had she done the wrong thing much earlier, she might have kept it, for the wrong reasons.*) The First Amendment protects a good deal of the speech that was complained about--and rightly so. Universities that purport to follow the First Amendment should follow the same standard.

More broadly, words and slogans do have complex meanings and legal implications depending on the understanding of the speaker and the context of their delivery, with that context potentially including the understanding of listeners. (This seems both an obvious and an unpopular point. A good deal of the "dog whistle" literature and its capacious expansion, and much of the discussion of Confederate and other symbols, seems to reject this point, sometimes quite firmly and openly.) Universities, public and private, can, consistent with the First Amendment, regulate speech more and in different ways in particular contexts and for reasons directly related to their core functions. When it comes to professors speaking way off their brief or in improper ways in particular contexts involving the direct performance of their duties, such as in the classroom, for example, they should do so. But they cannot and should not willy-nilly regulate all speech on campus, such as student speech in protest, both for reasons of the First Amendment and because doing so is inconsistent with other purposes of the university, whether or not students enjoy a freestanding right of "academic freedom" regarding all such speech (they do not; it's a misapplication of the term). And the fact that they cannot and should not do so should not be altered on the basis of terms such as "community," "harm," "sensitivity," and the like, a conclusion that does not require disparaging those concerns but does require rejecting some of those arguments as bases for universities becoming more censorious. 

To beat a dead horse of my own, the most relevant question seems to me to be one of enforcement--consistent, even-handed, accompanied by due process, and also real, existing, and sometimes and quite properly punitive. There must be real enforcement even if that requires the expenditure of university resources, even if it requires police in extreme cases, and even if it outrages students or professors. For me, the most important sentence in Howard's several posts is this one: "Some unprotected speech and conduct--occupying buildings, interrupting classes,...lacks protection regardless of its antisemitic content." (I omitted two examples that I think are more complicated and less worrisome as such.) We could add other conduct to that list, such as vandalism, assault, and direct harassment. It's the job of universities that value their mission and that value both freedom of speech and academic freedom to enforce its rules barring such conduct. Without it, whatever statements universities make about what what is and isn't permitted are not much use. None of it should happen without due process, but it should happen. If that requires extra university resources--including using those resources to identify students, who understandably would prefer to do as they wish without the university identifying them--then so be it. And it should happen consistently without regard to the identity of the actors or the viewpoints they are advancing. I will add that one bit of good news that seems to have come out of the week's events is a wider recognition--or remembering--that it is actually a good and necessary thing to guard against heckler's vetoes. That realization won't mean much, however, without actual enforcement of the rules regulating or forbidding them.  

Universities ought also to make clear that they will unequivocally reject student demands that the university refrain from investigating and disciplining them for misconduct of this sort. "We will occupy this building unless and until you promise not to discipline us for occupying this building" should be met with a flat "No" every time. If that seems to go against the Spirit of '68, I can only say that some of what the student movements did in '68 was in fact simply wrong.    

Universities have a deeply checkered recent record on this point, in my view, and it is precisely for this reason that a) they are now facing these problems and b) they also face charges of inconsistency and hypocrisy. Howard asks: "Given that we cannot predict the future, what should universities do? Is an acknowledgement of the change--which no one has done--sufficient? Must it include a mea culpa (or kaper lanu--a detailed list of past improper firings, expulsions, and sanctions against faculty and students?" If you'll forgive the upward inflection, I would answer, "Maybe?" I'm not nuts about commissions of inquiry, which are generally tedious and often serve as acts of whitewashing. But an honest examination by universities, including the issuance of a public report, might be in order. The charge of such investigations might include how they have dealt with campus disruptions and violations, whether they have acted consistently, what process they have had in place for adjudication and enforcement, whether punishments have been meted out at all and, if so, whether they have been consistently and fair, whether they have acted consistently on such matters as the recognition or rejection of student groups, how they deal with "disruptive" or "controversial" speakers, whether they have a sound policy on funding for protection for such events or one that imposes chilling burdens on groups that invite those speakers, and how it intends to act going forward.

If it were undertaken seriously, such a report might result in some embarrassing results and make some news. It might also result in some learning and some leavening of criticism. I do not think universities have an easy job of it: it's tough to identify who is misbehaving in the moment, enforcement responses may be calibrated to avoid escalation, punishment shouldn't be excessively lenient but doesn't have to be draconian, and so on. But all these things should have (or have had) equal application, and some ex post complications could be anticipated and headed off ex ante. Maybe even an unsparingly honest report would look better than I expect; maybe it would look worse; surely sometimes it would identify particular officials who deliberately interfered with or manipulated these policies or stood by when their duty was to act, for reasons of politics or bias, and who belong in different work. It might also identify students who were disciplined, formally or informally, for protected speech. But yes, even if I think the primary question is one of looking forward, surely some retrospection and study is in order.

Two final points. First, this is all about what happens on campus, not off campus. I remain concerned about the dynamic off-campus, while noting my earlier point that it's the general dynamic and the resources involved that concerns me, and that this doesn't mean employers should be utterly barred from rejecting, say, a prospective employee who has a hobby of ripping down posters, among other things. (That example seems so two weeks ago, but there are still around 140 posters' worth of remaining hostages to go, and Hamas appears to be strangely reticent concerning the whereabouts, well-being, and fate of ten women still in captivity.) Students should neither be subjected to a McCarthyite campaign, especially one that fails to distinguish between the outrageous and the merely wrong or objectionable, nor categorically (and quite impossibly) protected from ever being publicly shamed for what they say or do. And although the story is more complicated by the fact that more or less internal stakeholders were involved, I would say something similar about university presidents. Perhaps some should stay and some should go, not so much in for last week's events as for the weeks, months, or years before that; but not because of mob pressure. 

Finally, I note the letter shared below by Orly. The Israeli university presidents are not wrong to find the American university presidents' testimony lacking; everyone does, even those who agree with important aspects of it. Their statement about what freedom of speech in the United States requires is much more questionable. I think the letter is best understood not as showing that the American university presidents were wrong on that point, but as revealing a fundamental difference about what free speech in general entails and what it must not protect. Indeed, I'm surprised I haven't seen that argument more in the American context. Of course I have seen general incorrect assertions that the First Amendment does not protect "hate speech." But I haven't seen many full-throated arguments that recent events on campus and elsewhere suggest that the regnant interpretation of the Speech Clause is wrong and should be rejected in favor of a more confined one. As long as so many people are changing places (but not everyone--right or wrong, some have indeed been both consistent and even-handed), it would have been much more interesting to hear Rep. Stefanik arguing that the First Amendment should not be interpreted to protect "words that wound." She would gain strange new respect in unusual circles, to the extent that the people in those circles have not themselves changed places.    

* And an extra note about President Magill's departure, which came as I was writing the post, and now about pressure to force the resignation of Harvard's president, Claudine Gay. I have no particular brief for or against the three university presidents who testified last week. There are ample reasons to be critical of universities' commitments to free speech and the consistency of that commitment regardless of the speaker or issue involved. Those reasons far precede last week's events. A good-faith course correction would be a good, even an urgent, thing. But, in keeping with the actual purpose of congressional hearings, last week's testimony involved three prominent universities, not necessarily three of the worst universities on these issues, Again, what the presidents actually said was correct, although tone-deaf and not necessarily consistent with their actions on other controversies and with other speakers or issues. Whether they should stay or go, their universities' response should certainly not be to alter university rules of conduct in ways that are even more destructive of free speech. And members of Congress are even poorer at making university staffing decisions than university boards of trustees. "One down, two to go" is not what I would consider a genuinely constructive step forward in getting universities back to basics.   

Posted by Paul Horwitz on December 9, 2023 at 01:59 PM in Paul Horwitz | Permalink | Comments (0)

Monday, December 04, 2023

Tushnet on Ephemeral and Enduring Constitutional Scholarship

I've written here before that I always find Mark Tushnet's posts on legal scholarship at Balkinization must-read stuff. I wish he posted more often. Happily, he has given us three interesting, related posts--here, here, and here. In them, he explores what makes for "ephemeral" and "enduring" legal scholarship in constitutional law. His overarching view is that "a great deal of doctrinal and normative scholarship in constitutional law is quite ephemeral." Scholarship that "develops the normative basis for specific outcomes in real constitutional controversies" is hampered by the felt need to "track, to some significant extent, contemporary or recent Supreme Court decisions," which "change in normatively relevant ways often enough to make work that satisfies [that] condition [ ] ephemeral." "Normative discussion of the structural Constitution," in which "authors identify a current problem arising from settled understandings about that Constitution and propose structural reforms that would alleviate that problem," is generally overly focused on some recent event, and generally involves a long-enough time frame that "by the time you might be able to get those changes made, things have changed so much that" that the work is again renedered ephemeral. Enduring works of constitutional scholarship, in his view, "identify some things about the deep structure of the topics they cover. They provide a vocabulary for discussing the issues within their scope no matter what those issues are," in a way that is both less time-bound and more removed from immediate political controversies. Tushnet sums up as follows:

I’m led back to something I wrote in the first of these posts: that normative scholarship that focuses on recent Supreme Court cases tends not to endure. Maybe the point is that mostly that scholarship thinks that it’s getting at something deep (about distributive justice or equality or …) but it’s actually doing no more than present a contemporary partisan position as a deep truth. Again, the article[s] that endure let us think about the issues we care about no matter what side we take in contemporary controversies.

The posts are long and well worth reading. (I would say "long but well worth reading" but--come on. Look who's talking.) They are interesting, exploratory, impersonal--he is talking about a phenomenon, a "sociology of the legal academy"; he's not throwing stones or calling anyone's work crap--and tough-minded, written in the knowledge that his conclusions about ephemerality not only embrace some of his own work but, and perhaps more importantly, that of friends, allies, and colleagues.  

Seeing these posts makes me reflect yet again that I don't see as much serious, impersonal, tough-minded writing about scholarship in our field as I would like these days. By "about scholarship" I don't mean just meta-commentary about what we do, although I surely mean that too. But I don't even see as much simple substantive criticism of other scholars' work as I would expect--not good criticism, and certainly not good criticism of one's fellow travelers' work. I tend to blame political and cultural siloing, along with a heavy dose of therapeutic culture, which is not good for intellectual work. The relatively monocultural politics of the legal academy don't help. (There are differences in those politics seen up close, of course.) But that's not the whole of the story. Broadly speaking, I see a good deal of scholarship and public-facing, ie. social media, discourse in which any serious criticism is directed only, and merely, at one's adversaries, at people outside one's silo. And that's if one is lucky. Often enough, writing outside one's silo is simply disregarded, or it's dismissed in extravagant, shallow, and uninteresting terms. The better instances of criticism, when they appear, are not so much thorough as prosecutorial, with all the strengths and limitations that entails.

Within one's silo, there's an awful lot more praise--also extravagant, shallow, and uninteresting--than criticism, at least publicly. This seems to be a function of an academic culture in which "mutual support" is seen as an unalloyed good and apparently entails an absence of tough, impersonal criticism--again, at least publicly. I understand the roots of this, but it seems to me that not seriously criticizing one's friends or politically aligned fellow scholars is tantamount to not respecting them or taking them seriously as scholars and intellectuals. (Mark has been reading through his library and recently had tough words for my first book. I could have cried about it, I suppose--except that his actually engaging with the book is a lot better than some meaningless, enthusiastic blurb that signifies friendship rather than actual interest.) What I see on social media, when I visit it, is a great deal of "Fabulous new article by..." and "Excited to share X's terrific new piece," followed by a round of mutual compliments. Perhaps it was a terrible mistake for scholars to befriend each other on social media.

I suppose this is a form of mutual support. But law school and legal scholarship are most definitely markets, and what it mostly looks like to me is marketing, logrolling, and reciprocal flattery. Surely there is a substantial element of hustling in all this, because I can't imagine anyone enjoying it for its own sake or learning from it. At least with respect to the legal academy, the difference between "mutual support" and "life under late capitalism" seems to me to be rather hard to discern.  

Posted by Paul Horwitz on December 4, 2023 at 04:12 PM in Paul Horwitz | Permalink | Comments (0)

Sunday, December 03, 2023

Swing Justices and "Legacies," Again

Some of the celebrations--quite justified--and remembrances of Justice Sandra Day O'Connor, focusing on changes on the Court since she retired, have focused on her "legacy" and worried that it is being undone. She was evidently not happy about that either, according to this excellent but odd obituary. (Excellent because of its detail and clean prose; odd because of its urgent insistence, not entirely respectful to her memory, on fixing her in the public annals as a liberal rather than a conservative, a feat that is achieved partly by excoriating the current Court but mostly by relegating a great many of her views and opinions to the 43rd paragraph and lower.) This reminds me that we went through the same discussion quite recently. In September, a Washington Post story argued that former Justice Anthony Kennedy’s "mark is fading fast—and is already erased in some areas." At the time, I suggested in response that for a number of reasons, a swing justice's legacy is bound to be evanescent.  

Not to repeat myself, but the same thing applies here--and not only because of the current Court, despite its 2021 and 2022 terms. (My guess at the moment is that the 2023 term will be more of a term that uses the Fifth Circuit as a foil to signal that it has its limits and will move only when it wants to. Of course I could be wrong, and there's little point in predicting the future, since it will come along presently anyway.) On a closely divided court, a swing justice doesn't get a legacy; she (or he) gets power instead. That's no small thing, and it can conduce to the good. But that power derives from the balanced instability of that court on which the swing justice serves as the fulcrum. Inevitably, with a change in personnel, one of two things will happen: the balance will shift decisively in one direction or the other, depriving the swing justice of her pivotal power; or a different fulcrum point will emerge, giving some other justice the swing-vote power and putting the former swing justice's compromises in play once again. In Justice O'Connor's case, both things happened in reverse succession: after Justice O'Connor retired, first Justice Kennedy became the swing justice and then, after both were gone, the balance of the Court shifted decisively and neither justice's compromises were likely to remain in place. To quote a sage:

The "legacy" of a swing justice does not have much to do with the future at all. The value of a swing justice lies in the present: in striking compromises that smooth things over for a little while in an area that is contentious on and/or off the Court. That's not necessarily a bad thing and may be a very good one. But it should be celebrated for what it is: a compromise, a fix for an immediate need, a bit of gaffe tape at a useful moment to make sure the car doesn't go careening in one direction or the other. What it is not is a recipe for a long-term "legacy."...

 

Posted by Paul Horwitz on December 3, 2023 at 11:46 PM in Paul Horwitz | Permalink | Comments (0)

Tuesday, November 28, 2023

Some Thoughts About the Latest Law Review Imbroglio

The news last week was that the Harvard Law Review editorial board had voted "not to proceed with publication" of an online blog post that is more or less about the international law status of Israeli military action in Gaza, despite that post having been duly commissioned by the blog's editors and having gone through the process that culminates in its being posted. Here is a story about it in The Intercept; here's one in the Guardian. You can read the article itself at The Nation, which decided to run it itself, albeit not without succumbing to the desire for a clickbait headline. And here is a note from the Law Review's editors. I limit myself to the information in those sources; if more illumination was provided on social media, I did not seek it there. I'm late to the party by Internet time, but I offer some thoughts below. I try to make any assumptions or unanswered questions clear. 

1: One thing to note at the outset is that the writing was slated to run on the HLR's blog, not in the journal or "even" the HLR Forum. The Guardian article and the Nation's preface to the actual post make that clear; the Intercept article mentions it in passing. Both the Intercept and the Guardian do employ some slippage in their language, repeatedly emphasizing the prestige of the parent journal, referring variously to the writing as an "essay," an "article," and so on, and lamenting that the post will now "never be published with the Harvard Law Review." That makes for more eyeballs. But still: it's just a blog post! No one takes blogs or blog posts seriously. (You can decide for yourself whether I'm speaking with irony, accuracy, or both. Regardless, henceforth the editors of PrawfsBlawg, taking a page from the folks in Cambridge and the iron law of title inflation, will be known as "Online Chairs.")

Perhaps that suggests that discussion of the controversy could be drained of some of the language of high drama. That doesn't alter my opinion about the wrongness of the editors' ultimate decision. But it does suggest that some of the Olympian verbiage and prestige-mongering might be toned down. The post will indeed "never be published with the Harvard Law Review." But it was never going to be published in the Harvard Law Review! On the other hand, it is also relevant on the other side of the ledger. One does not reasonably expect a blog post to be scholarship or to meet the same standards that might be expected for the journal itself. However vainly, one does expect everything a scholar writes on his or her subject, even in a blog post or amicus brief, to be accurate and honest. But a scholar can surely opine or editorialize in a blog post, including about current events, and including doing so in ways that a scholar might avoid in a scholarly article. (This time I am obviously speaking ironically. People editorialize often and wildly in law review articles, often about current events, and on matters both within and far outside their expertise.) To the extent that reactions to the decision not to publish focus on its not being sufficiently "scholarly" or not good enough to warrant publication, a question which is only relevant if that was the reason for the decision not to publish, those standards are misplaced.  

2: Assuming the facts are as reported, the post should have been published. I assume, per the Intercept, that the post was "solicited, commissioned, contracted, submitted, edited, fact checked, copy edited, and approved by the relevant editors" and that all this happened "in line with the Law Review’s standard procedures" for posts on the blog. If so, and absent something like a late discovery of plagiarism or defamatory material--which presumably would still have been dealt with through normal processes--that should be that. The Law Review editors' note states that after the regular process had been followed, "the full body met and deliberated over whether to publish a particular Blog piece that had been solicited by two editors.  A substantial majority voted not to proceed with publication." It had been more than solicited by this point. One could imagine an argument that the full board can always, in theory, make a final decision not to proceed with publication of any sort of piece within the HLR "brand." But I assume it does not generally do so. ("One last time while we still have the galleys in hand: Is everyone okay with running this Foreword?") I see no relevant reason, and have read of none, why it should have acted differently here. The post should have run. The editors erred.

3: It is never a bad time to question law review processes (and substance!). That goes for the processes involving its online supplements and blogs and other outlets as well as the journal itself. Since there was a process and it was apparently followed, the piece should have been posted. But that doesn't mean the process makes sense or is an academically sound one. I'm not questioning the good faith of the "Online Chairs" in this instance. But obviously, if (as the description of the process suggests) they have autonomy in their choices, it's a system that is vulnerable to unchecked bad decision-making or abuse. (The usual abuses, for law reviews, would be and are favoritism, deal-making, careerism, and so on, but certainly naked politics belongs on the list too.) Maybe the Harvard Law Review doesn't actually need a blog. (Who does?) Maybe if it has one, it should limit itself to non-substantive or milquetoast posts. Maybe if it runs substantive pieces, there should be greater checks on solicitation practices and a further checkpoint before acceptance and publication. That's especially true in that the actual value of the blog is not that it's a blog, but that it gets to call itself the Harvard Law Review Blog, so that authors can list it as such on CVs and journalists can talk about it as if it is an august publication. Maybe it will now change the substance or processes of its blog accordingly. Maybe it should! But not midstream.

4: There is certainly nothing wrong, in my view, with a writer on international law arguing, inter alia, that Israeli action toward Gaza after October 7 constitutes genocide, or that (if I read the author's piece in the Nation correctly) a proper framework must be employed to understand its actions and that framework can be found in the events of 1947-49 and their sequelae. The argument might or might not be wrong, but it's a pretty standard line of inquiry and hardly unspeakable (if "unspeakable" is even a relevant limitation on scholarly writing). The piece itself seems to me to be more of a series of assertions than a set of arguments, but, again, it's just a blog post. (Nor is assertion without argument absent from law reviews themselves.) And it seems to me to use airy abstractions, scholarly abstruseness, and grad-school filigrees to obscure acts of terrible violence while complaining about how others have obscured acts of terrible violence with airy abstractions and scholarly abstruseness. But that's standard-issue stuff for scholarship. While most of the piece is outside my subject matter, I do think its first, second, and sixth paragraphs are silly and melodramatic and are also neither especially accurate nor at all healthy in their assertions about what legal academia is or what it should be. (Are "leading law schools and legal scholars in the United States" really going around "fashion[ing] their silence as impartiality?" Why should one care about "leading law schools" as such on this subject anyway, other than for the usual reasons of elite self-regard? Why on earth would one turn to law professors, as opposed to moral philosophers or, say, just plain folks, when "moral clarity" is "urgent?" Did I miss the required 1L class on moral clarity?) But all this is par for the course, for many blog posts and no shortage of legal scholarship. And none of this appears to have bothered the editors as such, let alone the specific editors who apparently were given free rein to solicit and run blog posts. If the Law Review's email to the author is to be credited, its reasons for spiking the post had nothing to do with any "substantive or technical aspects of [the] piece."

So, again, it should have run. If a bunch of editors elsewhere on the journal then decided the piece was objectionable, they could have asked the blog editors to hasten their work on the response piece that I naturally assume those editors had already solicited. If none was in the offing, for some strange reason, they could have insisted that one be solicited. (It could have been on the main issues, but given the paragraphs I mention above, I think Stanley Fish could have penned a bang-up response.) If the online editors refused to run one, that would be a good time to force a vote or revise the journal's blog policies.  

5: In the Guardian piece, the author of the post calls the decision to kill it an act of "discrimination" and censorship. The first charge seems inapt. The general sense of the reporting (including an email from one of the online editors) suggests that some editors "oppose[d] or [were] offended by the piece" but that the larger concern was that the piece might provoke a reaction from members of the public who might in turn harass, dox or otherwise attempt to intimidate our editors, staff and HLR leadership." Opposition and offense are not legitimate reasons to kill a piece that has already been through the process. They are not, for that matter, legitimate reasons to kill any piece, in any corner of the Law Review or in any other scholarly forum, at the beginning of the process, regardless of the topic of the article.

I think there is room for considerable sympathy on the final reason, however, even though it doesn't alter my conclusions. To the extent that the concern is professional (editors worrying about "risk[ing] their futures"), I doubt that running the blog post would have had consequences at all but the most foolish places; it's a far cry from the kind of conduct that law firms waved their hands about. But the prospect of online identification (I'm not sure calling it "doxxing" is fully accurate; that non-precise term seems to be getting ever more imprecise) and harassment seem much more likely, no matter that running the piece once it had been accepted would be the proper decision or that the journal might run subsequent posts criticizing the first one.

I've already written here several times that I'm deeply disturbed by that dynamic, especially given the extra charge that social media gives it, and think any civil libertarian should be. I do not think there is a right to not be identified or not be criticized for even proper conduct, let alone improper conduct, or that there necessarily should be. If, say, you have spent several years constructing a public persona, however phony, that calls for crushing corporate America, it's kind of okay for a corporate law firm to consider you a bad fit, even if its usual tendency has been to ignore applicants' views as long as they have the right pedigree. But one can still oppose the large-scale operationalization of that sort of mob or crowd pressure--as some have been saying for many years now--and the subsequent weak-kneed response by employers and other institutions, and think that this dynamic is harmful to civic, and civil, discourse.

In any event, this is a far cry from some of the more ridiculous statements that have been made along these lines. This is not "we demand the right to publicly smash windows, or block or occupy buildings, or tear down posters, but you know, in 'private,' and definitely without professional consequences." Yet mobs, and individuals who engage in individualized harassment, are not especially good at drawing these distinctions. So I can sympathize with the student editors' fears, and I think their decision is best understood as one of self-preservation rather than politics, let alone discrimination. But those fears and my sympathy don't change their job or the obligations attached to it. A wrongful action that I can sympathize with is still wrongful. (I assume fear, and not politics, was behind the decision of the Harvard Law Review editors to deny membership to Jonathan Lubell in 1953.)   

6: This incident may be unusual. But it's not unique. It ain't all about Gaza and the political sensitivities around it, or Bill Ackman or "doxxing trucks." If this was a wrongful act of censorship, then so was the effort first to bowdlerize and then the outright cancellation of Larry Alexander's piece in the Emory Law Journal not so long ago. If the HLR editors demanding that an accepted publication be spiked despite its having gone through the usual processes constitutes a (successful) effort at censorship, then a similar label should attach to the (unsuccessful) effort of Oxford University Press USA employees to get the press to "reconsider" its publication of Holly Lawford-Smith's book Gender-Critical Feminism. The same goes for the American Indian Law Review's abrupt rejection, also of reasonably recent vintage, of an article it had already agreed to publish.

If the more general argument is that the editors wrongly took political considerations into account instead of simply publishing a plausibly acceptable scholarly writing, I welcome it! But any honest reader of law reviews in the past several years (not to speak of years past) must acknowledge that their selection process has been quite political--increasingly so--even (or especially) when such selections are not visible. (Sometimes they are. When you run a whole issue or symposium devoted to a particular politically inflected substantive view and exclude any questioning, doubting, or critical views, even when it's obvious that such views exist and that there is ample room for serious, good-faith scholarly questions and criticism on the topic, that's a visibly political decision, as well as a bad one.) As I said, I doubt politics were at the bottom of the editors' action here. But if people believe otherwise and still have a problem with it, they will not lack occasions for alarm. 

Posted by Paul Horwitz on November 28, 2023 at 03:22 PM in Paul Horwitz | Permalink | Comments (0)

Thursday, November 09, 2023

Sneaking in Early...

...to get ahead of my esteemed co-blogger on this front-page (or should that be front-site?) New York Times story on free speech on campus in the current environment, headlined, "After Antisemitic Attacks, Colleges Debate What Kind of Speech is Out of Bounds." Since journalism is only a first rough draft of history, and in many cases even good newspapers no longer aspire to that, it's shooting fish in a barrel to criticize any individual story. But I would like to point out some obvious gaps and missed opportunities in this one. 

First, and with the customary acknowledgment that reporters are not ultimately responsible for the headline--although the newspaper is responsible for putting the right headline on the right story--there's not much of a showing in the piece of colleges debating what kind of speech is out of bounds. Most of it is about students and non-students debating the question; very little is said about faculty or administrators debating the question, other than arguments about what statements to issue, the usual tedious exchange of faculty "letters" and "open statements," and the note that universities have established the inevitable committees to address anti-Semitism on campus.

That's especially unfortunate since the story omits one of the more salient recent examples of universities acting: Brandeis University banning the campus chapter of Students for Justice in Palestine. Brandeis, it should be said, is a private university. More than that, it has not formally pledged to treat itself as if governed by the same First Amendment rules that would govern a public university. But is has committed itself to "encourag[ing] the airing of the widest range of political and scholarly opinions and to prevent attempts to shut down conversations, no matter what their topic." My own reading of Brandeis's statement of principles on free speech is that none of the caveats it draws cover its reasons for banning the SJP chapter. Its statement of principles says speech that is "directly incompatible with the functioning of the university" may be restricted. The university statement banning SJP relies on superficially similar words with crucial differences: it says that the chapter's advocacy "goes against the values of Brandeis University." Incompatibility with values is not incompatibility with functioning. More specifically, even direct incompatibility with institutional values is not the same as direct incompatibility with institutional functioning--especially at a university, where arguing about institutional values is one of the key ways in which a university functions. But I come neither to praise nor to bury Brandeis's decision. I simply wish to point out that given the headline, this was an obvious news item to include in the story. 

Second, a key part of the story's framing is that the debate "is inflamed by a generational divide surfacing on campuses." What divide? The divide over whether voters approve or disapprove of Israel's actions in Gaza following Hamas's terrorist acts on October 7. Does it fail to include any other relevant generational divides surfacing on campus? Why, yes: changing views, which have been emerging and increasing for several years, over the scope of free speech on campus and elsewhere, and which are increasingly supportive of shouting down speakers, banning hateful speech or speech that offends minorities, and so on. Surely, to quote eminent activists, that is an important part of "historically contextualizing" the debate covered in the story. (Perhaps it doesn't get there because the only academic it quotes in the story is "a historian who studies and supports student activism," rather than one who just studies it.) 

What the story might do with that piece of the puzzle could vary, of course. But it would be relevant to at several other aspects of the story which are more or less omitted. The first, which I think is hinted at but not directly addressed in the piece, is the status of Jews as a religious or ethnic group: where they fit in the picture of "marginalized" or "minority" or "oppressed" groups for whose ostensible benefit contemporary students are more willing to restrict speech. If your picture of how, or how much, free speech applies varies based on such categories, then that status matters. (It does not matter to civil libertarians and used to not matter to the ACLU.) The second is the question of what sorts of "harms" count as relevant for free speech purposes: Clear and direct? Purely dignitary? Harms to safety and well-being, or harms to the feeling or perception of safety and well-being? And related to this is how clear the speech must be in endangering whatever is to be protected. Are "dog whistles"--a term that is almost as capacious as "harm" itself--enough?

I should think that all of these questions would affect the issues addressed in the Times story. In particular, they would help illuminate one of the central issues, and divisions of opinion, in the piece: the question of which speech is anti-Israeli, which is anti-Zionist, and which is anti-Semitic. The broader your conception of what counts as harmful speech, both in terms of how explicit the speech needs to be and in terms of what counts as harm, the more of this speech would count as anti-Semitic, if you were applying the kinds of tools and metrics that have been increasingly common on campus and increasingly popular with students. If you are inclined to be stricter in your definition of harm, and stricter in your evaluation of when speech is directly versus indirectly offensive, then you would take greater care to separate anti-Semitic speech (which might still be protected, albeit subject to strong condemnation) from much anti-Zionist speech and even more anti-Israeli speech. (To be clear, while these distinctions suggest that not all the speech complained about these days is anti-Semitic, it's not like one has to look hard these days for speech that is clearly, vilely anti-Semitic, on or off campus. It's certainly there and not exactly hiding.)  

Where one would go from there is up to the reader. One path, of course, is the "hypocrisy" route. I find it valid but uninteresting, and certainly unhelpful in suggesting useful and principled responses going forward; only short-term strategic responses. But it is one possible avenue of discussion. 

My own inclination in responding to the story would be to suggest something like the following: 1) If universities face embarrassment and difficulty at the moment, they are reaping what they have sown over the past decade as they have embraced expanded definitions of harm and safety, shown timidity in responding to any number of free speech issues, and whole-heartedly cooperated with a vision of students as vulnerable, juvenile, and familial in their relationship to the university instead of one of students as responsible, and thus potentially culpable, adults who are one constituency in a community devoted to vibrant and potentially upsetting discourse. 2) As the "over the past decade" suggests, one can hardly treat the current moment as one that appeared out of nowhere. It, like, totally didn't. 3) In examining the debate and their own obligations, universities that purport to be devoted to free speech should take care not to conflate the different categories of hostility listed above--to Israel, to Zionism, and to Jews. Even if all three categories might be protected in the abstract, it would certainly help lend clarity to their responses and to the discussions of others. 4) Even so, they would probably be still better off focusing less on the content and more on the conduct. Threatening or assaulting a student, ripping down her leaflet, preventing her from speaking, or occupying a campus building that she has an equal right to enter and use violate basic campus disciplinary rules, which are preconditions for a useful, uninhibited, robust, and wide-open free speech environment, regardless of whether the poster is being ripped down because the vandal is anti-Zionist, opposed only to Israel's current actions, or a Jew-hater. (It is easy to misread "uninhibited" and "wide-open" as suggesting a world of public discourse without rules of order. They mean no such thing.) 5) Once they have focused on what constitutes misconduct, they should actually grow a spine and discipline students who violate those rules. Of course they should do it even-handedly and fairly, but they should do it, and should not pretend that they're utterly defeated by a gauzy face mask. Nor should they be cowed by the possibility of student anger in response. Nor should they worry that if a student is identified--by the university--as engaging in misconduct, and penalized--by the university--for that misconduct, that student might find it harder to work for McKinsey or the Third Circuit. That falls under the category of "tough luck," even for those of us who worry about the larger speech dynamic and about public pressure to identify and penalize individual actors. (That any and all of this is referred to as "doxing" suggests how vapid that term is.) 6) Universities that maintain and actually enforce the kind of disciplinary structure needed to facilitate an environment of active, pluralistic speech, regardless of whether the misconduct is carried out in service of "good" or "bad" views, will find that more speech is possible and can actually be heard. Those that duck their disciplinary responsibilities, for whatever reason, will find themselves in a continuing mess. At best, they will find themselves having to parse what counts as "good" or "bad" speech, which they will do badly and under pressure. At worst, they will find that there continues to be more "bad" speech, less "good" speech, and possibly, even probably, less speech altogether. 

That's just my take. Other conclusions could be drawn from a better story. But it ought to have been better. The failure to include some of these obvious items rendered it less successful in fulfilling the mission of a modern newspaper: to facilitate largely pointless debate on social media.    

Posted by Paul Horwitz on November 9, 2023 at 09:53 AM in Paul Horwitz | Permalink | Comments (0)

Monday, November 06, 2023

An Addendum to Howard's Post

I seem always to post when I want to disagree with Howard. I'm not sure this post quite falls into that category, and I should add that if Howard provokes me to write, that is to his credit. One reason I have not written about every recent incident is that I think my last two posts fairly represented my views and were fairly generally applicable, and I don't want to repeat myself unduly. As I wrote previously, I worry about the current speech dynamic, for views unrelated to the viewpoints on offer. I make no absolute claims about what prospective employers are or should be allowed to do, not least because as an employer I might make similar decisions. But I do think a generalized atmosphere in which a combination of public pressure and social-media leveraging are used repeatedly to encourage risk-averse institutions to fire, penalize, or reject people for even objectionable speech that would ordinarily be treated as none of those institutions' business is deeply unhealthy. And I don't think the invocation of McCarthyism is wrong or premature. McCarthyism, too, was largely a private enterprise, and relied substantially on employers' (including universities) aversion to bad publicity. That said, a couple of additional notes are in order. (I don't address the hypocrisy point 

Although I am not a fan of Mr, Ackman's actions, I think there is a more charitable reading available of the fourth recommendation in his letter. He writes:

Fourth, the University should publicly reach out to students in an effort to obtain other examples of antisemitic acts that should also be carefully investigated, and for which appropriate disciplinary steps should be taken. Because Harvard students are notoriously focused on their job and career prospects post-graduation, disciplinary actions by the administration for failure to meet the University’s standards for appropriate conduct that become part of a student’s permanent record should serve as an effective deterrent to overt antisemitic acts on campus. No law firm, corporation or graduate program will hire or admit an antisemitic or racist student. I note that the recent letter to the deans of law schools around the country signed by many of the top law firms in the U.S. has, I am told, already begun to have an effect in reducing antisemitic acts at the Law School.

Howard describes this as Ackman asking that Harvard "facilitate the process of identifying racist and antisemitic students for future employers or grad schools." That may well be what Ackman wants. And I personally find distasteful the first clause of his sentence, seeking student informers. I suppose it could be said, in tu quoque fashion, that this is just a specific form of encouragement of a "callout culture" or "culture of accountability." But then, and despite the many defenses that were offered for it, I also find callout culture worrisome.

Nevertheless, a charitable reading--or, perhaps, adaptation--of the core part of Ackman's claim is that universities should actually enforce whatever codes of conduct they have, that that should include disciplinary action, and that disciplinary decisions should not be hidden under a permanent veil. That, or at least some version of that recommendation, is not unreasonable. Students who openly violate university disciplinary rules should be, you know, subject to discipline. In particular, students who deliberately violate university rules that are part of that institution's infrastructure of free speech in a shared environment--say, by tearing down leaflets they disagree with, or attempting to prevent invited speakers from entering the room where they are scheduled to speak, or preventing them from being heard for the length of a speech, or pelting them with eggs or flour or other ingredients, or occupying university spaces improperly and preventing their use by others, or engaging in vandalism or property destruction--ought actually to be disciplined, at least in any university that cares about the exchange of ideas and that honors its own values. Universities should be fair and even-handed in applying discipline, but not supine--which they often are, and which emboldens students, professors, and other visitors on campus to entertain the absurd belief that they have a right to violate university policy without consequence. If the basic rules are sound and the conditions of fairness and even-handedness are met, and a student is disciplined for such conduct and as a result faces future employment consequences, it's hard to see that as a problem.

(I would add, since it seems oddly necessary, that even though I disapprove of mass efforts to identify various individuals and broadcast their identity, that does not mean those individuals have some absolute right of privacy, on or off campus. You do not, for instance, have a right to engage in a large public protest on the lawn of a university, a protest whose whole point is to be seen, while forbidding others from photographing you.  Expelling the person photographing you from the lawn so that you can publicly protest in private, including by means that in other circumstances would be called harassment or battery, is not a permissible response and should be met by university discipline. Likewise, you do not have a right to rip down posters in sweet solitude.)

Perhaps this is an overly charitable reading. It's certainly not intended as a blanket defense of any particular person or action, especially in light of my general concerns about the current environment and its effects on a culture of free speech. But it's worth engaging in, to help distinguish between actions that are destructive of that culture, and actions--including disciplinary actions resulting in adverse consequences for students who violate university rules--that are necessary conditions for such a culture, and in which universities have arguably been either timid or failed to be even-handed in recent decades. 

My second caveat has to do with his link to an interesting interview with Professor Genevieve Lakier. There's plenty I agree with there. But, even keeping in mind reasonable differences of opinion over matters of degree, I find it bizarre that Lakier seems to treat these phenomena as a sudden eruption. She draws a historical line that starts with McCarthyism, jumps suddenly to the immediate post-9/11 period, and then disappears again, only to magically reappear precisely at the moment in October 2023 when people began targeting students and others who have engaged in speech criticizing Israel.

A lot happened in that last interval! Civil libertarians and others concerned with free speech culture more broadly have been raising precisely these concerns about speech culture and its intersection with things like Internet mobbing that encouraged employers to cut people loose, publishers to cancel book contracts, and so on for the last ten years. Some of them, who have continued to express their concerns about these issues in the context of anti-Israeli advocacy, even wrote a letter about it in Harper's a while back; you could look it up. Lakier describes this moment as involving an "anxiety about political speech or the extent to which private organizations have participated" in these matters. That is precisely the concern that has been voiced all the while, and the speech that has been the subject of pressure and reprisal over the last decade was indisputably political in any meaningful use of the word. Certainly those advocating for "consequences" during that period saw those issues as political, not simply "cultural," if such a distinction is possible. And publishers, universities, and others who bowed to pressure over the last ten years have acted for exactly the same reasons that have been in evidence lately--some measure of sincerity or a sense of incompatibility with institutional values, and an awful lot of timidity, fear of bad publicity, fear of donor or client anger, fear of one's own workers, students, or other constituents, fear of being thought of as having taken the wrong side on an issue, and so on. During that period, many expressed concern that institutions like businesses--or universities--taking an ever-more-expansive position on what their "values" or "vision" are would have negative consequences for public discourse, as those institutions penalized more-or-less private speech that they could now label as incompatible with those values. Perhaps it is now clearer to more people that there is value in institutions sticking to their core purpose.  

Lakier tells the interviewer that "it just all feels like a repression of speech that we haven’t seen for a while." I share her concerns, but I'm decidedly not sure about the "haven't seen for a while" bit. I share her hope for "pushback" and a "return to normal," by which I take it she means something like the general settlement that usually applied (with countless violations) between around 1960 and 2015, one that we might characterize as believing in and defending a 'mythical' "vision of a neutral First Amendment." But I would note that people have been arguing for this for some time. And the fact that the ACLU has now apparently taken note may be of less comfort to some of us, given the views of some of its staff in the ACLU's Romero incarnation, than it seems to be to her. 

Posted by Paul Horwitz on November 6, 2023 at 04:01 PM in Paul Horwitz | Permalink | Comments (0)

Wednesday, November 01, 2023

Chauvin on Gap-Filling

Recommended! As befits a five-page paper, Noah Chauvin's abstract is short: "Legal scholars obsess with filling gaps in the literature. As this essay explains, that is a mistake." (I hope his next piece is on the undue expansion of the length of article abstracts and the reasons for that.)

Chauvin rightly focuses substantially on what I think of as means-of-production or (to use a trendy phrase with no more or less accuracy than characterizes some of its invocations) political-economy or economy-of-prestige reasons for the obsession, noting how much of it has to do with appealing to law review editors and/or gaming the system. One might, in Kerrian or Kerresque fashion, offer two charitable notes in favor of "gap-filling," however. The first is that, for even the academic reader of the published product, there is value in explaining clearly what the article does that has not already been done.

The second, notwithstanding Chauvin's argument that a gap-filling approach "hamstrings true creativity" because it is "reactive" and "inherently limiting," is that law is a technical discipline and a discipline about technicalities. There is thus often a genuine need to answer difficult, unanswered, potentially "small" questions. That's all the more true if, as Chauvin urges, legal scholars let fly with more imaginative or expansive projects, which inevitably will lead any number of real and important gaps to be filled. And the need is compounded by another political-economy phenomenon, which lies somewhere at the intersection of legal academics' desire to be fancily published, their capture by their own politics, and their unconscious tendency or open willingness to shape and distort their scholarship to achieve particular political results. This phenomenon is the tendency to sweep the hard questions or troubling implications created by their own arguments under the rug by describing them as "beyond the scope" (when they are actually within the articles' scope but politically inconvenient) or calling them questions "for another day" (which never seems to come around). Of course, one or both justifications depend on that being the actual reason for the gap-filling article, and on that article actually filling a gap, instead of simply saying it's filling a gap in order to get through the article review process. And anyone who has heard law professors in private settings describing the things they are willing or eager to do strategically to get an article published will find that there is such a thing as too much charity on these points. 

Chauvin notes correctly that there is a "robust tradition" of legal scholarship about legal scholarship. I wonder whether it is quite as robust these days. For one thing, it requires criticizing other scholarship, and both political siloing and the current trend of encouraging the idea of scholarship as a mutually supportive community--which often curdles into mutually supportive back-scratching and self-promotion-by-proxy, especially on social media, and which sometimes arguably lends support at the cost of failing to show the genuine respect that criticism entails--make that less likely. (I think this is one reason book reviews in law journals have become not only more rare but more awful.) For another, such pieces don't place as well, if at all, and, as Chauvin observes, a professionally advantageous placement is the name of the game. They do place in journals like the Journal of Legal Education, or at least used to, but I have seen fewer of those articles in the JLE of late. Finally, articles of this sort are typically short- or medium-length affairs, and--again, at least partly for political economy or economy of prestige reasons--legal academics are writing, and journals are running, fewer of those. Blogs used to help fill that gap, and Prawfs itself certainly has a robust tradition of posts on the subject; we would have run Chauvin's article as a post or series of posts just a few years ago and are happy to host him as a guest any time. Some of my favorite Mark Tushnet posts on Balkinization have been his brief and sharp observations about what he's seeing in the law reviews. But, you know, blogs. They're so 2011.

In any event, we need more of it, and specifically we need more scholarship about the trends and tics that characterize legal scholarship in the current age, which is at least as ambitious as ever without a willingness to say it's ambitious, and which is further untethered from a clear set of agreed-upon scholarly motives or practices.   

 

 

Posted by Paul Horwitz on November 1, 2023 at 11:23 AM in Paul Horwitz | Permalink | Comments (0)

Friday, October 20, 2023

A Yes and a Couple of Noes for My Co-Blogger

One point of agreement, one point of disagreement, and point of, if not disagreement, then polite dismissal concerning Howard's post below. (As an update, I thank Howard for his gracious reply above. Whatever the scope of our agreement or disagreement, I feel honored to be sandwiched by him.) 

1) I agree that the hateful outburst of Jemma Decristo, who is a professor at UC-Davis, would not qualify as a true threat and therefore would be protected expression. (Not wholly incidentally, she is not a history professor, as Howard writes, but an American Studies professor.) Of course it should be treated as such, and one should resist the urge to move from a reasonable position--condemning it, pointing out that she is yet another person who proves that being a professor or having a doctorate may lead to a rebuttable presumption that one is educated but tells us nothing about whether one is or is not an idiot, and so on--to demanding her firing or even, in my view, her removal from the classroom. (I think the line is closer on the latter point. But I also think that arguments that extramural statements make students feel less safe, or are de facto harmful, and thus justify removing them from required classes specifically or classroom work more generally, are based on dangerously expansive conceptions of harm, are subject to the risk of abuse, and in fact are abused by ostensibly respectable universities and law schools.)

Howard stops short of specifying which sorts of actions by her department or university would or would not fall within the scope of either free speech concerns or speech culture concerns. I would worry about a dynamic in which Prof. Decristo was removed from her apparent position as an undergraduate advisor mostly to avoid bad press to the university or as a result of public pressure. I would worry a lot less about a dynamic in which her actions lead her department, or the dean of the UC Davis faculty of arts and sciences, to realize that they accidentally allowed an idiot to become an undergraduate advisor, and that they ought to rectify that error. After all, "free-speech maximalists," like "free-speech minimalists" or "cancel-culture minimizers," agree that speech has consequences--even, sometimes, state-enforced consequences. They simply believe that the state must be highly constrained in imposing them across a variety of circumstances and for a variety of reasons, and some believe that even where private consequences are concerned, we should be highly wary of a dynamic that is too willing to impose those consequences, often wildly disproportionately, through a combination of mobbing, no-platforming, social pressure, demands of conformity, leveraging financial and other forms of power, and so on.  

2) I think it is untrue to say, as I think Howard does on a fair reading of his post, that it would be unreasonable to believe that this speech crosses a First Amendment line that is not crossed by the other sorts of speech he describes--namely, "celebrating the October 7 massacre, the fire at the Israeli embassy in Jordan, the firebombing of the Berlin synagogue, etc." Of course there are perfectly sensible arguments for distinguishing between speech that celebrates violence and speech that threatens or incites violence. It is neither arbitrary nor irrational to distinguish between someone saying, "I'm so glad Mike is dead--serves him right" and the same person saying, "I'm going to kill you, Steve" or "folks should go out and kill Marcia"--even if (as I suggest is also true of Prof. Decristo's words) one concludes that in context, even the words "I'm going to kill you" ultimately don't end up qualifying as a true threat, or as incitement for that matter. 

I should say that to conclude that it is neither arbitrary nor irrational to draw a distinction between speech celebrating violence and speech threatening violence doesn't mean one can't argue that the line is ultimately less clear than that conventional wisdom suggests. And I might observe on the flip side that some critics of "free-speech maximalism" argue that First Amendment law has been too protective of threatening speech and too narrow in its definition of true threats, and that we ought to extend the category of unprotected speech to a wider set of online activities, including "doxxing," different sorts of online mobbing, and various online threats or harassing acts. Those writers might ultimately conclude in good faith that Prof. Decristo's words don't fall within even their generous recommendations for greater regulation or liability, just as some conventional civil libertarians might conclude--wrongly, I think--that her words do count as a true threat. But it ought to be a live issue for them. Presumably some of those writers ought to believe, as a matter of principle and of the application of their own work, that Prof. Decristo's speech is punishable and ought to be punished. After all, she suggests that the whereabouts of a host of journalists--and their children!--can be easily discovered, and that "they should fear us." That's the very meat and drink of any number of scholars who write counter-civil-libertarian pieces about the First Amendment and online speech. They might add therefore add Prof. Decristo's outburst to their list of things to write or tweet about--with, I trust, the same conviction they bring to other cases.

3) I am more inclined simply to dismiss Howard's "many people" move. I'm not so much doubting or denying it as suggesting it is unhelpful. I have indeed seen some writers, some of whom are civil libertarians as opposed to people with a commitment to free speech in narrow partisan circumstances, reacting to current events in a way that seems to depart from their usual views on free speech law or speech culture, either in terms of result or in terms of the level of scrutiny and concern they apply. We all use shorthand like "many people" from time to time, law professors no less than anyone else; newspapers, for instance, frequently resort to the phrase "many people" when a reporter wants to voice his or her own view. Sometimes it has value; sometimes it is accurate.

But especially with regard to online speech, it is a particularly unhelpful measure. It is probably equally true that "many people" who are dubious of old-fashioned free speech types, or have argued that students are particularly susceptible to "harms" from professorial speech owing to power imbalances, or who favor an expansive view of what constitutes online threats or harassment or incitement thereto, have not rushed to condemn Prof. Decristo or argue that she may justly be disciplined--and that, in fact, they have not even sauntered along to suggest that this might be true of any of the professors who have offered violent or bloodthirsty remarks in the last couple of weeks. But I assume that's not universally true. Perhaps some have condemned such speech according to their own standard; I assume others simply have lives, have not seen a story that's a day old at best, and may never see it; and I assume still others may feel that way but are busy frying other fish. I think it would be unfair to use a locution like "many people" to criticize those writers who treat a great deal of speech, especially online speech, as "harmful" and regulable but apparently have not found occasion to condemn any speech of this sort in the past two weeks.  

For the same reason, I find "many people" unhelpful here--somewhat glaringly so, when it is accompanied by a link to a single individual. Perhaps it would be better to return to Howard's earlier measure and ask something like, where has FIRE been now that the shoe is on the other foot? (Apologies for dipping into the cesspool of social media.)

Posted by Paul Horwitz on October 20, 2023 at 03:23 PM in Paul Horwitz | Permalink | Comments (0)

Thursday, October 12, 2023

Yes, it is

It is difficult to talk about whether something constitutes "cancel culture" or not, since "cancel culture"--like "cancel culture doesn't exist," "critical race theory" as an epithet, "abolition," "taking back," "defund," "woke," and many other descriptive phrases and assertions that serve as substitutes for actual thought--is not a natural kind, but a bumper sticker whose definition is contested, indefinite, manipulable, and subject to endless motte-and-bailey exercises. For what it's worth, however, if cancel culture is defined, roughly and somewhat lengthily, as "a culture or cultural phenomenon in which social media and their dynamics frequently if not invariably play a principal role, in which objections to some alleged speech or action (one that is often misdescribed by the person or people complaining) move, sometimes immediately and en masse, from disagreement to an effort to ensure that the person loses jobs, job opportunities, existing and future speaking engagements, and so on, generally by leveraging social media and relying on bandwagon effects and other people's and institutions' fear of bad publicity or a similar fate," then yes, I would say that the NYU law student discussed by Howard has indeed been subjected to "cancel culture." I would add that this dynamic seems to me wrong and unhealthy in her case, as in many or most others. (I exclude the reported efforts of fellow students to remove the student from the position of SBA president for speaking ultra vires while purporting to represent the association. That does not seem illegitimate to me.)  

Because I--along with many or most other halfway serious people who worry about this dynamic, I think--believe that this is precisely a question of an unhealthy cultural dynamic (and an unhealthy cultural-technological combination) rather than some alleged absolute rule or formula, I do not find my general concern about this dynamic outcome-determinative in any individual case. One can dislike the dynamic and its seeming increased prevalence (including under-the-radar instances, as well as unreported actions or inactions resulting from chilling effects, like avoiding certain issues in the first place) while still evaluating individual cases, just as one can (for example) worry about government overuse of classification, believe that it is becoming too frequent or casual, and still conclude that a particular instance of classification was justified.  Obviously, opinions on this student's treatment will differ, especially in the heat of the moment.

In my case, I tend to think that the rescinding of the offer was a mistake. (Frankly, I go back and forth on this and, as I say below, I would hardly be offended by a contrary conclusion. But I do indeed tend to think so, mostly because of the dynamic behind the rescission.) I believe more strongly that Winston & Strawn's public rescinding of the offer was wrong. I find it indicative of the very dynamic that worries me. An institution that finds a person or his or her views repugnant, and/or decides with sincerity that they are a bad fit for the institution in light of their words or actions, may indeed decide not to hire that person; but it has no particular need to do so with fanfare. An institution that not only gets rid of someone, but makes sure to do so in a public statement, is that much more likely to be acting in at least some measure, if not completely, to propitiate a mob and dowse bad publicity rather than because of any considered decision about how that person will do the actual work of the institution. It's that dynamic I find highly unhealthy for a halfway decent culture of free speech and pluralism.  

Where I might differ with some is that I think the discussion around such issues would be greatly benefited by a dose of truth serum and some stripping away of the customary bunkum. I am happy to assume that Winston & Strawn in fact possesses some "firm values," although, honestly, my reaction to law firms and other business institutions--including universities--engaging in broad invocations of "values" is to worry about what comes next rather than to feel good about that institution. I am happy to assume that the student was sincere in their statement, although the statement itself strikes me as nothing but one rote delivery of tiresome bumper-sticker slogans after another, requiring nothing in the way of serious thought or commitment. (Obviously that tendency to rely on slogans is not limited to any particular political affiliation.) I am happy to assume that many people were genuinely outraged in their reaction to the statement, partly because outrage comes cheap online but also because I had a similar, if more ironically inflected, reaction to it myself.

But I think a truly candid statement by the law firm would have been something like this: "Frankly, we don't care much what our associates think. Why would we, as long as they're getting their work done and recording their hours correctly? But this statement has caused tsuris for us with the public, with important clients, and with our own colleagues, and it's just easier to cut her loose than to deal with even the few more days of bad publicity we would suffer. It's not at all clear why we focus on hiring graduates of high-ranked law schools instead of top graduates of the 150 other law schools out there. But even graduates of high-ranked law schools are a dime a dozen, and it will be easy to replace this one." A candid defense of the student would run something like, "Of course the student's statement was horrible. But they probably barely meant it, and they'll probably believe something different but equally idiotic next year. Anyway, if you got rid of every person with dumb views at any institution with a population larger than Paul Horwitz [and I'm not so sure about me, either], we'd all be out of a job." A candid criticism of the student would focus on the awfulness of the student's statement, rather than on ginned-up nonsense like an invocation of the bar's fitness rules. I don't presume to speak for the student. But I rather assume that the view of many similarly minded people in this situation would be roughly like Justice Black's opinion in Everson: "My views on pressing matters of social justice and the remaking of societal institutions are strong. They are urgent. They will not bend. And they do not prevent me from keeping my head down and doing document review on behalf of Raytheon so I can collect the outsized paycheck of a big-firm associate." None of these sentiments are the kind of thing one engraves in stone. But they're human-sized sentiments, and I think they would be a more candid description of everyone's actions and views.  

As I said, I don't think my views on the cancellation dynamic (especially in its connection to social media) are outcome-determinative about this particular individual and this particular case. And I don't think the fact that they are not outcome-determinative says much one way or the other about whether the dynamic exists or is worthy of concern. The view that the tort of defamation should exist, and even sometimes be available to public figures, hardly prevents someone from believing there are good reasons to cabin its scope, especially in cases involving public figures. People sharing my concerns about "cancel culture," as I've defined it, will surely disagree about particular applications. Thus, I will hardly be offended if someone shares my general concerns but thinks there were sufficient reasons justifying the law firm's actions here. But if Howard's question was non-rhetorical, then I would answer: Yes, it is an instance of the dynamic I'm concerned about, however one comes out on the individual case; and yes, even in application, at least one person thinks the law firm probably acted wrongly here.   

(I take no view on Howard's closing shot. At its core is an empirical question, and to answer it one would have to troll through social media, as to which God forbid. I'm not sure why he focuses on "the right" rather than on everyone who worries about cancel culture, since that larger population is ideologically diverse and not immune from hypocrisy, error, or tunnel-vision either. Also since he focuses on "the right," I assume he is not referring to FIRE, since that would be a misdescription, depending on how he defines "right" and "left" in the first place. [I do think FIRE ought reasonably to be concerned about this case, at least as a cultural rather than a legal matter.] And I should think that since he limits himself to those who think that "cancel culture is the worst thing ever," he is excluding from his count many people for whom cancel culture, actually and appropriately defined, is a) a genuine concern that b) is still subject to some degree of individualized consideration, like most things and c) a concern among many others rather than the worst thing ever, whatever that might be. And he might have added a word or two about those who belong to the "usual 'cancel culture doesn't exist' crowd" but have discovered a newfound concern over online crowds whipping each other up to demand someone's firing.)  

Posted by Paul Horwitz on October 12, 2023 at 03:29 PM in Paul Horwitz | Permalink | Comments (0)

Wednesday, October 11, 2023

One Observation About University "Statements"

One generally has, or has not, an appetite to wade into questions when they touch on matters that are greatly upsetting to many people (including me); I generally don't, since words fail or are repetitive or superfluous. And it is perhaps harder, or at least more unwise, to wade into such questions by way of general policy discussions, given the strong feelings of such moments. Still, allow me to make one observation about university "statements," the presence or absence, or strength or weakness, of which have been much discussed in the past few days.

As a matter of background, I believe that as a general rule, "universities" should not make statements on any issues except those which directly and immediately affect the mission and function of the university. For one thing, "universities" in this context does not mean "universities." It means university offices of public communications or other non-professorial apparatchiks writing under the name of the president or trustees of the university, neither of whom speak in any useful sense for other shared governors of the university and neither of whom generally take a sounding of those other governors before speaking. Why professors, who spend most of their time enumerating the ways in which their administration does not speak for them, should want PR statements issued on the deeply affecting issues of the day from such figures is beyond me. For another, university presidents have no relevant expertise on most of the issues on which they pronounce--and that is assuming, charitably and generally fictionally, that the pronouncements come from them personally and not from an even more unqualified flack. Third, and as we have seen, once such a practice takes hold, its scope widens ever further, the dynamic surrounding such statements favors ever more statements, the controversy surrounding the issuance or non-issuance of such statements and their contents becomes ever greater as more statements are issued, and whatever comforting or galvanizing quality they are supposed to have becomes ever weaker. Finally, I believe they are based on a false and clichéd premise, one that universities are happy to trumpet in speeches and sales materials: that the university is a "family" or a "community." The first is false, and arguably harmfully so: few disappointments are so bitter as discovering that your "family" is in fact nothing of the sort, and cannot or will not do everything for you that a family does. The second is truer, but it is more accurate to say that the university is a particular, special-purpose community, defined by a shared commitment to a common academic enterprise.

Better, then, not to issue such statements at all, except insofar as they touch very directly on matters occurring at or of immediate concern to the university qua university--and without widening and attenuating the meaning of "immediate concern" in the now-usual ways, involving vague and/or disingenuous invocations of safety or security or harm. The Kalven Committee's Report on the University’s Role in Political and Social Action is quite right on these questions: "The university is a community only for [ ] limited and distinctive purposes," "cannot resort to majority vote to reach positions on public issues," and should limit itself to speech on matters which involve either specific managerial or internal functions or which go directly to "the very mission of the university and its values of free inquiry." (Statements on such issues by sub-units of the university, such as individual departments, or, most of the time, by disciplinary organizations, generally again speaking on questions as to which they lack expertise and issuing statements as to which they have not sounded out their members properly, raise questions of their own. The answer to such questions is not "no," but "God, no.")  

Notwithstanding the committee's wisdom on these questions, universities have gotten hooked on the statement habit and it's unlikely they will kick it easily. (It is not an incidental or coincidental fact, but a fundamentally connected one, that such statements have exploded at the same time that universities have embraced a heavily consumer- and market-oriented conception of themselves. University statements of concern, solidarity, and the like are not impassioned reactions to, but part and parcel of, "late capitalism" or "neoliberalism" or whatever your stock phrase of choice is.)

In the present moment, that means that some universities, which have been slow to offer statements or have offered anodyne ones designed to offend no one, and which therefore invariably offend many people, have been accused of pusillanimity, specifically as their recent statements are compared to other recent statements on other issues.

This leads to my single observation. Such statements may indeed be pusillanimous. But given the dynamic I described above, which every inhabitant of the university and of many other institutions besides is now fully familiar with, even the more full-throated statements that universities have issued in recent years on matters beyond their expertise and immediate function have generally been issued out of fear, under pressure, to head off protestors or the press, or for PR purposes closely related to the desire not to alienate potential tuition-payers, donors, foundations, and other internal stakeholders or external pressure groups. No doubt conviction has played a role too, but it has been only one factor and not necessarily the most important one. In short, we should not limit ourselves to the suggestion that university statements issued in the past couple of days have been pusillanimous. Instead, we should take a moment to consider the possibility that the kinds of recent statements that are now being held up as examples of what universities say when they really care or are really brave are, at bottom, equally pusillanimous.    

  

Posted by Paul Horwitz on October 11, 2023 at 10:53 AM in Paul Horwitz | Permalink | Comments (0)

Friday, September 29, 2023

A Painfully Timely Paper on Aging and, in This Case, the Judiciary

Public discussions of aging high officials seem especially prone to be subject to an enormous amount of bullshitting--including, sometimes, on the part of experts on whom the public ought to be able to rely. Sometimes, and perhaps particularly when it comes from gerontologists and other relevant medical experts, one reason for this appears to be the same thing that drove some questionable, or questionably overconfident, statements from public health officials in recent years: a concern about messaging, even if that concern means massaging the truth. Sometimes, it appears to be a worry about encouraging (or being accused of) ageism. The former is an understandable concern, of course, and the latter is predictively reasonable, as that cudgel has been and will be employed frequently and sometimes utterly insincerely for purposes of batting away concerns. It is accurate to say that every individual's lifespan and the effect of aging on them is better evaluated individually than statistically. It is absurd to deny that aging frequently affects cognitive function and that the older one gets, the closer one's clock runs to zero. It is pure bullshitting to assert that age is "no more relevant than eye color," to share the paraphrased assessment of one academic. (I am unsurprised that this expert is described as specializing in public health as well as aging. It's understandable that public health officials should care about messaging and that a subset of public health experts should care about how to study and design effective messaging. But the public-facing aspects of that discipline strike me as both necessary and clearly its least reliable element.) 

It is thus useful, on the principle that we are more likely to speak plainly and honestly about the subjects that strike us as less urgent, immediate, or important, to see a new paper titled "The Effects of Lifetime Tenure and Aging in the United States Federal Judiciary," by political scientists Ryan Black, Ryan Owens, and Patrick Wohlfarth. Here's the abstract:

Many federal judges in the United States are older and serving longer than ever before. Lifetime tenure combined with advances in human life expectancy have contributed to an increasingly aged judiciary. Yet, this aging comes with likely costs—the effects of cognitive aging on the behavior of federal judges. We apply prevailing neuroscience theories of human cognitive aging to the work of federal judges and examine the potential costs of aging to judicial behavior. We show empirically that aging influences how judges behave across a variety of judicial tasks. Aged judges require more time than their younger colleagues to draft their opinions. Moreover, despite taking more time to complete tasks, older judges increasingly turn to simplistic cognitive shortcuts when bargaining with their colleagues over opinion content, interpreting law, and casting their votes. These findings raise important normative questions about lifetime tenure and the resources the federal government currently allocates to the judiciary.

And here is some relevant material from the article:

Generally speaking, executive functioning relates to the cognitive skills necessary to reason and moderate behavior. As Harada, Love and Triebel (2013, 741) put it, executive functioning involves “the ability to self-monitor, plan, organize, reason, be mentally flexible, and solve problems.”...Studies show that executive functioning declines with age. Indeed, “[t]here is a sharp decline in executive functioning abilities after the age of 60” (Drag and Bieliauskas 2010, 80). In particular, working memory declines with age....Cognitive aging also leads to a decline in reasoning abilities. Reasoning ability touches on logical thinking and the ability to solve problems and draw appropriate conclusions. Powell (1994) finds that reasoning is an “early casualt[y] of the aging process” (86). Salthouse (1991) finds significant age-related declines in inductive reasoning (among other aspects of cognition)....Aged judges may also rely on cognitive heuristics more than younger judges.

Note that the last sentence is based on an assessment of likelihood--that judges who, for age-related reasons, are slower to process information, but retain the same caseload and expectations, may turn to cognitive short-cuts. It is also relevant to the study because it is testable. What is related but less testable and, to my mind, more important is the question of self-monitoring and mental flexibility. Ideally, a judge or other official will be adaptable and respond differently to different situations and changing facts. But if that individual is increasingly inflexible and non-adaptive, that fact will not be readily apparent to outside observers, who may see it as consistency and determination rather than as a symptom of impaired functioning. 

It's an interesting paper. It caught my eye earlier this week. But is no accident that I post it on the morning that Senator Dianne Feinstein's death has been announced. Of course her health and mortality were a question to be evaluated on an individual basis. But also of course, past a certain age the possibility that decline might occur or had already begun, and that death would arrive sooner rather than later, was real and could be predicted with greater certainty based on the simple fact of her age than her eye color.

Happily, judges and senators are easily replaceable. Things get a little trickier with officials occupying offices headed by a single person. In both cases decline is harder to spot, especially to the degree that these officials are surrounded and managed by staff, and far from guaranteed. But neither ought it to be a surprise, and it is certainly not the role of any expert to treat its possibility as being utterly random and no more predictable on the basis of age than on the basis of eye color. Nor is it the duty of any respectable flack or member of the public to engage in the pretense that any mention of such concerns is either baseless or bigoted. Senator Feinstein's death is appropriately big news; but it is hardly surprising news, and neither, given her age, was her cognitive decline. Neither Feinstein's death nor her decline leading up to it were or should have been any more surprising than the possibility that any or all of, say, President Biden, Donald Trump, Justice Thomas, or Judge Newman might already suffer from cognitive decline, or die and/or undergo significant cognitive decline some time in the next few years. Pretending otherwise, for purposes of voting or news commentary, is deceptive--or self-deceptive, and self-deception is one of the major risks of bullshitting--and terrible planning.

To anticipate and discuss this is neither morbid nor disrespectful. To the contrary, bullshitting on the question seems more disrespectful and in some ways more ageist to me than blunt discussion. Very little of the commentary concerning Justice Ginsburg, prior to her death, said simply and squarely that while her death at any particular moment could not be predicted, it was becoming ever more likely that she would die fairly soon, even though the fact was apparent. Is it really more respectful of an older individual's humanity and agency to treat his or her advanced age, and likely decline or death, as being as random as chance, so that one could proceed to argue and pen op-eds and tweets about what ought to be done as if she were not in the room, so to speak, and had become a mere object rather than a subject? Clarence Thomas and Samuel Alito's ethics have become a lively public concern. But is there no room to note the fact that they are 75 and 73, respectively, and quite mortal, rather than (for those who defend and celebrate them) treating them as presumptively undying, uncrumbling edifices? I think it would have been far more respectful to Feinstein to say that her guaranteed vote was more important to the commenter than her humanity or well-being or capacity to reason freely, rather than to engage in the pretense that she was fine, a pretense that was kept up for an unknown period of time before people began going public with their concerns. (One might add that finally deciding to share those concerns publicly may have been as much a dehumanizing matter of worrying about securing her replacement than a respectful acknowledgment that she was failing. We will know more when, as seems nearly inevitable, more comes out about how long and how serious her decline had been, now that her status is clear and her political power at an end. Nil nisi bonum notwithstanding, people are far more willing to share tales of dead politicians and judges than live ones.) It would be more respectful to Biden, and more morally transparent, to say that given the degree to which the staff can run things, the increasing possibility of his decline or death in the relatively near future are less important than which party holds the presidency, and thus that one doesn't really care how he's doing. One can agree or disagree with the position, but that is the position, and nonsense about eye color and the unknowability of the future should be treated as such.      

Posted by Paul Horwitz on September 29, 2023 at 10:51 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, September 20, 2023

Dress Codes and Dress "Code"

I was surprised that the New York Times coverage of the change in Senate dress codes did not draw a closer connection to one of its own stories, which appeared in the paper on Sunday, a couple days after Majority Leader Schumer--quietly and late on Friday, with the inevitable purpose of that timing: to bury the news--told the Senate of the change. That story appeared in the always target-rich Style section. It focused on the clothing choices of "Gen Z politicians," which it described as chock-full of Doc Martens, berets, and mismatches. As is fairly common, the sub-headline to the story drew on a passage from the story, but altered and subtly it, in a way that called attention to the story's actual meaning. The sub-headline reads, "Many of the country’s youngest elected officials hope to express authenticity through their clothing choices." The actual line in the piece is that "some [of the lawmakers interviewed] said their clothing choices reflect a priority to appear authentic."

I have added the emphasis but one hardly needs to. One doesn't need a keen eye to spot the difference between being authentic, whatever that means, and having "a priority to appear authentic." Perhaps the subhed could be rescued if one read "express authenticity" as "convey authenticity" or "perform authenticity." But I don't think that's what it was trying to convey. And what it does seem to convey is certainly not expressed in the interviews themselves, which features many clothing labels and bold assertions, little originality, and occasionally, a clearer glimpse at intentions. Thus, one lawmaker says, a little sadly and a little strategically, "I feel like there’s a direct connection between Doc Martens, and a certain style, and progressive young people." Another says, "I wear what I want to wear" and "I'm my own gal"; that turns out to mean Ann Taylor, Ralph Lauren, and Calvin Klein, but not in matching sets. And a third--again with the Doc Martens!--"has also been known to wear a black beret, a style of hat adopted by the Black Panthers, at public appearances," and says "it felt me." But it is also necessarily a costume--more specifically, an "I am invoking the Black Panthers" costume--and he acknowledges that it has become a politically useful recognition tool. Someone from an organization that supports candidates from historically marginalized groups tells the paper, "They can only be who they are....They are just unwilling to pretend in a way that is really appreciated." The story of course makes it clear that a quote like this is itself a politically useful performance of independence and authenticity. It's uniforms all the way down.

It's hard not to read this piece alongside the Senate dress code change, which has occasioned two Times stories: one is a reasonably straightforward recounting and the other is a reasonably straightforward bit of partisan propaganda and apologetics under the guise of a "Congressional Memo." The gist of that rather Internet-meme-heavy piece is that this is a bunch of "hand-wringing" by mostly Republican hypocrites--that the change raises the genuine (and to my mind interesting) question "what it means to show respect for the body in which one serves," but that the complainers live and act too awfully, in ways the column lists at length and with relish, to have any standing to object. For good measure, it raises the "how dare you worry about issue X when you could be worrying about issues A-W" objection, a favorite of social media and almost never a sound one. In fairness, if the piece is itself a bit of a performance, the people complaining in the piece are themselves performing, making a loud show of outrage for the cameras, which is why they are predominantly Republican. For their own electoral and political reasons, the Democrats would naturally complain or express concern mostly in private, and I don't doubt that some or even many have.

My own view, as an institutionalist and as one more in an endless number of people who believe in the importance of shoring up our institutions and respect for them (even if often undeserved) in a time of increasing assault on them, and perhaps increasing indifference to the idea of institutions as such, is that the change is bad and a bad idea, and that it's understandable that Schumer, who is not much of an institutionalist, did his best to do it all on the QT. For possibly the first and last time in my life, I think Rep. Marjorie Taylor Greene, despite her own manifest and multivarious failings in the fields of institutionalism and basic dignity and respect, gets it right when she says, "Dress code is one of society’s standards that set etiquette and respect for our institutions." That is correct, the messenger notwithstanding. And, of course, the leading indication that the change is neither progressive nor evolutionary is that it applies to the senators alone and not to the many officers who work hard on the Senate floor daily, or the many staffers who regularly visit the floor. (The second Times piece, once it has almost exhausted its partisan purposes, gets around to this in the last two paragraphs of the story, although even then it does its best to paint it as a typically Democratic concern, despite the fact that only one Democrat voiced it and the story otherwise paints most Democrats as being right about not objecting.) The proper description of a rule change that applies only to the members of the Senate and not to its staff is decadent and aristocratic.

I should offer two caveats, one institutionalist in nature and one personal. The first is that I am of course not opposed to changes in a dress code over time. They are inevitable, just like all institutional change, and frequently positive. Some of those interstitial changes strike me as perfectly in keeping with the idea of a respectful dress code even as they mark real changes and efforts at inclusion. Religious headgear, for instance--the newsier Times piece notes that Rep. Ilhan Omar wears a hijab in the House--is perfectly respectful, both to oneself and to the institution; it's neither sloppy nor casual as such. Other changes are no doubt subject to debate; as someone with two fused ankles who relies on comfortable footwear to avoid shuffling around like Frankenstein's monster, I am sympathetic to the appearance of "dress sneakers," but happy to let the point be argued. At any given time, probably most will converge on the view that other items, such as Sen. Cruz's sweaty gym clothes or Sen. Fetterman's hoodies and shorts, are outside the realm of current acceptability. (I would hesitate more over the latter, given his recent illnesses, but he has in fairness been performing political "authenticity" through his clothing choices for a long time.) One may be especially respectful of the fact of change given, to put it in the usual academic terms, the potentially gendered, racialized, and sexualized nature of dress codes. But one can be respectful of that fact, and welcoming of relevant changes, without either thinking erroneously and disrespectfully that any category of person rejects the idea of respectful and dignified dress, or concluding that the best response is simply to have nothing at all--let alone thinking that the best response is to have nothing at all unless you're staff.

The second note is that people sometimes talk about professorial dress codes, and if there were one I would not meet it and would probably ignore or defy it. I am still flabbergasted when I visit some law schools, especially fancy-pants (so to speak) schools, and find suits or their equivalent to be the professorial order of the day. As I've said here before, only in such a lockstep environment could Duncan Kennedy's famed leather jackets be taken as a meaningful act. I generally don't care what my colleagues wear, and especially not what my junior colleagues wear. But I wouldn't build a rule around my choices, and in any event wouldn't call what I wear "authentic"--even when I wear my own (orthotic-modified) Doc Martens. It's closer, perhaps, to a tribute to the sadly disappearing tradition of academic eccentricity, and thus also a kind of performance. Of course students, and the classroom, demand respect, and I hope I give it, in however left-handed a fashion. But the classroom is still not the United States Senate.    

      

Posted by Paul Horwitz on September 20, 2023 at 02:16 PM in Paul Horwitz | Permalink | Comments (0)

Tuesday, September 19, 2023

Mea Culpa, Admission, Advertisement, or Fashion Statement?

In the Atlantic, former American Constitution Society executive director Caroline Frederickson writes to express her regret that "[i]n my decade running the American Constitution Society, I never gave much thought to political-economic issues such as antitrust and competition policy—they were just not on our agenda," focusing instead on, inter alia, abortion, voting rights, and "demographic diversity" for judges, but not questions such as "where [they] stood on the question of corporate power." This despite the mantle of progressivism claimed by the ACS and its genealogical ties to the "progressive advances of mid-20th-century America” on questions of "political-economic arrangement[s]."

I am happy to take this as sincere (with an asterisk, if only because magazines like the Atlantic are not designed for and mostly don't rate high on deep candor). I went back and looked at the ACS's list of occasional policy briefs and other publications, including leafing through the two early ACS books that have long gathered dust on my shelves. To give it its due, it has had a couple of publications that fall more on that side of things, but in general she is right. I can't say it bothered me; I understood its focus to lie elsewhere and I don't expect every group to do every thing. But one might speculate about some of the reasons why it took that focus and, on her account, neglected economic issues. Four possible and possibly related factors occur to me, which perhaps illuminate both Frederickson's piece and the political economy, as it were, of the advocacy sector in which she has spent so many years:

1: Those issues weren't fashionable. Lina Khan was not yet out of grade school when the ACS became a national enterprise. It became a going concern when the present leaders of the Democratic Party were still relatively youthful—merely in late middle age. The issues she now wishes it had focused on more were just not au courant. It is perhaps indicative of this that the piece refers, in a very past-tense, "imagine that" way, to the fact that, way back when, "[e]ven Democrats had gotten on board with parts of the deregulatory agenda." She should know! She was Special Assistant to the President for Legislative Affairs during the Clinton Administration. There was more liberal love in her heyday, and the early days of the ACS, for cost-benefit analysis and tradeable emissions permits than there was for aggressive antitrust law. 

2: The ACS has never been a creature of the left. The issues Frederickson is now concerned to highlight are far more associated with the left than with generic liberalism as it existed roughly between 1990 and 2016. And the ACS, notwithstanding whatever casual linguistic elisions its detractors might use in referring to it, was never a left institution. It was a conventional liberal institution. To be sure, following the usages of the time, it always referred to itself as progressive; but that usage has more to do with the Dukakis-hangover-based decision to use the term "progressive" instead of "liberal" than with any sort of vigorous, old-school, Joe Hill, "Solidarity Forever" progressivism. The genealogical history she invokes in her Atlantic piece was, at least at the time, just that: history. More ACS luminaries in the first decade of the millennium would have had Fleetwood Mac or Joni Mitchell on their CD players than Billy Bragg or Fugazi. I'm not sure much more evidence of its fundamentally liberal-not-left nature is needed than the fact that even this piece lamenting its failure to be more old-school left appears in the Atlantic, which is echt-liberal and follows liberal fashions as routinely as a clock tells the time. It is natural that the group's causes embraced what was fashionable or conventional for liberals and not leftists. 

I wonder, along these lines, what legal scholars on the genuine left make of a piece like Frederickson's. What would someone who, when the ACS was getting off the ground, thought at the time that liberals neglected fundamental questions of economic power, and was busy forcefully saying so to unreceptive elite audiences (when they could secure them), make of a confession like this? What would someone who persisted in then-highly-unfashionable Critical Legal Studies views, in which liberals and soi-disant progressives were not so much allies or cousins as part of the problem itself, make of it? (Pace Samuel Moyn, incidentally, I think many of the folks who are putting "and political economy" or "political economy of" in their law review article titles these days are far closer in relation and inclination to standard-issue liberalism, or its modern and more fashionable variants, than they really are to Critical Legal Studies in any genuine sense. Certainly, to adapt a phrase from Richard Posner, many of them write left—sometimes only as long as the abstract and introduction—and live liberal. Take the very fact of the confession’s placement in the Atlantic as an exhibit, if you like.) Do they feel frustration? Exasperation? Better-late-than-never relief? Or perhaps amusement? 

3: Last-war syndrome. The introduction to the 2009 collection The Constitution in 2020, which was more or less a kind of ACS action agenda, says that "[t]he key to the future is not a return to the battles of the past." Perhaps. But most of us, being attached to our habits and not blessed with prescience, tend to fight the last war anyway, or at best the next election cycle. (Despite the Supreme Court’s shift in focus, more originalism-is-wrong papers are uploaded on SSRN in a given week than traditionalism-focused papers are published in a year.) The ACS spent most of its loudest decade fighting Bush v. Gore (including well after the case was over) and 9/11 issues and burnishing resumes for the hoped-for return of a Democratic administration. Like most groups, it talked about being forward-looking, but most of its activities and publications were firmly rooted in the issue of the day. Or even of the past: it issued more “retrospectives” on various past questions than papers aimed at the future. (In the Constitution in 2020 book itself, two chapters out of 27 focuses specifically on the kinds of issues Frederickson now foregrounds; one, by William Forbath, was more forward-looking; the other, by Frank Michelman, was arguably more of a reprise.) 

4: Follow the money. I don't mean this to refer to Frederickson, the author of the piece; I mean it more generally. Not incidentally, the author bio in Frederickson's piece identifies her as "a visiting professor at Georgetown Law and a strategic councilor on democracy and power at the Open Markets Institute." The latter, for which her piece in effect serves as a bit of PR at the mild expense of her former employer, is a 501(c)(3) that describes itself in its filing as "a team of journalists, researchers, lawyers, and advocates working together to expose and reverse the stranglehold that corporate monopolies have on our country." Such noble struggles take money, or some combination of money and prestige, the latter of which both lures more money and serves as a salary substitute. As such groups go, the Open Markets Institute seems neither highly funded nor profligate. Its Form 990 from 2021 shows gross receipts of around $2,746,000, and it does not spend outrageously on fundraising or on executive salaries; the salaries of the top three executives merely place them in the top 16 percent or so in terms of American household incomes, not including other sources of income or possible spousal income. (By contrast, the American Constitution Society gives Russ Feingold the honor of serving as its president at a cost in salary that, without counting any additional income, places him in roughly the fabled two percent. Surely that identifies it as American liberalism.) 

In the high-minded-causes sector, the necessary money comes from wealthy and ultra-wealthy donors and foundation directors who have convictions and/or the desire to show others that they have them. Even a fairly lean and economical group needs some cash. The Open Markets Institute's major donors thus include a raft of familiar names: the Knight Foundation, the Hewlett Foundation, the Lumpkin Family Foundation, the Omidyar Network Fund, and so on. (A note at the end of Frederickson's confession of regret further specifies that "[s]upport for this 'project' was provided by the William and Flora Hewlett Foundation." I added the internal set of quotes around 'project,' since I have never heard a short penitential piece in the Atlantic described by that label. The folkways of this country are still strange to me.)

I admittedly don't personally see much that is right or good about this general American ecosystem, but in more immediate and specific terms I don't see anything wrong with it; the Open Markets Institute's rather forcefully stated cause is not outlandish and, after all, officially speaking it opposes monopolies, not billionaires, gross amassed or inherited wealth, trust funds and trust fund kids, capitalism, or the outsized influence of the donor class on democratic politics. But the donor class has to be persuaded to fork over the dough for such missions. And that class follows the fashions, among other reasons for making funding decisions. The portion of that class that funds causes that are left rather than right of center is now keener to fund, and/or to be seen funding, economically oriented causes like that of the Open Market Institute than it may have been twenty years ago, when it was happier to fund socially oriented causes. The reasons, interests, self-interest, and incentives of wealthy individual and institutional donors are opaque to me. But it is not surprising, given all these reasons, that the ACS would have focused its energies on the issues it chose and not elsewhere, that its major figures would have done the same, and that the action has now, to some degree, shifted elsewhere on the gameboard. 

 

Posted by Paul Horwitz on September 19, 2023 at 10:33 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, September 13, 2023

A Vibrant, Well-Resourced Press is Vital, and Often Total Crap

Anyone who writes on speech and press issues cares deeply about the disappearance of the local press and the often precarious status of even larger city papers. Journalists and former journalists also care about this issue. So do people who actually live in regions that have seen that disappearance. I fall into all three categories. My own employer/university is a multi-billion dollar institution and major power in Tuscaloosa, Alabama. No multi-billion dollar, core civic and educational institution should be without at least one or two beat reporters, one for the beat news and one to do little but investigate it. (And that's not to speak of Tuscaloosa local government, which is no paragon and badly needs an outside minder.) But the Tuscaloosa News, which won a Pulitzer for its coverage of the 2011 tornado before being passed around by various corporate owners, is now essentially a decently staffed sports section that also runs wire service stories. The things the university, and the city, can do on its watch are without number, because it is not in fact watching. So I am indeed on board with all the whistle-sounding on this issue and the efforts to address it.

But there is, I find, a tendency for the writers on these issues to adopt--or be born with--a fairly typically NPR-Cambridge-Ford Foundation establishment earnestness of tone, as conventional as a Brooks Brothers suit, that follows the standard musical score from somber recitation of problems to cheery meliorist proposal. Well and good; these folks have the time, money, and talent, and I'm glad they're spending them on this problem. But it tends to miss the messiness, and its picture of what the press looks like, or would if it only had more support, is always a ProPublica investigation of state sewer spending and never the fair quantity of junk that even well-resourced institutions are glad to push. (Today in the Times, not buried but at the top of the home page: "Why Are So Many Millennials Going to Mongolia?") It seems to me that to address the very real problem of the disappearing press, we must see that press as it is, without pretense or a distorting high gloss. 

With that in mind, I am pleased to forward this announcement that "USA TODAY and The Tennessean/tennessean.com, part of the USA TODAY NETWORK, [are] seeking an experienced, video-forward journalist to capture the music and cultural impact of Taylor Swift." If you are "an energetic writer, photographer and social media pro who can quench an undeniable thirst for all things Taylor Swift with a steady stream of content across multiple platforms," this is the job for you, provided that you have a bachelor's or master's, at least five years' experience, and a willingness to forgo the Oxford comma--in addition to, I am surmising from the job description and the requirement for a "video cover letter," the urge to splash oneself across various platforms, the better to "quickly cultivate a national audience through smart content designed to meet readers on their terms." 

Good luck to the competitors! With jobs scarce, there will be many. But take heart: having announced the Swift opening yesterday, USA Today and the Tennesseean swiftly announced this morning that they are also "seeking a reporter to chronicle the music, fashion, cultural and economic influence of Beyoncé."

   

Posted by Paul Horwitz on September 13, 2023 at 11:13 AM in Paul Horwitz | Permalink | Comments (0)

Sunday, September 03, 2023

Isn't a Swing Vote's "Legacy" Bound to Be Evanescent?

This Washington Post story argues that former Justice Anthony Kennedy’s "mark is fading fast — and is already erased in some areas." It draws heavily on his former clerks--and focuses on the fact that part of the reason for the decline of his "legacy" is two particular former clerks, who are now Justices Kavanaugh and Gorsuch.

Is this true? Much depends on which cases one focuses on, and the story focuses mostly on politically salient cases, with a tilt toward culture-war issues--specifically, those cases in which Kennedy's swing vote favored the "liberal" side of the argument. (Thus, the story makes no direct mention of Gonzales v. Carhart, Boy Scouts of America v. Dale, and United States v. Lopez, among other 5-4 decisions, and mentions Citizens United only in passing.) To the extent that it is, I think there are some big reasons and a few smaller ones.

One big one is generational change. The story notes that the current justices who clerked on the Supreme Court don't precisely match the politics of their former bosses: they remain "liberal" and "conservative" but necessarily the same stripe of liberalism or conservatism. That's natural, because the content of "liberal" and "conservative" politics shifts. It may be enhanced by an acceleration or accretion in the politics of liberal and conservative judicial nominations and service as well, according to this forthcoming book, which I look forward to reading, in which interest groups have helped create a Supreme Court appointments model that has "gradually transformed how the Court itself operates, turning it into an ideologically driven and polarized branch." The shift is further enhanced by enormous changes in a short period of time in what constitutes "conservative" thought, which is in flux following the collapse of the libertarian/values-conservative fusion that prevailed for a span of decades. It's not surprising that amidst this flux, the competitors to claim the conservative mantle don't look at all like Kennedy.

Another big reason, obviously, is the change to a 6-3 conservative Court. Had it been a 6-3 liberal Court, perhaps even one staffed by a couple of liberal former Kennedy clerks, I doubt his "legacy" would have held up any better, although the shift might have been in other cases--say, swing cases involving federalism. But even in culture-war issues like the ones discussed in the story, I doubt such a Court would have honored the compromises struck by Kennedy. Why would it need to bother? Remember Mark Tushnet's impolitic words about Justice Kennedy, which were prophetic about everything but which side would be in a position to relegate him to the past. The same thing would have happened had things gone differently; the only difference is that a different, non-"mainstream" paper would have run that story. And another, smaller reason is, with all due respect, his writing. Over and apart from the fact that the current conservative majority's methodology is arguably different from Kennedy's, many of his most famous opinions across a range of areas contain more middlebrow poetry than they do clarity. Holmes's aphorisms lasted, although that had as much to do with his friends and their effort to maintain his reputation as with their quality; Kennedy's doggerel is not quite the same. 

But the most important reason is the very hook on which the story hangs: Justice Kennedy was, in the cases the story cares about, a swing justice. It seems inevitable that a swing justice's legacy will dissipate quickly. (Justice O'Connor's star does not shine as brightly today either; indeed, it began dimming as soon as a new swing justice took her place.) To put it differently, the "legacy" of a swing justice does not have much to do with the future at all. The value of a swing justice lies in the present: in striking compromises that smooth things over for a little while in an area that is contentious on and/or off the Court. That's not necessarily a bad thing and may be a very good one. But it should be celebrated for what it is: a compromise, a fix for an immediate need, a bit of gaffe tape at a useful moment to make sure the car doesn't go careening in one direction or the other. What it is not is a recipe for a long-term "legacy." As Tushnet pointed out, occupying the role of a swing justice--in Kennedy's case, rather vocally and ostentatiously--meant that cases and arguments were bent in the direction of securing his vote. Once it was no longer a factor, it's natural that those arguments would migrate elsewhere. It may be that the fate of a swing justice is to command everyone's attention while he or she is on the Court and no one's for so much as a second after that. 

Incidentally, one thing the story does not mention is the role Kennedy's retirement has played in legal scholarship. A vast library of articles was written with the same short-term, instrumentalist goal of influencing Kennedy's vote before the fact and trying, as best as was possible, to explain and justify it afterwards. The Kennedy-massaging legal scholarship industry has now quite collapsed. It might experience a revival in a later generation, but for now most of it has fallen into desuetude. That may matter for larger reputational or "legacy" purposes as well.   

Posted by Paul Horwitz on September 3, 2023 at 09:51 PM in Paul Horwitz | Permalink | Comments (0)

Thursday, August 31, 2023

An Apt and Half-True Statement

In one of those rare instances in which the letters section of the New York Review of Books generates light and not just heat, this letters exchange concerning naming and unnaming at universities (which features an ingenious and suspiciously convenient mechanism for preserving Stanford University's name while renaming its constituent parts) offers a lovely quote about the purpose of the university: "The perennial chance to rethink things embodied by the next generation is, after all, the crucial feature of universities."

Nice. But surely and rather precisely incomplete. The perennial duty to understand and pass along things embodied by past generations is an equally crucial feature of universities, is it not? Especially, but far from exclusively, in their teaching role?

It strikes me as both common and deeply unfortunate that in discussing universities and their role, and scholarship and its role, half the politically engaged commentariat tends to overemphasize the first feature, and the other half tends to overemphasize the second. (Within the legal academy and most of the rest of the academy, surely the overemphasis on the first is even more lopsided.) 

Posted by Paul Horwitz on August 31, 2023 at 08:55 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, August 02, 2023

From Jotwell: "Constitutional Scholactivism, Foreign and Domestic"

At Jotwell, I have a new jot discussing an article and reply to critics by Tarunabh Khaitan on the subject of "constitutional scholactivism." Khaitan defines scholactivism in a motive-centered way, as scholarship “distinguished by the existence of a motivation to directly pursue specific material outcomes.” He "emphasizes the difference between the scholactivist attempt to achieve 'direct, proximate, material [ ] impact through one’s scholarship,' and the scholarly motivation to seek 'merely discursive' impact." He carefully examines and critiques scholactivism and argues that even its supporters should be concerned about it for instrumental reasons.

In my jot, I commend Khaitan for being "willing to question scholactivism as such, regardless of its political valence, because that is just what a scholar does." And I argue, for familiar reasons that are usefully highlighted by being viewed through the lens of someone writing about legal scholarship norms outside the United States, that his concerns are especially relevant in this country:

Khaitan’s piece is particularly resonant for American scholars, perhaps in ways he didn’t anticipate. He writes that the nature of activism is “in tension with the academy’s need to provide time and distance for research and reflection, inculcate an attitude of skepticism, and reward truth-seekers and knowledge-creators.” Those tensions “put even a moderate scholactivist at risk of failure as a scholar.” The need to publish in a timely fashion to achieve specified goals may lead the scholactivist to, inter alia, “submit the paper to a non-peer-reviewed student-run law review known for its quick publishing decisions and for preferring practice-oriented novel claims over academic rigor.”

For Khaitan, these are perilous moves away from the rigor and role-morality of a true scholar. American legal scholars just call it Tuesday. Seeing these practices through the eye of a non-Stateside scholar reminds us just how few of the ordinary guardrails for serious scholarship are in place in the American legal academy. That strengthens Khaitan’s argument in the United States.

Some responses to Khaitan argue that if a scholactivist takes the short-cuts he worries about, the problem will cure itself, because such work either won’t be published or will be ignored. But the nature of the American legal academic enterprise—the vast number of journals, the reliance on student editors and absence of thorough peer review, the relative lack of political diversity and the two-solitudes relationship between contending sides, the reluctance to criticize the methodologies of one’s friends and allies—exacerbates the risks and weakens the safeguards that both Khaitan and his critics acknowledge. To the usual structural failings, we can add that the current crop of American student law review editors has a marked enthusiasm for scholactivism. They are thus likely to publish more of it, without being able to properly evaluate it (or any other scholarship) for rigor and integrity—and less likely to publish the few critiques of this approach that might emerge from the rather timid U.S. legal academy....

More at Jotwell. I would add two things here. First, time has caught up with one statement. I wrote that "at least at this moment, one will find no uses of the word 'scholactivism' in the Secondary Sources database on Westlaw. That was true up to the finalization of the draft, but there is now at least one passing reference. Second and related, there is definitely room for more, including both critical and supportive discussion. If, as I argue in the jot, 1) a lot of American law review articles (in constitutional law, certainly, but not limited to that subject) are scholactivist and 2) contemporary law review editors seem eager to champion this sort of goal-motivated scholarship--and I think most would agree with both statements--then those editors should, at a minimum, be looking for work that subjects this approach to close examination and critique. As the excerpt above and a number of my Prawfs posts have made clear, I think American law schools and professors, who alone are responsible for the structure and condition of their discipline, ought to do a lot more than that. Simply treating our field's journals and their editorial structure and decisions, bizarre as they may be compared to other academic disciplines, as something over which we have no control is a form of ongoing disciplinary abdication. 

This is just one aspect of a larger discussion in an interesting pair of articles. Read Khaitan! And by all means read the interesting responses his initial piece received, at least outside the United States. 

Posted by Paul Horwitz on August 2, 2023 at 02:44 PM in Paul Horwitz | Permalink | Comments (0)

Friday, July 28, 2023

The Ethics of the Justices--and Their Honor

The New York Times story on the books of the Justices serves as a nice occasion to voice something that has frustrated me about the recent discussions of the Court and the conduct of individual justices. There are good reasons to subject lawyers and judges to ethical codes, of course. Not least among them is that they provide (relative) clarity for insiders and outsiders alike. But a less good reason, at least as I see it as a Canadian let loose in the U.S., is the endless American habit of turning moral and political questions into legal ones, and vice versa. The result, all too often, is that a value or course of conduct that's not codified isn't taken seriously, and if it is codified it ends up being treated as a full and adequate account of one's obligations. (This general point generated a lot of legal scholarship about constitutional and political "norms" starting around 2016, although scholarly interest in the subject seems inexplicably to have waned in the last three or four years.)

I'm not opposed as such to codifying and/or strengthening the ethical rules that apply to Supreme Court justices. But inevitably, not everything that constitutes honorable conduct by a Supreme Court justice can or will be codified as an ethical rule. Indeed, not everything that constitutes honorable or dishonorable conduct by a judge or other office-holder should be codified as an ethical rule. And there are a lot of things that we might generally agree fall within the proper scope of official ethical conduct but are dishonorable. Of course we will disagree about what constitutes honorable conduct by an official, just as, even with an ethical code in place, we disagree about what conduct falls within or outside that code. Under our current system, for instance, absent specific circumstances it is ethical for a justice to serve for a very long time. But it is arguably not always honorable, even absent scandalous motives or actions.

Our usual focus on the official ethics of office-holders, rather than on what constitutes the honorable or virtuous path for such officials, leads us either to end the discussion once we've argued the official ethical question to death, or to seek some legal hook or official "scandal" to say what we could say more easily and directly in honor language: that some way of acting, permissible or not, is wrong, a discredit to the office, and should be criticized. The legalization of the discussion tends to lead to a false binary debate, conducted by the usual online debating societies and so-so journalistic commentators, in which something is, as it were, either a legal violation or a "nothing-burger."

Judges do inhabit an honor culture and form part of an honor group, consisting at the least of both their judicial colleagues and other participants in the professional legal community. It would be nice if more of our discussion explicitly discussed not what is ethical for judges, but what is honorable or virtuous. The dubious support of Richard Painter notwithstanding, I doubt it is either unethical or dishonorable to host a pay-your-own-way Christmas party with your former clerks. I don't think it's unethical per se for a justice to write a book--even a clearly mediocre or unnecessary one, which is generally the kind of book Supreme Court justices write. (To his credit, I think the kinds of books Justice Scalia wrote while on the bench don't fall into this category. Opinions will differ as to their quality, and I have no idea whether he was paid an unreasonable amount for them, but they struck me as serious books for people interested in law. One might say the same thing about Justice Breyer's books, although, again, I don't know whether he was paid an appropriate amount for them. I am frankly and perhaps--albeit unapologetically--snobbishly disinclined to view justices' memoirs, or collections of generally vapid speeches, in the same light.) But I doubt it is honorable to engage an agent to negotiate a large advance for such a book, which almost inevitably will be watered-down pablum (even justices, after all, are expected by major publishers to justify the size of the advance), and which the prospective author knows will be pablum, and then to hawk it up and down the country. It's ethical for justices to talk about wanting to beat the record for the length of a Supreme Court tenure, or wanting to serve a long tenure to show the people who opposed their nomination that they're staying put, and to serve accordingly long tenures. But to actually engage in that conduct is dishonorable. (I say again, in a reversal of the usual phrase, "More Souters." Nineteen years is an honorable span of time to sit on the Court--and the shortest complete tenure in recent memory.) 

I don't mind the ethics debate as such, although its quality is, to say the least, variable. But there's a lot more room for honor or virtue talk when considering these questions. I would like to see more of it, especially from the justices' honor group, which includes lawyers and legal academics. It would be nice if (where this fit one's views) we saw more public discussion in which one says, about a justice whose votes one favors, that their conduct is ethical but dishonorable, and that their compliance with official ethical requirements doesn't render it any less so. We should expect much more from holders of high office than just following the rules. 

Posted by Paul Horwitz on July 28, 2023 at 11:53 AM in Paul Horwitz | Permalink | Comments (0)

Monday, July 24, 2023

Missing From the American Coverage of the Israeli Judicial Reform Controversy

The headlines from the New York Times today put the matter succinctly: "Israeli Parliament Passes Contentious Law Limiting Judiciary." "Protest Movement Spurred by Legislation Vows to Fight On." The U.S. coverage of the controversy is entirely Israel-centered, understandably enough, with some discussion of how the controversy is affecting U.S.-Israeli relations. The overall bent of the coverage in the kinds of mainstream, politically liberal legacy press I read for my basic news is critical of the changes and of the Netanyahu government, and describes the battle as one in which "Israel's identity hangs in [the balance]."

What surprises me about all this coverage is how much the story has been treated as purely unique and internal to Israel, except in the sense of its impact on US-Israeli relations, and how little, if any, of the coverage has treated it as relevant for American debates over Supreme Court reform. One may remember that that issue was important enough to some constituencies in the 2020 election that it forced then-candidate and later President Biden to provide the official, time-honored sop of a blue-ribbon commission in order to quiet them down; that the issue certainly did not die down after Dobbs; and that it continues to fuel interesting proposals from important, albeit non-influential, corners of the party. Although the Supreme Court ethics movement and related coverage strikes me as more purely and immediately strategic, targeted, and partisan (which is not to say there's no "there" there; just that whether there is or not is not really the point for many newly enthusiastic groups and individuals), it is of course tied to the longer and larger debate. So you would think there would be a lot more connecting of the dots when an entire country is currently convulsed by actual legislative movement in the direction of judicial reform. (I use "reform" for convenience, setting aside debates over the best term to use.) 

I would think that such coverage and commentary would be interesting in part because it could fuel self-subversive thinking and realignment, pushing reporters and editors out of their customary schemas. One could imagine a story taking a positive angle on the Netanyahu government's success (on the assumption, obviously true, that most mainstream news reporting in the major papers has an angle), on the view that it shows that it is possible for government to succeed in altering the balance of power between the judicial and political departments. Or one could imagine a story taking a more wary or negative view of the Israeli protesters, either because they are interfering with what in the U.S. would be (for some) a cherished goal, or because they demonstrate how many levers those who resist such reforms might push, including some that might offer legitimate cause for concern or criticism. (Given longstanding discussions of the relative partisan skew of the membership of our armed forces, one might think that the threat of Israeli military reservists to stop serving if the Israeli judicial reforms passed would be of special concern here.)

But one doesn't have to imagine any particular angle or story to think the Israeli experience might simply provide interesting food for thought in the context of stories about American Supreme Court reform. Coverage of Supreme Court reform here, when it discusses public opinion, tends to do so at a crude level, asking whether a majority supports some reform or other but not talking much about the intensity of support or opposition or distinguishing much between bare and overwhelming majorities. In the case of Israel, President Biden has urged that for "significant changes" of the sort represented by the Israeli reforms, it is "essential" for the government to achieve "the broadest possible consensus" before moving forward. Surely that view is relevant to the ongoing American debate, and can be the subject of agreement, disagreement, and analysis in the context of American Supreme Court reform. (That view, I should add, seems consistent with the relatively hands-off, low-priority approach Biden has taken to the issue domestically.) If Congress had a majority favoring some arguably constitutionally permissible change to the structure of the Supreme Court and its relation to the political branches, and if, say, 56 percent of the public favored such a change, would it be proper, or precipitate, to go ahead with it? If American soldiers, reservists, or government employees threatened to resign en masse if the change were passed, would that sort of pressure be legitimate or illegitimate, praiseworthy or blameworthy?

I don't, of course, mean to suggest that the Israeli experience maps on to the United States experience with any exactitude. Nor do I mean to suggest there has been no such coverage. That can't possibly be the case. But if it had been even mildly present in the standard mainstream American coverage of developments in Israel, which has been voluminous, it would have been much easier to spot--and I cannot spot it, at least in the major papers and even in their opinion sections. It's a missed opportunity for interesting perspectives on and coverage of both the American and Israeli debates over the judiciary. It's also a rather bizarre absence, even if one takes into account the siloing of domestic and foreign coverage in American newspapers.     

Posted by Paul Horwitz on July 24, 2023 at 12:05 PM in Paul Horwitz | Permalink | Comments (0)

Sunday, July 23, 2023

"Powerful dissent:" the "coruscating guitar solo" of Supreme Court commentary

On the "powerful dissent" question, I would point to two sources to help better understand the phrase, other similar phrases, and their role, which I think of as lying somewhere between actual communicative effort and clearing one's throat, with a heavy added element of demonstrating the writer's status. The first is this glossary by Derek Muller, which helpfully explains "the jargon that usually accompanies Supreme Court analysis."

The second, a little further afield, is a wonderful book, The Rock Snob's Dictionary: An Essential Lexicon of Rockological Knowledge. Although a good deal of it is simply a helpful guide to things and people, often arcane, that rock snobs like to invoke (e.g. Van Dyke Parks, the Nuggets anthology, gated reverb), it also offers helpful information about the kinds of cliches that have been a staple of music critics' writing for years: "Seminal," "angular," "coruscating," and so on. (Co-author David Kamp provides a similar service for film snobs in another fine book.) As Michael Azerrad writes of rock cliches, such jargon "can make a writer feel authoritative—and it can also fool some readers into thinking the writer is authoritative." (The quote is from a book, but the link is to an article about Azerrad in Slate--appropriately enough, since Slate's house style is the confident assertion of dubious authority.) But it can also become mere habit.  

Is the guitar solo actually "coruscating" or "liquid?" Is the song truly "plangent?" Was that concert the writer attended really "incendiary?" Who knows? Sometimes even the writer doesn't. In many cases the writer thinks something like that is true, and is trying to get a sincere message across. Very often, they want to sound as if they have reached a firm judgment, and impress or cow the reader with that fact, even (or especially) when they clearly lack the wherewithal to assert such authority. But often enough this language is just a reflex, like coughing, or a sign of laziness.

"Powerful dissent," like the phrases listed in Derek's glossary, is basically that, but for "Supreme Court snobs"--those whose getting and spending of cultural or financial capital consists of the frequent delivery of evanescent popular or academic commentary about judicial opinions and other legal developments. Such phrases should not be assumed to be dishonest or esoteric. Those who use them may be banal but sincere. These cliches' role in asserting authority, both to overawe the reader and to get ahead in the writers' own status competition, should be noted, and both the authority and the opinion should be treated with skepticism. Beyond that, though, these phrases generally should simply be ignored, and writers should generally omit them.   

Posted by Paul Horwitz on July 23, 2023 at 12:27 PM in Paul Horwitz | Permalink | Comments (0)

Sunday, July 16, 2023

What Does it Mean to Be "Totally Misrepresented?"; With a Note on "Beyond the Scope"

Journalist Allison Stewart writes to complain about being cited in Justice Thomas's concurrence in SFFA. She writes that Thomas, who cited her book about Dunbar High School, engaged in a "misreading of Dunbar's legacy." She shares the words of an acquaintance who sent a text saying that Thomas had "totally misrepresent[ed] your work."And she writes, "I, too, was appalled that a book I’d written about the impact of education was used to uphold the Supreme Court justice’s anti-affirmative action argument. We are in a sad moment when cherry-picked information now passes as fact."

Two points about this. First, Stewart's heartfelt article does not, in fact, show that Thomas "totally misrepresented" her work. The passing citation comes in a footnote supporting the general argument--one that represents one of many points of common ground between Thomas and Critical Race Theory scholars and Black nationalists--that Black schools and other Black institutions can be places and sources of independent achievement and success. Thomas takes Dunbar High School as an example, primarily citing Thomas Sowell's work. He writes, citing Stewart's book, "Dunbar produced the first black General in the U. S. Army, the first black Federal Court Judge, and the first black Presidential Cabinet member."

Stewart does not contest the accuracy of the citation; for that matter, she agrees with Thomas that "Black students can achieve." Hence the necessary line about "cherry-picked information" passing "as fact." Even that is inapt. The information may be cherry-picked, but it is fact. Stewart's line would be more a propos if, say, one took statistical data about the effect of a virus on various populations and used it to propound a false factual claim about that virus being "targeted." In this case, however, citing Stewart for the purpose of noting a historical fact about Dunbar's alumni is no more "cherry-picking" as such than it would be to cite a book about the Black Plague for its statement about the number of people estimated to have died of it in 14th century Europe, even though that book is primarily concerned with the social and literary sequelae of the epidemic.

Stewart's actual complaint, it seems, is not that Thomas misrepresented or distorted her work, but that he cited it in the context of an opinion criticizing affirmative action, which Stewart supports. She is entitled to disagree with him, as anyone is, and one can understand her being discomfited or dismayed by the appearance of her book in his concurrence. But I see no misrepresentation.

That point would be barely worth making, were it not for two things: 1) the generally poor level of scrutiny of arguments that support one's own views, such that one can guarantee that Stewart's line about misrepresentation will be both widely shared and quickly inflated into a confident claim that Thomas engaged in falsehood or misstatement; and 2) the degree to which "you misunderstood my work" has itself become a kind of strategic accusation, like arguments about illegitimacy. I do not accuse Stewart of doing this. Nevertheless, I assert that strategic moves of this sort are both relatively frequent and more worrisome for contemporary trust in "fact" than anything involved in Thomas's passing citation of Stewart's book. (Building on other parts of her essay, Stewart might have developed a stronger argument that Thomas's denial that many people contribute to success, and that children deserve support and investment, is a more direct misrepresentation of her work. There are two problems with this, however. One is that it is false; Thomas denies neither proposition. The second is that the point is orthogonal to the question whether that support and investment should come through affirmative action in higher education, or through other means.)  

The other point is that while journalists and scholars are free to dislike it when someone whose policy views they disagree with accurately cites their work, just as artists are free to dislike it when someone they loathe likes their art, and all of us have experienced this in cases that don't involve actual misrepresentation, this kind of thing is a necessary element of good scholarship, just as it is of good art. At least outside of the harder sciences (and possibly there too), and apart from highly narrow factual claims, good scholarship can never guarantee a single set of implications or conclusions, policies or policy consequences. It always leaves open spaces and gives hostages to the future. My own view is that the best scholarship and journalism not only doesn't seek to avoid this: it steers into it, willingly acknowledging and exploring the ways in which the author's findings and recommendations might have perverse or undesired (from the author's perspective) or unexpected consequences, or raise questions about the larger implications of and tensions created by that work. 

One interesting and occasionally dispiriting way to figure out whether legal scholarship meets that standard is to examine the "beyond the scope of this article" footnotes that inevitably crop up in modern articles. One can ask of these notes: Is the question beyond the scope because it exceeds the author's expertise, or because it is not germane, or for some other clearly valid reason? Conversely, is the excluded question clearly germane to the article and clearly within the scope of the author's expertise--but likely to raise unwanted or uncomfortable questions, or make the author's normative claims less attractive? If so, does the author at least give the reader enough detail about what is being excluded, and why it might matter, that the author's refusal to address those questions neither misleads the reader nor prevents the reader from judging the author's refusal? If not, we may be seeing an instance of an author strategically attempting to direct and manipulate the shape and reception of his or her scholarship in a way that, on some core level, renders it a failure as scholarship. Like the novelty claim, the "beyond this scope" note is an essential clue in the critical, rather forensic reading of legal scholarship, a rug under which all manner of dirt may be swept. 

Posted by Paul Horwitz on July 16, 2023 at 12:53 PM in Paul Horwitz | Permalink | Comments (0)

Saturday, July 15, 2023

Another Blow Against "Preferred First Speakers"

From Paul Caron, this news of a successful effort to speak loudly and visibly at the same time as an event that was also and, technically, I guess, solely scheduled to take place at Harvard Law School. The alternate speakers preferred to talk about HLS professor Jody Freeman not talking and, still more specifically, how she must be fired immediately. The specific speech goal of the non-preferred-first-speakers, based on their communications, was not so much to continue speaking indefinitely-but-simultaneously with Freeman, but to "storm" the event and prevent it from taking place. This blow to the bullshit of civility came courtesy of a group called Climate Defiance, a group whose imagination appears to run the contemporary gamut from A to C--speech disruption (or simultaneous-opposite-speech, if you prefer) in the service of laudable and relatively non-specific goals, being really really active on social media, and asking for money. Also supporting the no-platforming counter-speech, if I read the reports correctly, was Extinction Rebellion Boston, which plays essentially the same trifecta and is connected to the inestimable English group Extinction Rebellion, whose founder holds that most valuable of degrees for such activities: a Ph.D in "digitally enhanced political resistance and empowerment strategies." I suppose Climate Defiance could have used the Q-and-A to raise the question why Freeman has not been fired yet, but one imagines that it is not keen on phony procedural niceties of this sort.

I take no position on whether Freeman's conduct is outrageous or on whether the issue of climate change is urgent enough to demand spectacular extra-procedural action. That seems quite beside the point. If the protesters had closed down the event and demanded that Freeman be fired out of anti-Canadian animus or pure sexism, or because it thought her article on agency coordination in shared regulatory space had been unfairly allowed to exceed the usual word limits, or because it thought she was actually this American Ninja Warrior, I don't see how they would be in a different position or have had a weaker justification, equally-preferred-second-speaker-wise. 

 

Posted by Paul Horwitz on July 15, 2023 at 05:17 PM in Paul Horwitz | Permalink | Comments (0)

Wednesday, July 12, 2023

Transference, the Classroom, and the University

I wrote a while back that it would be nice--for us and for readers, and in service of the avoidance of the tedious topic and downward spiral of politics--if, despite our aging status, we posted more at Prawfs about the life of the teacher (and scholar, and renderer of institutional service), which was one of the raisons d'etre and main themes of Prawfs in its first years. On the one hand, we were particularly suited for that topic at the time because we were experiencing it from the ground up; as more senior professors, we are more secure, more complacent, and perhaps more forgetful. On the other hand, as senior professors, we are in a position to write about what we got wrong or misunderstood as junior professors (and what junior folks often may misunderstand or exaggerate as they go through the early career process)--and we are also in a position to write frankly and without regard to consequences, which is how professors should write anyway, at every stage of their careers. So here's a post on that topic. Via The New Yorker, which occasionally manages to surprise, here is a nice piece on "transference and the contemporary classroom."

The author, Merve Emre, notes the long history of connecting the psychoanalytic concepts of transference and counter-transference to the teaching relationship, the relatively brief period in which the "erotics" of that relationship (without necessarily having a specifically sexual connotation) were a frequent and fashionable subject of discussion, and the "uncomfortable climax" that this approach to the subject reached with the Jane Gallop affair, as well as the movements and necessary discussions of the past decade, which combined to put the kibosh on discussing teaching in those terms. (Here is a 2020 piece by a French [naturellement!] philosopher on the general subject.)

Emre's particular interest is in transference: how it continues to function even after we have criticized and dispensed with or sublimated the "erotic" element in favor of other models of teacher-student relationship in higher education. She writes:

Transference, then, is the baby that got thrown out with the bathwater of “the erotics of the classroom,” once that water became thoroughly sexualized and thus taboo. To reinstate it as a useful way of understanding what occurs on campuses requires recognizing what the arguments above do not: that, for the vast majority of teachers, the affective feelings of the classroom are not experienced as romantic, let alone sexual, desire. Those who teach know the variety of roles we can be conscripted into—mother, father, sibling, best friend, therapist, priest, idol, nemesis—just as we know, or at least sense, which of these roles we are willing to play at different moments in our lives, which fantasies of love we will honor and which we will deflate, ignore, or reject. I remember when my former dissertation adviser predicted that, once I had children of my own, I would no longer feel energized by acting as a foster mother to my students. She was correct; now I feel a shudder of unease when a teacher reveals, almost always on social media, that she has baked something for her class, or that she has accommodated an abnormal number of absences or late assignments, in a magnanimous gesture of “care.”

In casual conversation, especially during the pandemic, the emergent discourse of “care,” as a friend suggested to me, has emerged as the positive transferential counterpart of the negative language of “harm” and “trauma.” The teacher’s declarations of care are, at once, a way of soliciting transference-love from her students and a way of permitting herself to respond in kind. Unawareness of transference as a concept means that the teacher can remain not just ignorant of what she is doing but proud of it—of wanting to love her students and to be loved by them in return. Here, countertransference works to mask and to compensate for the disproportionate care work performed by so-called Professor Moms, whose performance of support and service disadvantaged them in assessments of their productivity.

But Emre's goal is not to rest with the basic point that "Professor Moms" are under-compensated for their care--a perfectly valid point that one sees played out in law schools and elsewhere--while leaving in place the assumption that a "care"-based vision of the student-teacher relationship is a good one. She questions that model, and suggests that "the psychological dynamics at play between teachers and students" are at work in many recent campus controversies that we see primarily as free speech or culture-war issues. In the case of Erika López Prater, for example, the adjunct professor who was fired for showing a picture of Mohammed in a global art history class, she suggests that too little attention was given to the complaining student's suggestion that a professor "is supposed to be my role model," a claim she sees as moving but not necessarily correct or without peril. She concludes:

To adjust our language to account for transference could be the first step toward a collective act of growing up. Adjustment does not involve rejection or scorn. It is easy to mock the language of harm and violence, or to dismiss it as “woke.” What is more difficult is to craft an alternative language—a language that refuses to negate the real feelings of dismay that arise when authority figures fail to live up to the fantasies or expectations projected onto them, but that also refuses to describe this failure as an act of violence, or to treat it as a punishable offense.

I don't end up in precisely the same place as Emre, but that's hardly reason not to recommend the piece. It is frank in discussing the ways in which transference and counter-transference, their complexities, and their emotional weight and consequences continue to play out in the classroom, even if we dispense with the language of erotics in favor of one of "care" or "trauma" or similar terms. My own view--consistent with hers, I think, if pitched in a different direction--is that a recognition of the needs of students does not preclude questioning seriously and critiquing any vision of the adult classroom that envisions it as a caregiving or familial space rather than a professional one. Treating it as a professional space cannot mean pretending that questions of care, or of erotics for that matter, disappear from it. They don't. Treating it as a place of care and family, on the other hand, should not preclude recognizing and confronting how dangerous, potentially explosive, and possibly misplaced that language or sensibility is in the classroom--for teacher and student alike. 

The same dynamic is at play in the larger institutional context of universities. I remember arguing with some professorial friends a couple of summers ago about whether it is sound for universities and their presidents, in the statements they so love to offer at fraught moments, to call the university a "family." The air was full of statements about the university "family" that summer. Of course one can argue that the choice of words, as in most official statements, is more or less meaningless, as all statements and press releases arguably are. I don't think it is, if it reflects an actual mistaken vision on the part of administrations. But in any event, we were not arguing on these grounds, but rather about whether the university can be said to be a family. They thought it was correct and utterly natural; I thought it was mistaken and dangerous. A postscript: They were wrong; I was right. Only a family is a family. A university is certainly an institution. And a university can be a "community," whose members' roles and mutual obligations are very close but not familial. But it is not a family, and--as Emre suggests--many campus controversies can be said to involve the perilous and counter-institutional dynamics that arise when it is treated as one. Families deal with controversies in one way; institutions in another. And adopting and trying to follow the dynamic of university as "family" is particularly dangerous--again, for students and teachers alike, as well as for universities as institutions--if, as is too often the case, administrators, for market- and character-based reasons, are weak or cowardly, and thus unwilling or unable to play the backstop role of authority that is necessary in both families and institutions. 

In any event, there's much to be gained from Emre's piece. Enjoy.   

 

Posted by Paul Horwitz on July 12, 2023 at 01:29 PM in Paul Horwitz | Permalink | Comments (0)

Tuesday, July 11, 2023

On Stirring Once and Letting Sit

The New Republic has been uncontroversially awful since 2014, at the very latest. But I found this article worth a look. It's a book review on a fairly standard topic: arguments over the nature of recipes and their interpretation.

Without judging the book that serves as the review's platform, I cannot say that the review itself says anything original. (I refer to the review below rather than the book for this reason, although some of the points noted come from the book. There are precedents.) Because it's in the contemporary TNR, one has to endure the usual ritual invocation of phrases that play no actual role in the discussion, ie. "the larger inequities that underpin the systems of production," a phrase whose ritual nature is revealed in the very fact that it is intoned in passing. (We are, at least, mercifully spared the "contradictions of late capitalism" portion of the liturgy.) But it nicely lays out some of the basics of this sort of debate: whether one should or even can strictly follow a recipe, how recipes themselves change, how following a recipe itself changes, and the now-familiar, if in this case poorly phrased, point that the recipe is "a text every bit as worthy of serious attention as other forms of academic study."

What I found useful about the piece is that it almost avoids taking sides in the debate, and at least acknowledges the value of the recipe and (relative) obedience to it, and of "the repetition of familiar tasks," as such, alongside the conventional arguments against recipes. It praises the book's author for her "clever critique of psychoanalyst D.W. Winnicott’s dismissive treatment of those who follow recipes" in an essay that "derided the use of recipes as 'slavish,' the antithesis of living creatively." In doing so, it notes that the recipe that formed the basis of Winnicott's critical essay, "in its brevity[,] leaves much open to interpretation." But it doesn't, I think, see that as the core flaw of Winnicott's essay; instead, it focuses on the degree to which Winnicott's "theorizing about what it is to live 'creatively'" ignores the value of following a recipe as "part of a larger dialogue between past and present." Although the review, at least, doesn't fully develop the point, it hints at other lines of argument. Following a recipe, even "slavishly," can be preferable, for both cook and diner, to turning every act of cooking into a search for an allegedly "authentic" or "creative" act (as in the author's enjoyment of the "ethereal quality" of Krispy Kreme doughnuts, which is achieved through obedience, not deviation). Attempting to obey the recipe, and thus to live within constraint, can itself be a challenging, disciplining, and rewarding activity. More than that, the repeated effort to obey a recipe, the repeated performance of "familiar tasks," can itself be enriching, can itself be an ongoing form of "dialogue between past and present," including the past and present of the person engaged in the repeated activity of recipe-following. It can, in short, form and embody a tradition.

The review is also usefully revealing for what it does poorly and rather automatically. The headline is useful here. The oft-given advice to ignore headlines is not quite right. They can mislead as to the content of the actual writing atop which they sit. But they can reveal a lot about the thinking of the headline writer, which may indicate the views of that individual, but can also reveal what the headline writer, and the editor or publisher of that journal, thinks readers will or ought to find interesting about the piece. Even when they are wildly misleading, the ways in which they mislead can thus be worth examining. In this case, the headline is, "The Food Writer Who Wants to Free the Recipe"--a revealingly half-accurate thought, since the review and book are also about the ways in which the recipe can be freeing. In the review itself, there is a reference to cooking as an activity "through which pleasure, desire, and resistance can be expressed," and to the kitchen as "a space where freedom...and desire meet." There are standard words and phrases like "liberating," "subversive," and "blow up." That they appear alongside appreciations of the value of repetition and familiarity and criticisms of the reflexive praise of "creativity" is not a sign of intellectual richness. Rather, it's an indication of how powerful, and almost mandatory in our culture, the myths of "creativity" and "subversiveness" can be. The extent to which the review simply, unconsciously takes it for granted that things like "pleasure, desire, and resistance," freedom, subversion, and so on are positive goods, rather than qualities that can be good or bad, appropriate or inapt, is striking--not just because of what it suggests about the writer, but, again, because of what it suggests about the writer's assumptions about the audience's assumptions. It suggests, perhaps accurately as a view of the magazine's market but certainly revealingly, a level of anxiety about departing from a cultural script that praises creativity, freedom, and "resistance"--even in the context of an essay that argues that these are not the only values worth praising, that recipes are valuable, and that repeatedly following them can be an enriching activity.

It's a short review, and the topic is not new. But it's usefully thought-provoking, both in its acknowledgment of the value of both freedom and obedience, of "creativity" and tradition--and in the discomfort of both the writer and the magazine about the fact that both are valuable. 

Posted by Paul Horwitz on July 11, 2023 at 11:01 AM in Paul Horwitz | Permalink | Comments (0)

Monday, July 10, 2023

University of Alabama Law Hiring Notice

I'm happy to pass along this message from my colleagues and betters:

The University of Alabama School of Law seeks to fill up to five tenure-track positions for the 2024-25 academic year. Candidates must have outstanding academic credentials, including a J.D. from an accredited law school or an equivalent degree (such as a Ph.D. in a related field). Entry-level candidates should demonstrate potential for strong teaching and scholarship. Qualified applicants in any of the following areas will be considered: civil procedure, criminal law, torts, property, environmental, business (all sub-fields), antitrust, healthcare, intellectual property, legal ethics, evidence, election law, employment/labor, state & local law, and law & economics. We welcome applications from candidates who approach scholarship from a variety of perspectives and methods. The University embraces diversity in its faculty, students, and staff, and we welcome applications from those who would add to the diversity of our academic community.

Salary, benefits, and research support will be nationally competitive. All applications are confidential to the extent permitted by state and federal law. These positions will remain open until filled. Questions should be directed to Benjamin McMichael, Chair of the Faculty Appointments Committee ([email protected]). Interested candidates can apply online at https://careers.ua.edu/jobs/search/law.

Visit UA’s employment website at https://careers.ua.edu/home for more information. The University of Alabama is an equal-opportunity employer (EOE), including an EOE of protected vets and individuals with disabilities.

I will add that 1) I believe the next few years will be an exciting time at my school and 2) the students are really, really incredible. 

Posted by Paul Horwitz on July 10, 2023 at 12:13 PM in Paul Horwitz | Permalink | Comments (0)

Friday, July 07, 2023

A Correction, and a Slightly Different Take, on Roberts's Quote

I have one correction to make about the quote Steve focuses on below, and a slightly different take, spurred less by his post than by a similar conversation I saw earlier this week. My take on Roberts's (full) quote is still ultimately critical, but starts from an effort to offer a more charitable interpretation and see where it leads. 

The correction is simple and, I think, a fair one. Steve writes that Roberts "is displeased with some language in Justice Kagan's strong dissent in Biden v. Nebraska," citing as evidence the quote he excerpts in his post. Maybe he is! But the longer version of Roberts's passage is at some pains to say otherwise: "It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary....Reasonable minds may disagree with our analysis—in fact, at least three do. See post, p. ___ (KAGAN, J., dissenting). We do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country." 

I think a fair reading of the entire paragraph makes clear that: 1) Roberts does think some recent opinions have gone too far; 2) he expressly disclaims the view that Kagan's dissent does so; 3) he believes there is a difference between heartfelt disagreement and disparagement; and 4) he wants to make clear to "the public" that there is such a difference, in order to avoid "misperception." If there is a beef, it is expressly, at least officially speaking, not between "Kagan and the Chief," but between "the Chief and 'some recent opinions' other than this particular dissent by Justice Kagan." (For the same reason, I think that whatever meritorious points it may make along the way, albeit sometimes by way of diversion, this recent piece by Richard Hasen, which omits the "reasonable minds" language and obscures the language about the difference between disagreement and disparagement, is also in error.) 

My own take on Roberts's statement, as I said, is both critical and more charitable; I come neither to praise nor to bury him. My reading proceeds on the belief that when one can manage it, an effort at charitable interpretation can yield more interesting observations--including more interesting critical observations--than one that either makes casual assumptions about the writer's motives or plucks at low-hanging fruit. With due respect to Steve, I think accusations of hypocrisy are almost always the low-hanging fruit in what passes for public debate. Hypocrisy is a virtually universal human vice and, what is worse, an uninteresting one. (On the other hand, integrity is a very interesting and perhaps rare human virtue. Discussions of failures of integrity are similar to accusations of hypocrisy, but there are differences between the two, and the former subject is in my view a more interesting and valuable avenue to explore.)

What might the best version of Roberts's passage say? Not the best reading, as I make clear. Rather, if we were to try to develop the thought, what might it look like? I think it would make two or three kinds of distinctions. The first is between dissents that argue, however strongly, that the majority is dead wrong, and dissents that argue that the majority is, in effect, not even wrong, because it is not engaged in "law" at all, but simply operating lawlessly, by raw power. The second is between dissents that argue that some decision by the majority, however sincerely it was arrived at and in however lawyerly a fashion, in fact falls outside the Article III power of the federal courts, properly understood, and dissents that argue that the majority has deliberately ignored or abdicated its judicial role--that the judges themselves have deliberately cast off any sense of judicial duty in order to assert their power. The third distinction, which is perhaps just a general one that includes the first two within it, is between dissents that criticize a decision as wrong and those that criticize a decision, or the institution itself, as illegitimate.

Of course these distinctions, and the distinctions between the different types of distinction, are not firm in practice; they may not be solid conceptually (I reserve judgment on that question); and they certainly will give rise to differences of view, which no doubt will be heavily influenced by one's politics and jurisprudence, about whether a particular statement falls on one side of the line or the other. But I think they're meaningful despite those concerns.

On this view, it is absolutely fine to argue that a majority is dead wrong. A reading of the full passage makes clear that Roberts agrees. It is also, at least in my charitable reading (but see below), fine to argue that a majority is wrong in its view of the role and limits of the federal courts--that its view is either too broad or too narrow in its understanding of the judicial power. In both cases, there is a distinction between these criticisms and an argument or assertion that one's opponents are wrong not because their jurisprudence or its application is wrong in general or mistaken in application, but because they are simply indifferent to any such questions; that they have abandoned even a mistaken effort to act judicially, and are instead imposing pure will without any trace of judgment, to paraphrase Hamilton.

That is the illegitimacy criticism. This is the focus of Roberts's concern. As I noted, there will surely be differences of opinion about when a court has acted wrongly and when it has acted illegitimately. Among those with some (perhaps too much) immersion in the law and its ways of thinking, those differences will be more thoughtful, but still influenced by one's politics, one's jurisprudence, and, harder to pinpoint but I dare say just as important, one's temperament. Among those with little knowledge of or interest in the intricacies or norms of legal decision-making, the move from thinking a decision wrong to thinking that it, and the institution that issued it, is illegitimate will be reached more quickly, ignorantly, and perhaps carelessly. 

It does not seem unreasonable to me to take such distinctions seriously, even with their imperfections. Indeed, most of the critics I have seen of Roberts's sentence (I won't say "paragraph," because those criticisms rarely quote the whole thing) take those distinctions seriously themselves. They point to one statement or another by some justice--perhaps Roberts, perhaps Scalia, perhaps someone else--that they think falls on the wrong side of the line, and thus demonstrates hypocrisy or irony or some other failing on Roberts's part. (In our fallen, bumper-sticker lingo, I believe this is called "whataboutism" and is generally frowned upon. I find criticisms of "whataboutism," "both-sides-ism," and similar idiot phrases uninteresting. What I do find deficient in such accusations is that they treat what ought to be the beginning of a line of argument, one that needs to be developed and teased out and may land in unexpected places, as the end of the argument.) If those critics were actual critical types, they might end up somewhere more interesting. For instance, they might conclude that since law is the strategic exercise of rhetoric for purposes of power, it's all in the game. Accusations of illegitimacy from the judicial left or right, and counter-criticisms of accusations of illegitimacy from the judicial left or right, are all simply standard current moves to be deployed. not necessarily wisely but certainly not, so to speak, illegitimately. But they're not crits; they're legal liberals. So that move, or at least full candor on this point, is not available to them. They are obliged to have faith in the distinction, and are limited to trading accusations about whose shoe is on which foot. (In most cases, I presume, this self-limitation is sincere, even if it suggests a possible lack of self-awareness. Surely there are others for whom the accusation is indeed in bad faith; they do think it's all in the game, but are willing to accuse one side of exercising raw power even if they think that side was exercising judgment and not just will, or even if they think there is never more going on than pure will. For such critics, the failure is not one of coherence, but of honesty and integrity. If they are scholars, this would also be a professionally disqualifying failure.) 

I'm inclined to think, but without strong conviction on this point absent a serious second look, that some recent dissents have fallen on the wrong side of the line. I'm also inclined to think that some past dissents have fallen on the wrong side of that line. Again, there will be differences about when this is the case. In my view, this sometimes comes down to a matter of tone. It's easy for an argument that one's judicial colleagues have acted outside the proper scope of the judicial duty to slide into an accusation that they have acted arbitrarily or outrageously or for reasons of pure politics; it's a matter of a hot temper, a few too many angry words, and too little willingness to excise a pithy but unnecessary word or phrase. It would not be wrong, on this view, for Justice Scalia to argue in dissent that a majority was fundamentally mistaken in its view of the role of the courts. But it would also be easy for him to take a step too far, to be too enamored of his own writing, and so to turn the criticism into a personal or institutional attack. Sometimes he most definitely did so; but not every dissent that argues that the majority has misunderstood the role and duty of the courts, either by going too far or by shirking its responsibility, would qualify. 

I also think it's reasonable to worry about language in opinions being used strategically by "the public" to further some point of its own about the legitimacy of the Court, a point that the opinion writer him- or herself might disagree with. The world is full of fools, knaves, and social media accounts, with a substantial overlap among them. I doubt that a caution like the one Roberts offers here would do the slightest good; and because it doesn't, it may do some harm, by seeming (or being) fatuous or futile or defensive. But the concern it expresses is not unreasonable as such.

I find Roberts's passage weakest in three or four things. The first is debatable. He might have illustrated his point with specific examples. One can understand why he didn't, of course. Second, and here I think his passage is at its weakest and my reconstruction is at its most charitable and creative, he elides arguments that a decision is "going beyond the proper role of the judiciary" with arguments that engage in "disparagement" of the majority and the institution rather than "disagreement." The proper role of the judiciary is a legitimate subject for disagreement between judges, it can be raised without broader personal or institutional disparagement, and--as critics of Roberts's passage emphasize--it has been raised, by judges including Roberts. I think Roberts wants to say (or ought to want to say) that it should be possible to air even fundamental disagreements about the judicial role without suggesting that the ostensibly erring side simply doesn't give a damn about law or judging as such, and that a failure to make the difference clear is damaging to the institution qua institution. Maybe that's not what he wanted to say. But if it was, he could have said it more clearly. Third, I'm not sure his passage is aimed at the right target. Most of the worst stuff along these lines is not coming from dissenting judges, but from the "public" he is purporting to address.

Finally, I found his use of the phrase "the public" vacuous. I will stipulate that there is some "public" that consists of individuals who are interested enough in the Court to pay some attention, not so much to its opinions, but to commentators using and abusing language from those opinions. I'm not at all sure that this "public," which again largely has its mayfly existence on social media, is "the public" or an especially representative public. There is a much larger public that doesn't care at all about such matters, or that thinks ill of the Court as an institution in part because of current politics, in part because it has come to distrust institutions generally, and, in a broader sense, because many people seem to no longer comprehend or care about the idea of institutions as such. And then there is the "public" that consists of paid professionals, people who depend for their living or for the reputational goods they seek on either digging up real or imagined evidence that the Court is illegitimate and then broadcasting it in the most florid terms, or digging up any possible argument that the Court is not illegitimate and broadcasting it in equally florid language. Whether we should pay the slightest attention to such paid employees of the political ecosystem and its donor class, and in what sense they can be said to be "the public" at all, are separate questions. But on the whole, I doubt that "the public," as Roberts uses it here, has much descriptive value.   

Posted by Paul Horwitz on July 7, 2023 at 03:30 PM in Paul Horwitz | Permalink | Comments (0)

Thursday, July 06, 2023

Webinar on Harvard/UNC decision

The University of Texas Law School is holding today what looks like an interesting "webinar" (their name, not mine!) on the recent affirmative action decision. Details are here. It is one of what should be several recent valuable events on the decision--none of which, to be clear, are likely to be hosted by the AALS, whose programming on this and other issues this year has been glaringly bad. 

Posted by Paul Horwitz on July 6, 2023 at 11:50 AM in Paul Horwitz | Permalink | Comments (2)

Sunday, July 02, 2023

The Times Fails at History and Irony at the Same Time

As a former journalist who relies on the Times for basic news, and who believes the value of the best legacy media is particularly important in an age of cheap, bad, and disappearing journalism, I often lament weaknesses in that newspaper--many of which, ironically, stem from steps it took to fend off or hire from new media. As a Canadian and tragedian, and perhaps as a member of Gen X, I regularly bemoan Americans' remarkable lack of irony, a quality which is both a vice and a basic requirement for intelligent civilization. An awareness of history, something whose absence I also lament, is a prerequisite for both good journalism and a sense of irony. 

The Times, remarkably, shows the absence of all three in its lead story today. Anyone who writes about affirmative action ought to know about Bakke. I offer no view on the ultimate survivability of the policy discussed in today's story. But any soi-disant great newspaper whose lead headline could be rephrased as "UC-Davis Medical School Confident About its Admissions Scheme," and which does not so much as mention Bakke, clearly needs to work on its sense of history, irony, and basic quality. 

Posted by Paul Horwitz on July 2, 2023 at 09:17 AM in Paul Horwitz | Permalink | Comments (0)

Thursday, June 29, 2023

What's Funny About Compliance(?)

For different reasons than mine, Steve points to a Washington Free Beacon story describing the First Amendment training implemented for students at Stanford as "a campus joke." The training, according to the story, consisted of watching five one-hour videos and then signing a form attesting that the students had watched them. "The videos could be played on mute," the story says, "and the form—which could be accessed without opening the training—did not ask any questions about their content, letting students tune out the modules or skip them entirely." 

Steve is concerned, with justification, about students unethically lying and signing the attestation form without watching the videos. My interest lies elsewhere, with what Steve calls the "vapid requirement" itself. Let me be clear that I think the Free Beacon, an openly conservative paper, is valuable, and Aaron Sibarium, who wrote the story and did much of the original reporting on Stanford, performs a useful function, doing real reporting on stories that would have been covered by the legacy papers if they had a different spin and sometimes forcing those papers to cover them. But of course the paper, which is openly and often puerilely political, always has a spin (not uncommon, these days, in fairness; God help us, people seem to want it), and in this case Sibarium's spin of choice is that Stanford's First Amendment requirement, which was much praised when it was announced, is in reality a big joke. 

I would ask, a joke compared to what? The attestation mechanism is certainly badly arranged and subject to easy abuse. But five hours of First Amendment "training" is pretty serious! (I'm not sure the students actually needed that specific training. Five hours of civility training, accompanied by clear instruction in campus disciplinary rules, would have been much more to the point. Naturally, students would be free to challenge the notion of civility; but then, they're free to challenge the value of the First Amendment too.)

In reading the story, surely the mind of every professor, and indeed every employee of a large institution, turns to his or her own "training" in various matters. Every year my university requires me to learn and relearn basic facts about sexual harassment, hazardous materials, Internet safety and security, mandatory reporting requirements, and so on. Some of those videos can probably be muted; who bothers to remember? Many of them can be played at accelerated speeds. Most of them can be at least half-ignored; even the ones that require you to answer questions along the way are, shall we say, undemanding of one's attention. All of them signify and embody the deepest, most strongly held value of universities and other major institutions in our changing world: that such institutions should loudly announce their virtuous compliance with whatever is legally or socially required, and that every member of that institution should do his or her utmost to establish on the record that the institution is blameless for whatever happens next.

It seems to me that Stanford very seriously performed its duty here. If students (or Sibarium) think that training is a "campus joke," they should spend some time watching professors and staff receiving university-mandated "training" in other core topics. Or the law students could get an advance peek at the kinds of things that can count as continuing legal education for purposes of the California bar's gargantuan CLE requirement. (They will have to go further than the nearby faculty offices, since California exempts full-time law professors, for reasons that escape me.) I'm not a member of that bar but, based on what I have seen up close, one can accomplish an enormous amount of paperwork and cook several elaborate meals while receiving further legal education comporting with that state bar's requirements. Of course I would look unkindly on a lawyer literally lying about having watched a training video or other CLE unit. But--as with judicial ethics requirements, I would add, in light of other conversations--there can be a long gap between technical compliance and honorable, attentive compliance. The wonderful thing about most compliance requirements is that you don't have to lie, because you barely have to do anything in the first place.

I'm not quite knocking CLE requirements. I'm not quite knocking other compliance regimes. I'm not quite saying such regimes blur the line between having a value--such as concern with equity, sexual and other forms of harassment, and other things trumpeted by the kinds of institutions many of us belong to--and performing that value for purposes of PR and legal indemnification, in a way that renders those repeated institutional statements about their strongly held values rather hollow. I would say that any humor lies not in Stanford's reasonably serious effort, but in the larger universe of compliance rituals of which it is just a small part. We, in particular, ought not be surprised, given that "compliance studies" and "compliance certificates" have become a major source of law school income. 

Posted by Paul Horwitz on June 29, 2023 at 03:23 PM in Paul Horwitz | Permalink | Comments (0)

Friday, June 16, 2023

Now *That* is a Utility Vehicle

Lawyers may be excited to learn, from a story in my home state's Al.com, that Mercedes is enabling drivers of more than 900,000 of its vehicles to access ChatGPT through the cars' voice control system. Now we will be able to enjoy the efficiency and convenience of writing briefs while we commute.  

Posted by Paul Horwitz on June 16, 2023 at 12:41 PM in Paul Horwitz | Permalink | Comments (0)

Thursday, June 01, 2023

Boudin, Berkeley Launch Center for the Study of the Matthew Effect

The actual name and purported goal of the center are different, but believe me, the interesting object of study here is the Matthew Effect. The fortunate Mr. Boudin will join countless other holders of sinecures at major law schools and more or less non-profit organizations. 

(Incidentally, this isn't the draft political post I mentioned earlier today. I deny that this is a political post. Noting the phenomenon by which social class, fame, connections, appropriate political views, and a completed or failed political career, or some combination thereof, ensure that one will always be gainfully and/or conveniently employed by fancy organizations is not political; it's merely descriptive. Cincinnatus was a sucker.)   

Posted by Paul Horwitz on June 1, 2023 at 12:25 PM in Paul Horwitz | Permalink | Comments (0)

A Few Thoughts on Our Delightful, Antiquated Enterprise of Blogging

Brian Leiter writes today in his indispensable (?) Leiter Reports blog that "While Twitter has taken a toll on blogs generally, this one is still going remarkably strong, averaging well over three million unique visitors per year, so it seems a good time to begin phasing into blog retirement while it's still widely read and influential." He adds that it will be a "multi-year phasing." It occasions a few thoughts on the nature of the enterprise. The first, quite simply, is that I am sorry. Not being a philosopher, my reading of that blog is a little like watching a game of inside baseball while not knowing the sport well. But many posts are for more or less general readers, and they are interesting and spirited. Indeed, I wish his law school blog was more like his philosophy blog, that it more frequently tilted against whatever he may see as failings in our own corner of the academy. But it has long been a valued daily read, and if and when the time comes for it to go I shall miss it. (I suppose I could always read the Daily Nous. But I jest.) 

Second, I continue to believe the legal-academic blog fills a potentially useful space between social media and full-dress academic writing. The most important way it does so is not, as it once was, in terms of immediacy, but in terms of length: not everything worth saying is worth saying, or can be said, in 280-character stretches. (In my view, nothing worth saying can be said in 280-character stretches.) The second value it serves is its availability as a space to write about the academic life. I find academia greatly interesting as a sociological, anthropological, literary, and economic enterprise. It's in the nature of things that most articles don't say much that's new or terribly interesting, novelty claims notwithstanding. The job of the scholar as reader is thus largely one of sorting and winnowing. But how we write (or teach, or serve, or lateral, or govern, or fail to govern) I find endlessly fascinating. And all this has a direct relationship to what we write, what we don't write, often enough to why we write, whether and where this writing is published, and how it is received. It is a truism, albeit one that is selectively recalled and applied, that judges are political actors, affected by their context and bias, by the cases that come before them or are ignored or avoided, by the means of production of both judges and cases, and so on. Of course the same is true of legal scholarship, among other things we do as academics. Selectively applied, as I say. I hear a great deal about Koch money, for example, and almost nothing about Proteus Fund or Soros money; writing in non-conservative spaces about the influence on the legal academy of left-liberal heirs and plutocrats tends to be acceptable mostly if it's devoted to the past, such as writing about the influence of the Ford Foundation on clinical legal education in the late 60s and early 70s. But our choices are influenced by much more than money, and I would like to see more writing about how fads, fashions, the love of fame, and other factors leave their fingerprints all over what we do, rather than treating our work as if it emerged fully grown from Zeus's head.

There's room for more full-length writing about this in legal journals. But it's understandable that most of us, most of the time, prefer to write scholarship about the ideas themselves and not about their production. The latter can seem self-indulgent, and in any event most scholars are more interested in ideas themselves, whatever the sources of their encouragement, mediation, and corruption, than about the production of those ideas. We're not really a reflective or introspective bunch. (Given our long interdisciplinary trend, one would think there would be more room to hire and publish sociologists and anthropologists of the legal academy. But those are not the most common fields we hire from, and most of those we do hire write about the world outside their own gates. In raw numbers we probably have more people qualified to study the nature of our own enterprise than ever before, but the high-water mark of writing of this sort passed when the Crits fell out of favor.) It also might seem rude or perilous--another way in which the behind-the-scenes element affects what is seen in print. And there's yet another factor that suggests the sociological/means-of-production influence on what we do as legal scholars: such writing would have to be seen as interesting by the law students to whom we have, oddly, delegated the job of making publication decisions. Moreover, a scholar who went down that path might well be cautious or selective, given that the students themselves would surely be a subject of study, sometimes with unflattering results. (Mutually unflattering results, since student choices reflect the willingness or unwillingness of faculty to do something about them.) That kind of timorousness doesn't vanish because the space for writing is the blog--or, for that matter, Twitter, where the audience is larger and the timorousness is if anything much greater--rather than a law journal. Nevertheless, one sees more writing about these kinds of subjects in blogs than in law reviews, and I would miss it if it vanished.

Third, for me at least, one generally unstated reason to keep Prawfs going is our departed, murdered friend Dan Markel. I like it that his baby is still here. Not that I doubt Dan himself would have taken to Twitter eagerly and over-enthusiastically. But even if that makes Prawfs itself rather a historically contingent artifact, I still feel the desire and obligation to keep it alive, long past that hoped-for time when the last culpable Adelson is in prison.

Finally, I'd like to add a word to what Howard wrote on this blog a few weeks ago about legal blogs (and the legal academy generally) and political diversity and polarization. Howard asked whether Prawfs "does okay on this" and answered "yes," with room for improvement. I was sympathetic to this view, which was discussed entre nous before appearing in a post. I still am. Granted, talking about diversity among a group of small-l liberals ranging in their views from A to C may be like describing M&M's as varied because there are so many colors. But within that category, there are political and subject-matter differences among us. We don't all write with the same frequency, and that matters. But Howard's posts are different from mine, even apart from questions of economy versus excessive length, just as Howard's posts are different from Rick's and Rick's are different from other-Rick's. 

That said, I don't think I fully appreciated at the time the importance of what we write about from our varied perspectives, and the dynamic that is created once anyone writes about politics. If a person with one set of views chooses to write a post that is openly political--or, more often, a post about the law into which politics enters through the stray remark, casual imprecation, or incidental overconfident assertion about supposed matters of fact--the way diversity enters into things is that a co-blogger with different views challenges those remarks. The result is a series of posts about politics, or political posts. And then the blog becomes a place of disagreement about politics, a site whose subject is politics. That's just a politically diverse downward spiral, inasmuch as politics itself is a blindingly boring subject and our best selves are rarely on display in such disagreements. It still polarizes, simply by focusing on politics, a subject that these days is almost inherently polarizing. It also plays away from our strengths, given that law professors, like everyone else, have a lot of confidence about, but very little expertise or insight concerning, politics. God save us from a legal blog about politics, or a political legal blog, diverse or otherwise.

So I think I'd have to revise my initial agreement with Howard's post, and at least make it a "yes, but." It's good that different perspectives can be found here. It would be nice if there were even more. But the best way to avoid both the unpleasantness and the tedious and blindered nature of polarization is not to field two or more teams, but to not play the game at all. (How about a nice game of chess?) Prawfs always focused more on writing about being a legal academic than on legal academics writing about, inter alia, political subjects. That gave it a real, albeit a narrow, focus and audience. I hope that continues to be our forte and, on the whole (and with the ironic knowledge that I have a post brewing that brings in politics) our primary area. The means of production and the background influences on our work continue to be relevant to what law professors do, and those influences continue to change. The rise of fellowships as the primary path to teaching means both that entry-level professors are better-informed, but also creates new reservoirs of quite incorrect shared lore. Changes in the student body create opportunities for new ways of teaching--and new student desires that ought to be resisted or rejeced. Changes in the mission of law journals--changes apparent to everyone but discussed less openly by the professors than by the students themselves--rejig the endless status game and deserve full treatment and criticism (or praise). Fads and fashions always change: Is the proper phrase "this is the first article to..." or "this Article, the first to...?" Is there any topic to which one can't append the phrase "The Political Economy of," and how many spots in the rankings that we all loudly reject will that title choice help the article climb? The money rolls in. or rolls out, each with attendant effects. Obviously, changes in technology create new topics to explore. So, even as we grow older and wiser and thus know less and less, there is still plenty to write about in what used to be our particular sandbox, rather than focusing on the world's oldest and most boring subject.  

Posted by Paul Horwitz on June 1, 2023 at 10:04 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, May 31, 2023

Steve Shiffrin and Our Luck

Mike Dorf reports that Steve Shiffrin, an emeritus professor at Cornell Law and a leading scholar on the First Amendment, has died. I am particularly grateful for his books The First Amendment, Democracy, and Romance and Dissent, Injustice, and the Meanings of America and the excellent First Amendment casebook of which he was a co-editor, and for his articles Religion and DemocracyThe Pluralistic Foundations of the Religion Clauses, and The Dark Side of the First Amendment. One could add many more major contributions to the list. On a personal and a scholarly level, he will be missed.

One thing I didn't know about Steve, and discovered upon looking at his faculty page just now, is that he was a night student in law school, at Loyola Los Angeles, where he was editor of the law review and first in his class. He also did graduate work in "Speech Communication" at UCLA, but remained ABD. These are real accomplishments, and anyone who has taught night students will tell you they can be some of the finest and certainly some of the most serious and dedicated students one has the privilege of teaching. Nevertheless, they depart from the conventional paths to law teaching, then and now. His students, colleagues, and readers have cause to be grateful that this didn't stop him and that various people along the way must have seen his promise and offered him the opportunities of which he made full use. Sarah Lawsky's annual entry-level hiring report indicates that a decent number of people still emerge from elsewhere than the usual schools and fellowships but that the usual suspects remain the norm. What we get from looking under the lamppost, as we do so often when hiring, is not so much brilliance as it is safety and efficiency (as well as conventionality, although I'm not sure this is something law schools are actively seeking by putting students through the standardization process of fellowships; it may be more of a side-effect). What we lose is the potential reward of simple chance and raw promise. It's a loss to be lamented, and a reason both to look more widely when hiring and to reconsider the deadening effects of the high tenure rates that prevail in American law schools. 

Posted by Paul Horwitz on May 31, 2023 at 05:00 PM in Paul Horwitz | Permalink | Comments (0)

Tuesday, May 30, 2023

Alabama Law Review Symposium: The End of Animus: The Lifespan of Impermissible Purposes--In Print

The Alabama Law Review recently published its symposium issue from last year's Law Review Symposium on "The End of Animus." I heartily recommend it. The word "end" here has two meanings. The primary meaning is temporal, asking how long a judicial finding of impermissible purpose or animus does or should remain in place and how (or whether) it can be ended. It's a question raised by several recent cases, such as Ramos v. Louisiana and Trump v. Hawaii. My general sense of the scholarly (and judicial) literature is that much more attention is devoted to the front-end question of how to get a finding of impermissible purpose than to the question of how or when it ends, and it seems to me that the latter question deserves more attention for anyone interested in questions of sound political and legal governance. The second sense of the word has to do with whether "animus" as a legal tool itself ought to be questioned and perhaps done away with. The contributors to the symposium--William Araiza, Dale Carpenter, Michael Coenen, Andrew Hayashi, Joy Milligan, and Robert Tsai--have a great deal of value to say on both questions. Read it now! (In the category of encouraging student efforts to grapple with jurisprudential questions, may I also call your attention to a recent student note, available on the same page, by Matthew T. Still, titled "St. Thomas Confounds Vermeule: A Thomistic Critique of Professor Vermeule's Conservative Anti-Originalism.")

A parting word on "print," which is never dead but often in the process of being wounded: As valuable as I find the ready accessibility of law reviews and law review articles on their own sites and at SSRN, I confess to missing the feeling of law review issues as "books" taking a physical form. Services providing law review tables of contents have faded, partly in response to technological changes and partly as a result of library budget cuts and changes. At least in my case, which I don't think is totally idiosyncratic, COVID cut back on my visit to the library to peruse the actual new print issues in their natural habitat. Another easy budget cut is for law schools to stop subsidizing the production of extra copies and for law reviews to stop sending their new print issues to each member of the faculty. All of this, I think, is a loss whose possible effects--a disconnection between a faculty and its own journal(s), a slackening of interest in individual issues planned for impact as issues, a further reduction in the number of book reviews (since they fall between the stools for both authors and editors and may have less metrical "impact," and a general contribution to our collective disembodiment--are not worried about enough. I wonder whether the sense that the notion of a "publication date" is itself something of an artifact contributes to the increasing lateness of many journals' issues, although doubtless that has a much longer history. In any event, I lament the change and encourage law schools and law libraries not to budget the physical form out of existence, and for law reviews to continue thinking of each issue as a "book" whose contents should be planned and structured accordingly, with different sorts of features within a given issue, with the physical thing itself treated as being of continuing importance, and with copies continuing to fill up mailboxes. (And I await with some eagerness the April Book Review issue of the Michigan Law Review.)    

Posted by Paul Horwitz on May 30, 2023 at 11:25 AM in Paul Horwitz | Permalink | Comments (0)

Sunday, May 28, 2023

What Were Their Billables?!?

At the VC, Eugene had two interesting posts yesterday on intersections between Chat GPT and the practice of law. The story about the lawyer who filed a brief with an assist from Chat GPT that resulted in citations to fictional cases has had some legs in legal circles. But it's the other story that interests me. It relates a message from Prof. Dennis Crouch: "I just talked to a partner at a big firm who has received memos with fake case cites from at least two different associates." The assumption, in this context, is that those fictional cases also came courtesy of Chat GPT.

My practitioner wife, who is a model to me both for her professionalism and for her kindness and compassion, takes the view that if she were the partner she would "fire their asses" immediately. That is an entirely reasonable position. She would also report them to the bar, although this, it seems to me, actually raises interesting questions about which rules they would have broken. More specifically, did they break any rules (such as the rule requiring competence in lawyering) in a way that would lead to anything on the part of the bar other than a decision not to pursue the matter further? Did their conduct rise to the level of raising substantial questions about their honesty, trustworthiness, or fitness as a lawyer, such that reporting would be mandatory? Did they actually violate the equivalent of Rule 8.4

But I think the first and potentially most consequential question a supervising lawyer, or a client informed that something of this sort has happened (if they are so informed), or a court or opposing counsel who encounters this sort of thing in the context of a case in which hours are recorded because attorneys' fees might be awarded, is: What were those associates' billable hours on the file? If an associate turned in to me a memo or brief that turned out to have fictional cases or other flaws or errors related to the use of Chat GPT, the first question I would have is how long they said it took them to research and write that memo or brief. I might or might not fire or report to the bar an associate who used Chat GPT as an assist with a resultant error, although I think doing so, and especially firing them, is an entirely reasonable response, especially for those who value and demand professionalism. But I sure as hell would take both actions if a lawyer used AI to "research and write" something in three hours and recorded billable time of thirteen hours. Supervising lawyers, clients, in-house counsel, opposing counsel, and judges should definitely be vigilant about the billing implications of Chat GPT along with other risks.    

Posted by Paul Horwitz on May 28, 2023 at 12:35 PM in Paul Horwitz | Permalink | Comments (0)

Thursday, May 18, 2023

A Trifle Premature

I may be missing something, but it seems to me that Howard has not only fired a load of buckshot in his post below rather than aiming or firing with any precision, he has also engaged in a sort of premature expostulation.

When I read the words “according to FIRE,” I tend to assume what follows will be supporting evidence, especially if I see hyperlinks looming just ahead. And when I see something referred to as a “test,” I tend to assume the test-taker is at least registered for the class. Of course FIRE has spoken and acted on the subjects of campus heckler’s vetoes and disinvitations of campus speakers. Both are university speech issues. I have no idea what the organization thinks about comedy club disinvitations, and the story Howard links to doesn’t tell me—perhaps because until very recently, FIRE’s mission was limited to questions of university speech, and so far as I know it hasn’t been vocal on the question of comedy clubs.

Perhaps unwisely—money and mission creep are both dangerous things for organizations that have acted usefully within a more limited scope— the organization recently announced that it would be expanding into free speech issues more generally. No doubt in the fullness of time FAIR will be confronted with various “tests” of consistency. Perhaps it would be fairer to wait until then before trying to figure out the nature of that test. Like all debates, culture-war debates are of dubious value generally, but certainly become more dubious the more untethered they are from specifics. 

(As a side issue, there is no inconsistency between the Religious Test Clause, or the First Amendment as such, and the belief that faith in God is at the heart of American values. Those who drafted and ratified the Constitution and the First Amendment would no doubt be surprised by many things, but certainly not by that. I’m not sure how much we should care what they thought, or what they would think about a United States senator pronouncing on local issues of this sort, but they certainly would not have found the assertion that religious faith is a central part of American values to be “news” or to be inconsistent with prevalent notions of constitutionalism. They would have been more surprised by a contrary assertion. Even setting the anachronism aside, I think they would have been much more surprised and bemused by Senator Rubio’s assertion that something as trivial as baseball is “tied to our nation’s values.”)

Posted by Paul Horwitz on May 18, 2023 at 10:59 AM in Paul Horwitz | Permalink | Comments (0)

Sunday, May 14, 2023

A Reply to Steve: Lost and Found in Translation

I admit that when I read the title of Steve's post below, I assumed it would be about other aspects of the rhetoric in Michael McConnell's op-ed about the constitutional aspects of the debt limit debate. In an environment in which our rhetoric is permanently at risk of inflation, such that I believe there is value in putting even (what one thinks are) true statements and strong judgments in deliberately calm and moderated tones, I would have preferred that McConnell avoid a phrase like "dangerous nonsense"--even if he thinks the argument is dangerous nonsense. I say so with some reservation, since I admire the bluntness with which writers like Noel Annan delivered their judgments, with confidence and without any pretense that they were doing something other than delivering their judgments. And I too enjoy the occasional sharply delivered judgment. On the other hand, I don't think the language served a useful persuasive purpose in this particular forum, in which heated rhetoric is likely to succeed only when its purpose is to preach to the already-faithful; I think our rhetorical environment is already so polluted with sharp language that there is an overall net value in moderating it; and I frankly do not trust Americans (Annan was English) with dangerous weapons, including sharp language. That includes educated Americans. (Possible case in point: the headline writer who repeated that language. I am assuming only for these purposes that that person would count as an educated American.)  

One thing I feel fairly confident about, though, is that what Steve is actually interested in--the use of the phrase "That is not a bad thing. It is a good thing"--is not either an accidental or an ironic quotation of Chairman Mao. The general locution simply conveys a common-sense idea or argument: that, contrary to one's first impression, some purported bad thing is actually a good thing. The locution itself is English because we are dealing with a particular English translation of the original Mandarin text. I don't doubt that one could find similar phrasing in the literature and daily speech of any language. But it is never surprising to find that a translation uses phrasing familiar or sensible to the speakers of that language. (As a somewhat roundabout example, one of the quotations in chapter 5 of the Little Red Book says, with quotation marks, "War is the continuation of politics." One has to assume Mao was quoting von Clausewitz. I don't know whether, in the original Mandarin, Mao was quoting von Clausewitz in the original German or using the common English translation of that famous phrase. But whatever the case, it can't be surprising that a translator would have used what had become a common English-language version of the phrase--or that an English-language translator would use a fairly banal pairing like "bad thing" and "good thing.") It is not surprising that a phrase like this appears in either Mao or McConnell because it is not surprising that any English language speaker would use a matched pairing like this. 

If I am wrong, then the Maoist or Maoist-ironist conspiracy runs far deeper. Fifteen cases in the "all cases" database on Westlaw use similar language; in many of those cases, the language came not as part of a considered writing process but in oral statements offered in passing in court by judges, attorneys, and laypeople. (For instance, the defendant in one criminal case, who said in court about his offer to turn his children over to the state, "It's not a bad thing. It's a good thing." Or the physician who testified in an insurance dispute, "If you've got a limb that's partially paralyzed, exercise is not a bad thing for it. It's a good thing for it.") Using a conservative (if I may) estimate, close variants of the same phrase have appeared over 50 times in the law review database on Westlaw. While it is pleasant to entertain the suspicion that the legal academy really is filled with Maoists, Occam's Razor suggests that this is just a phrase that oft was thought and also oft expressed. (In fairness, Jack Balkin was one of the writers who used this locution. Still, that doesn't account for the other 49 or so times.) I am confident that the writer who, when speaking about expert evidence, said that "looking directly at the science seems a good thing, not a bad thing" was simply using readily available language, not sending a signal to the revolutionary cadre. As for irony: speaking as a Canadian, I must say that the good-money bet is always against any American speaking ironically, let alone that many Americans and still more that many American academics. It's a sadly uncultivated, sorely missing skill in these parts. That was true even back when a young Jed Purdy was, wrongly, arguing against it. 

Finally, I might note that a Google Ngram search suggests that the phrase or close variants of it have been used by English speakers long before 1939 and on any number of occasions since. I am reasonably confident that neither the writer in Youth's Companion magazine in 1900 ("The desire to excel is not a bad thing but a good thing"), nor Liberal Chancellor of the Exchequer and later Prime Minister William Ewart Gladstone speaking on the hustings in 1865 ("And that was not a bad thing, but a good thing for the constitution"), nor Matthew Arnold, nor the commenter in the Illustrated London News in 1918, were Maoist belle-letrists avant la Maoist belle-lettre. 

In this instance, I believe, the cigar is just a cigar. 

Like Steve, I take no position on the merits. Although, having pronounced on McConnell's language, I cannot resist pointing out that it doesn't hold a candle to the vitriol of the commenters on his op-ed, and that McConnell's op-ed seems to contain far less irony, or whatever it should be called, than Laurence Tribe's op-ed of a week ago. 

Posted by Paul Horwitz on May 14, 2023 at 03:14 PM in Paul Horwitz | Permalink | Comments (0)

Monday, May 08, 2023

Law and Psychology Review Expedited Consideration: Deadline May 10

I apologize for the late posting of this notice, but for scholars who may have articles in draft dealing with the intersection of law and behavioral or psychological studies, please note the availability of direct submission and expedited review at the Law & Psychology Review, for papers submitted by the end of the day on Wednesday, May 10. The notice is below:

LAW & PSYCHOLOGY REVIEW - CALL FOR PAPERS 

MAY 10, 2023 DEADLINE FOR EXPEDITED CONSIDERATION

The Law &Psychology Review at the University of Alabama School of Law is the leading student-edited journal exploring the intersection of behavioral and legal studies. We have a rigorous editorial review and revision process designed to strengthen the style and structure of each article that we select. As a specialized journal, we bring experience and expertise when it comes to editing works with psychological and behavioral aspects.

The Law & Psychology Review is opening a special direct submission window. Submissions (in Word or pdf format)should be emailed to [email protected]. Submissions received by May 10, 2023, at 5:00 pm CT will receive a publication decision by May 14, 2023, at 11:59 pm CT.

All submissions must include a psychological component and be relevant to law and/or policy. We prefer articles with more than 10,000 words (including references) and in Bluebook format.

If you have any questions, please do not hesitate to contact us at the email address above.

 

Posted by Paul Horwitz on May 8, 2023 at 02:52 PM in Paul Horwitz | Permalink | Comments (0)

Property Law Teacher Sought for Spring '24 at U of Alabama

I'm happy to pass along the following notice. I will add two points: 1) Our students are excellent and it is a genuine pleasure to teach them. 2) I am reliably informed that in other parts of these United States, one may experience heavy quantities of snow in the months of January through April. We mostly avoid such unpleasantness in this state. 

* * * 

The University of Alabama School of Law is seeking a visiting faculty member from an ABA-accredited law school for a podium visit in the Spring 2024 semester to teach Property (4 credit hours) in the first-year required curriculum.  There is an option to teach a second course in an elective subject of the visitor’s interest that matches with the Law School’s needs, but it is not required.  Instruction for the Spring 2024 semester will be in-person at the School of Law in Tuscaloosa, Alabama.  This visit will include housing and visiting scholar stipend in addition to covering regular compensation at the scholar’s home institution.  The University embraces diversity in its faculty, students, and staff, and we welcome expressions of interest from and nominations of individuals who would add to the diversity of our academic community. 

Interested individuals should submit a cover letter, C.V., list of at least three references, and recent course evaluations.  Materials may be submitted via email to Associate Dean for Academic Affairs Grace Lee at [email protected].

Individuals who wish to submit nominations may email them to Associate Dean for Academic Affairs Grace Lee at [email protected].

Review of materials and nominations will begin immediately and will continue until the position is filled.

Posted by Paul Horwitz on May 8, 2023 at 02:47 PM in Paul Horwitz | Permalink | Comments (0)

Wednesday, April 19, 2023

What are the Best and Worst Times to Look at History?

"The answer to both questions, I should think, it: When it's relevant and current. It's the best time to do so because it's, um, relevant. And it's the worst time because moments of currency are when most people do the worst job of looking at history and, unless they are otherwise expert in the subject and thinking clearly, are most likely to rely on a canned and imperfect narrative."

The writer is Past Paul Horwitz. I started writing this post early last week, after Adam Cohen wrote an op-ed for the Times arguing that one distressing thing about the then-current news concerning Justice Thomas and his acceptance of generosity from a billionaire friend acquired after joining the Court is "the lack of bipartisan outrage at malfeasance that corrodes the standing of the nation’s highest court." Cohen's op-ed contrasts this with the fate of Abe Fortas, who was embroiled in controversy for initially accepting a payment from Leonard Wolfson, a financier ultimately convicted of securities violations. He argues that once the worst of the revelations about Fortas came out, "Congress respond[ed] firmly and in bipartisan fashion," leading to Fortas's retirement from the Court.

Since then, more people have discussed the Fortas story. They include Steve Vladeck, here, and a Washington Post reprint of its story about Fortas's resignation. (Below, I also reference a contemporary story from the Times. What strikes me the most about both stories is that in an era when space was at a premium, both stories were longer and gave more details than contemporary news stories, and also the utter lack of evidence that the endlessly self-trumpeted move away from "objectivity" has improved the quality of journalism in either paper. If anything the reverse is true, although I'm not claiming a causal relationship.) I draw on Cohen below as my foil. I have relatively little to say directly about the question whether, as Cohen argues, Thomas's behavior was far worse. I also have little if anything to say in his defense, and make a general point that applies to both Fortas and Thomas and is critical of both. My broad point is that the Fortas story as it has been presented in its canned-narrative form is incomplete and misses a good deal, some of which disrupts the point that Cohen, at least, wants to make, and thus shows how drawing on history in the moment generally disappoints or misleads. But the fuller version does offer some interesting potential lessons, some of which might suit Cohen and some of which might not, and that certainly wouldn't suit others, either in the camp that is critical of Thomas or in the camp that wishes to portray all of this as no big deal. Find a relaxing seat; uncanned history takes time. In keeping with my views on blogging and service to readers, I have gone unbearably long, left the takeaways until the end but buried plenty of observations in the middle, and omitted a jump page.   

Let's start with Cohen's op-ed and the state of affairs circa Tuesday of last week, after the first-round story about Thomas and his friend-cum-benefactor. Strikingly, Cohen's account omits the killing of Fortas's nomination to the office of Chief Justice of the United States. At that point in Fortas's tale, the Senate had before it at least one fact that can be analogized to Thomas. Cohen describes it misleadingly as "an earlier controversy over a course he was paid $15,000 to teach at American University while on the court." (Other accounts put the payment amount at $20,000.) This leaves out the nature of that invitation. The source of the payment for that course was Fortas's former partner Paul Porter, who lined up the gig at American--with initial plans for it to run indefinitely--and raised the $30,000 needed to pay for the course from rich friends and former clients of Fortas and the firm. At the time, the payment to Fortas represented a bump-up of 40 percent over his salary as a justice. Fortas was sincere about wanting to teach, and Porter said Fortas was unaware of the identities of the donors. At a minimum, however, it's clear that a major purpose of the course and the fundraising was to address Fortas's restlessness and unhappiness on the Court and his displeasure with the large drop in his income. 

The American University payment was only one part of the ammo used against Fortas in the chief justice fight. Another was what we could call culture-war nonsense, which is how the historical record treats it. Or, as we would call it if we were describing, say, the Gorsuch nomination, we could call it tough questioning about outré substantive decisions. A third was something else that may be relevant for analogy-drawing purposes: the well-known fact of Fortas's concurrent service as justice and unpaid advisor to LBJ. This Cohen gently describes as Fortas's "unfortunate habit of continuing to offer advice to President Lyndon Johnson, whom he had long advised, even after joining the court." There was no way to deny the relationship. But it could be finessed; or, as Laura Kalman puts it in her Fortas biography, when quizzed about it in committee, he "simply lied."

In the event, it was not enough. Fortas's nomination failed to get past a cloture vote, and with the writing on the wall Fortas asked Johnson to withdraw the nomination. But we certainly had not gotten to the "firm and bipartisan" part of Cohen's story. Some Democratic Senators defended Fortas throughout the process. The Judiciary Committee's 11-6 vote to send the nomination to the floor included three Republicans for and three Democrats against. The cloture vote was 45-43, well short of the two thirds needed. The count on that vote included ten Republicans voting for cloture, and 35 Democrats voting for it as well, along with 19 Democrats voting against along with 24 Republicans. 

At this point, we could still agree with Cohen's efforts to paint the opposition to Fortas as bipartisan. But, as with the ultimate controversy that drove him from the Court, that would be misleading, because it treats late-60s Democrats and late-60s Republicans as if each were cohesive, ideologically and politically united parties. Of course, they weren't. What killed the cloture vote, and thus Fortas's nomination to be chief, was an alliance between Republicans, less those primarily moderate or liberal Republicans who split off, and the conservative southern Democrats who, with their voters, would soon enough would leave the party.      

Cohen's op-ed, as I've suggested, omits nearly all of this and focuses instead on the controversy that led Fortas to step down from the Court. That controversy involved a payment from Louis Wolfson, a sometime client of Fortas, a man seen by some as shady and whom Fortas liked, according to Kalman. Cohen eases into his account of this issue, initially describing it in the op-ed as Fortas having accepted payment of $20,000 "to consult for a foundation working on civil rights and religious freedom." But he does note fairly quickly that the plan was for annual payments to Fortas for the rest of his life. 

Cohen does not say, however, that the payments were to go to Fortas's wife for the rest of her life if he predeceased her. Nor does he note that Wolfson's payment had as much and as little to do with sincere support for research into civil rights and religious freedom as the payment to teach at American University. In both cases, the history makes clear, a primary purpose for both payments was to supplement Fortas's income, which was a drop from what he had been making in private practice. Wolfson also wanted, at a minimum, to be close to the great and be able to brag about it, although he also attempted to trade on Fortas's name in defending himself against government investigation. The income-supplementing point would have been clearer had Cohen noted that the source of what he calls, using the passive tense, the payment "to teach at American University" was his former partner Paul Porter, who lined up the gig at American--the initial plan was for the course to run indefinitely--and raised funds from rich friends and former clients of Fortas. Cohen notes that Fortas quite the Wolfson-funded foundation he belonged to, returned the first payment, and didn't take any more. He might have pointed out that Fortas didn't disentangle himself from Wolfson until after he'd been pressed to do so by his law clerk, Daniel Levitt, and only after telling Levitt to mind his own business. (Meanwhile, Fortas was busily trying to line up other arrangements, with bodies like the Twentieth Century Fund and the Russell Sage Foundation. For reasons that always escape me, but that seem to involve a blind spot of political sympathy and an establishment-oriented sense of what is and is not au fait, we seem to have a blind spot when it comes to bien-pensant foundations, also funded by plutocrats, that bestow garlands, perks, and comforts on justices and buy access and proximity to them. Judges, academics, and law schools that speak truth to power would be lost without billionaires and multi-millionaires and their tax-reduction vehicles.) 

We now get to the nut of Cohen's argument. He notes that the Wolfson stories came out in part because of, and were pushed by, efforts by the new Nixon administration. He then notes that Democrats began joining the Republicans in calling for Fortas's resignation, and that these included moderate and liberal Democrats. This is true and perfectly commendable. But it's something of a romantic depiction. For one thing, he might have noted that the Judiciary Committee had become aware of a connection between Wolfson and Fortas in September 1968, and both the committee and Attorney General Ramsey Clark declined to pursue the issue. He might have acknowledged that even after the stories came out, some Democrats remained in Fortas's corner, privately or publicly, and others simply remained silent. He might have noted that Justice William O. Douglas, who had his own corrupt relationships and thus had some stake in the matter, urged Fortas to hold fast--and that, when the Nixon Administration pushed to impeach Douglas, House Democrats killed the effort.

Finally, Cohen might have shed some light on our propensity to overlook and forgive the faults of our friends and allies, at least until enough time has passed to safely allow a different historical judgment to form, by observing that it took years for many to think of Fortas primarily as an ethical failure rather than as a great Warren Court justice and liberal brought low by Nixonian tactics. As Lucas Powe notes in his history of the Warren Court and American politics, two years after Life Magazine had published its revelations about Fortas, it ran the results of a survey of constitutional law scholars rating Supreme Court justices prior to the ones appointed by Nixon. Powe writes: "In anticipation of the ethical blindness that would descend upon the profession generally, Fortas was rated--along with Brennan, Douglas, and Harlan--as near great."

Similarly, a look at the law review literature between Fortas's resignation and the reassessment occasioned by the passage of time, by Bruce Murphy's book about Frankfurter and Brandeis, and later by the publication of Kalman's biography shows very little scholarly interest in Fortas or his ethical lapses. He was mostly passed over in silence, as one does with embarrassments. One is never surprised when law review eulogies soft-soap their subjects, only when they don't. Nevertheless, one might note that on Fortas's death, Justice William Brennan wrote in the Yale Law Journal that Fortas's "work, career and character...exemplified the judicial role at its best," and that the other tribute it published, which stuck determinedly to Fortas's civil liberties work titled "Abe Fortas: A Man of Courage," stuck to Fortas's civil liberties work in the late 40s and 50s and was titled "Abe Fortas: A Man of Courage." That tribute may have followed the strategy of Anthony Lewis, the definitional center of establishment legal liberal opinion, whose Times column eulogizing Fortas began, "When Abe Fortas died on April 5, people inevitably thought about his service on the Supreme Court and his forced resignation. But there is reason to reflect on his earlier years as a lawyer." I'm not privy to faculty-lounge gossip from the 70s and 80s. But I suspect that in those corners, the assessment of Fortas during that period would not have seen Fortas as a villain or rogue, but as a disappointment and a fool, who (along with LBJ) stupidly gave the Nixon administration the tools to launch the Burger Court "counter-revolution."

This history is, to my mind, much more interesting than the canned narrative Cohen provides. (Of course he had much less space to work with, a point with which I have some sympathy but not much; not writing an op-ed is always an option. But it's also beside the point. The convenience of a canned narrative lies not in the fact that it's short, but in the fact that it's canned: it's conventional, neat, digestible, usable, and comforting.) It's also more instructive. I take no position on whether, at the time Cohen published the op-ed, he was right in saying that Thomas's conduct--as of the state of knowledge about it at that time--was "far more egregious in scale than Fortas's," although I do think both that Cohen can make a reasonable argument on that point and that his assertions on the point, at the time and with the information he had then, are also both contestable and overconfident. But I am happy to take the assertion that Thomas's conduct (again, as of our state of knowledge after the first ProPublica story) is as bad as or worse than Fortas's. I am happy, too, to say Cohen makes a reasonable point in saying there was more bipartisan condemnation of Fortas and that this sort of bipartisanship is devoutly to be wished for. 

But it seems to me the fuller history suggests some different points than Cohen makes. The first is a simple point of clarification. The version of the story in which Fortas's resignation as showing admirable bipartisanship and today's treatment of Thomas as showing wicked partisan complicity is overstated and (perhaps inevitably) presentist. As is almost always the case, a close-up view of the past muddies the waters and makes confident assertions of this sort difficult. It shows that bipartisanship was closer to the exception than the rule, and that much of the bipartisanship, notwithstanding Cohen's examples, had to do with the makeups of both parties being very different. (I don't think this is the entire explanation. Cohen's examples of moderate-to-liberal senators criticizing Fortas--but, note, later in the process, not necessarily during the nomination to the chief justiceship--are good ones, albeit not necessarily representative. I think it is quite possible that some norms around both the senatorial role and the expectations that office holders have for themselves and others have changed, in some ways positively and in many ways negatively. Query whether many of the desires that are strongly expressed about what one's party should do, how its representatives should behave, and who should be elected would ease or exacerbate these very problems.)

A look at how that past has been received over time also complicates matters. Cohen is free to say that the meaning of the Fortas affair is clear. But he might more properly say, "The 2023 version of the meaning of the Fortas affair is clear." A 1973 version, 0r a 1983 version, might be different. (Indeed, as I suggest below, it's not even clear that the 2023 version for Cohen is the same as Cohen's version of the lesson of the Fortas affair in 2020.) That earlier version might be the "clear" lesson that Nixon was a bastard, full stop; or that, absent stronger resistance, unscrupulous politicians will leverage scandal to force judges off the court so they can reshape it to their own ends, even if others have engaged in that behavior or the so-called bad actor returned the money or the rules or their application are unclear (which is more or less the 2020 Cohen "lesson"; or that judges should be above reproach not because we care what they did, for the most part, but so that they are not vulnerable to the underhanded tactics of their enemies. Certainly the historical judgment of Gerald Ford is not that he behaved admirably by seeking to impeach William Douglas, even if Douglas acted wrongly. And although Cohen praises some Democratic senators for criticizing Fortas, I can't think of many examples of praise for Mitchell or Nixon or the Life Magazine reporter for revealing Fortas's conduct. At the least, the fact that the received wisdom on the Fortas affair was different at different times should make us less confident of the "lessons" we draw from it today and more aware of the distortions that enter in when we render history "usable."      

A point related to this is that both structure and actual preference today favor a political alignment that encourages the kind of situation that Cohen deplores. Plenty of people and interest groups deplore ideological diversity in their own party and view so-called party moderates as false friends and bad influences who should be drummed out of the party. (They tend to approve of moderates on the other side, at least once they've been elected, while favoring and sometimes working toward the election of the more extreme members of the other party at the primary stage.) Plenty of people in both parties think presidents who nominate moderates for judgeships are failing in their duty and ceding victory to their opponents. It's possible that some of the moderate or liberal Democrats who publicly criticized Fortas would have done so no matter what, and that this represents a genuine falling-off in our politics--albeit a falling-off that many perversely desire. But it's also possible that without the Southern Democrats, the ranks would have closed around Fortas much more fully and successfully. The road to a saner response to misconduct by judges and other officials runs directly through ideological and party impurity.  Insofar as they also serve as pressures for party purity and against heterodoxy, the interest groups that play a huge role in the political ecosystem may simultaneously help to uncover and publicize ethical lapses by their adversaries and help maintain a system in which those efforts become one-sided and partisan and fail. (There are exceptions. Some groups focus on ethics from a bipartisan perspective. But of course the picture is muddier than that. CREW calls itself nonpartisan but that is a transparent  stretch. Public Citizen is supposed to be but doesn't always act like it. It's hard for a group to keep funding, support, and staff for the mere mission of holding everyone to high ethical standards.)   

Another point is that, then and now, most people who support a justice's politics will remain silent even if they privately question that justice's conduct. Today they would just need to call out numbers to justify that silence, where the numbers represent ritualized responses in the game of culture-war politics: "23," for instance, might mean, "[X] is happening in the world right now, and this is what you decide to complain about? I'm too busy focusing on [X] to talk about this," and "42" might be, "This is coming from a reporter with a clear bias, and although I've been arguing for openly political journalism, I decline to trust that journalism when it comes from the other side, so I'll wait for more before commenting." But silence has always been an option and remains so. Where they are silent, moreover, that silence might not suggest approval; on the other hand, it may well be that they quietly consider the bad actor a fool who handed over ammunition to his or her unscrupulous enemies rather than a villain. 

A further point is that the Fortas affair and its "lessons" should make us more hesitant in assigning a role to the "villains" and "heroes" in such a story, or at least moderate our interest in the relevance of that question. ProPublica is a gift to journalism, especially given how little actual journalism there is. (Even leaving aside the death of local papers, on any given day I may find a good investigative piece in the Times but will almost certainly find a piece about Succession--at least five, actually, in the last seven days--or something equally trivial and cheap to produce. (It is either ironic or indicative or both that Nikole Hannah-Jones, who once reported on a story in Tuscaloosa involving my wife for ProPublica, effectively ceased doing journalism when she joined...the New York Times.) But of course its tendencies lean liberal or left. Does it matter? If ProPublica revealed valuable and disappointing or scandalous information about Justice Thomas through actual reporting, are its politics relevant? If someone like Sheldon Whitehouse, who hasn't a nonpartisan bone in his body, uses this occasion to push for information or reform, does it matter that his main interest may be scoring points or giving a Democratic president a Supreme Court seat to fill? By extension, if--as Cohen takes to be the case--Mitchell and Nixon did indeed reveal unethical and disqualifying conduct by Fortas (a point that was of course contested at the time and later), do we care that they were acting for their own ends? Do we care that Life Magazine leaned right? We should care about the accuracy of the report, and we may care about the tactics involved in obtaining or disseminating the information, although in the latter case we care for process reasons and not because those criticisms alter the underlying facts. But should we care beyond that? It is clear that some of Thomas's defenders do, even though those questions don't alter the fact of whether Thomas acted improperly or foolishly or not.

It would seem that as of last week, Cohen does not think we should care beyond that. He praises Democratic senators who urged Fortas to resign, saying they "were more concerned with the court and the country than with their ideology or their party," and although he notes that Nixon was pushing the effort to get rid of Fortas, "including with some improper leaks," he soft-soaps the history on that point and doesn't suggest that Fortas should have stayed on that account. But in his 2020 book Supreme Inequality, Cohen gives an almost entirely different picture. There, Fortas suffered a "forced resignation" (as opposed to Earl Warren's strategic resignation, timed to allow Johnson to fill his seat, which Cohen praises as Warren's "plan for saving the Court") at the hands of the underhanded Nixon administration, whose depredations he describes in loving detail; there is no praise offered for Democratic senators who abandoned Fortas, no paeans to bipartisanship, lots of leaning on the "no technical rules broken" and "other people did it" lines of argument, and plenty of criticism of Warren for not sticking by Fortas. The Cohen of 2023 confidently describes the Fortas resignation as "a blueprint for how lawmakers could respond today." The Cohen of 2020 calls the whole episode "disreputable"--for Fortas's adversaries, to be clear, not Fortas, who gets off with a verdict of "problematic." The judgments are so different that it would be natural to assume they were written by two different people.

It seems to me that if one thinks Fortas did nothing wrong, then one can argue he could or should have stayed on the Court regardless of who was pushing for his resignation and how bipartisan the effort was. If he did do wrong, then he could or should have stepped down regardless of who was scheming for his resignation and regardless of whether his critics were bipartisan or not. Similarly, if Thomas did not act improperly (and even aside from questions of fact, the Two Cohens, like the rest of us, may have an inconsistent set of metrics for whether technical compliance, according to a technical, lawyerly interpretation, is enough, or whether impropriety sufficient to suggest resignation is a matter of the spirit or the letter), he can or should remain, without any particular regard for whether his defenders are self-interested partisans and with equal disregard for the identity of his critics. If he acted improperly, he can or should resign even if the controversy is also or even primarily an effort to find a weak link and pull on it in an effort to change the composition of the Court, and regardless of whether he has or lacks support from Republican lawmakers. The judgment of history--which, as we've seen, won't be one judgment but a shifting series of judgments, even for the same person--will be what it is. The judgment of the individual judge about what integrity and propriety demand is its own question, which can't be shaped by the composition of either one's critics or one's defenders.

A final lesson of the Fortas affair and its comparison to the Thomas affair is, I think, true and valuable and somewhat neglected in the current discussion, and has become ever more true as more stories about Thomas's relationship with Crow have come out. Much of the discussion has centered on Corruption with a capital "C," thus making it important whether Crow was a real "friend" or someone deliberately cultivating a judge who may as a result rule in favor of the causes that person supports. But I don't think Wolfson's unsavory nature was as important, as a takeaway from the Fortas affair, as the fact that he liked to be well-connected, to know people, largely for its own sake. People love to have important friends. In that group, which includes most of humanity and almost all of humanity in the professional-managerial-creative class, the people who most love being near the powerful or famous move to LA or DC and make it a lifelong pursuit. The great and wealthy and famous, who are magnets for these people, have two options: they can accept it as their due, or resist it. The fact that some of these people might become genuine friends changes nothing. It certainly does not change what matters most: the small-c corruption of it all. (I might add that although they became friends long before one became a Supreme Court reporter for NPR and the other a Supreme Court justice, even Nina Totenberg admits that remaining an intimate of Ruth Bader Ginsburg led to small-c corruption for both of them.) I have no reason to disbelieve Thomas when he says that Crow is a genuine friend, but also not much reason to care. Crow's generosity to Thomas might be both sincere and financially trivial to him, in the same way that the Aspen Institute or Salzburg Global Seminar needn't count their pennies when cultivating Justices as summer speakers and teachers. But it's just...gross, and unnecessary, and, whatever the justices themselves might think of this or that friendship or invitation and their reaction to it, corrupting. 

One wants justices to live something of the life of human beings, with the social contact that is necessary for a human being to remain sane. But for the period of their tenure, I prescribe a fairly insulated, artificially cloistered life, with the deliberate shedding of a number of old and genuine friends and acquaintances and extreme caution in making new ones. No dinners with Nina, no vacations with Harlan, no fancy holiday parties, no star appearances at ACS or FedSoc or the AALS, no bloody memoirs and no book tours, and no "A-lister" rounds of the "embassy party scene." I give full credit to Thomas for a different way in which he has remained social and fought isolation: by touring the country in his motor home. I'm all in favor of Little League and Boy Scouts and trips to the Safeway. But between a sane and social life in which new friendships, naturally enough for rich and powerful people, are going to involve other rich and powerful people, and a depressingly lonely and isolated life, I counsel the latter. That it might make them miserable is of no consequence to me. That's especially true because its cure is always at hand and involves what they all ought to be doing anyway: serve for ten or fifteen years and then move on.  

 

 

Posted by Paul Horwitz on April 19, 2023 at 01:12 PM in Paul Horwitz | Permalink | Comments (0)

Tuesday, April 04, 2023

Steven R. Smith on COVID and Bar Admissions

The state of the discussion cycle being what it is, it may be hard to remember just how much talk and advocacy there was in spaces like this and elsewhere about bar admissions around the first year and a half of the pandemic. Quite understandable, of course. But the problem with moments of advocacy around urgent situations is that it's like love, futurism, and news commentary: it means never having to say you're sorry. So I'm happy to spotlight this paper by Steven R. Smith, titled COVID and Bar Admissions. Its goal is to take a retrospective look at activities and advocacy around bar admissions in the summer of 2020 and 2021, to look at the various options that states went with (with a particular focus on the diploma privilege), and to note "the 'disconnect' between some law schools and bar admission authorities" during that period.

The paper is less normative than evaluative. But it does insist on one general descriptive and normative baseline: that "[t]he core purpose of licensing is public protection" [I would have been happier if he had added the word "ostensible" somewhere in there], and that the relevant question in considering law school and state bar responses to the pandemic, and licensing reforms going forward, is the public interest. I suggested at the time that too often, discussions focused instead, and often solely, on law students, whose interests are important but must take second place to the needs and interests of clients and the public. (Arguments were made at the time that rushing graduates into practice would serve the public interest for access-to-justice reasons, because those students would somehow get funneled into serving people in pandemic-related need or free up other lawyers to serve those people. I think that was more makeweight advocacy on behalf of students than serious or plausible argument. Smith notes that there are limited data on this point but suggests that the argument does not appear to have been borne out in fact.) The interest of clients and the public, not law students, is indeed the correct measure of any short-term accommodations or longer-term reforms, and it is useful to have an evaluative paper that proceeds with that standard in mind. Smith most certainly does not reject reforms to the admissions process in this article. But he does argue that any such reforms must be about the ultimate and not the intermediate beneficiaries of bar admission: the non-lawyer, non-law-student, non-law-school public. 

I leave it to my betters to evaluate Smith's paper and its strengths and weaknesses more fully. I cannot say how it will fare upon a more critical look. I assume there are other data out there. But I wanted to call attention to this paper because it deserves that more careful look. There was so much commentary at the time, but there has been virtually no acknowledgment or mention of Smith's article so far. (It is easy to forget that there was a whole Facebook page, with hundreds of law professor members, devoted to law school pedagogy during the pandemic. It's still going--and COVID gets mentioned in passing maybe once every dozen posts or so, if that. It would be nice if the die-hards on that page mentioned a paper like this, which actually addresses the topic.) Mutual flattery, sometimes misdescribed as "support," is the order of the day on social media when law professors promote each others' papers. Occasionally the word "brave" will be used, generally to describe papers displaying no particular signs of bravery. Inasmuch as Smith's paper calmly examines an issue on which there was much strong feeling, and does so in a way that "centers" (to use a currently popular abuse of the language) the interests of people other than law students, it deserves the label more than much scholarship I see in our discipline.     

Posted by Paul Horwitz on April 4, 2023 at 10:46 AM in Paul Horwitz | Permalink | Comments (0)

Sunday, March 26, 2023

"Inflection Point, noun"

Interestingly, in the revised edition of his Devil's Dictionary, Ambrose Bierce defined "inflection point" as: "A thing whose two common traits are that it is both widely observed and nonexistent. Said to relate etymologically to a frolicsome mythical animal that appeared often on the editorial page but never in nature." 

Posted by Paul Horwitz on March 26, 2023 at 11:27 PM in Paul Horwitz | Permalink | Comments (0)

Friday, March 17, 2023

Just the Last Paragraph

I also think Howard's "asymmetrical censorship" post is wrong--I think! I am sure I disagree on some issues voiced there and in his post before that. But I wanted to focus solely on my disagreement with his last paragraph. Unfortunately, the more I wrote, the less sure I was of the meaning of that paragraph. I think the problem has to do with a sudden switch from one reasonably apt point (which is not to say I agree with it) to a different and inapt point. Here's that paragraph: 

This dynamic appears in the fallout from the events at Judge Duncan's Stanford speech. Judge Ho (Fifth Circuit) and Judge Branch (Eleventh Circuit)--who previously threatened to stop hiring Yale grads as law clerks--argue in the National Review that disruptive students should suffer consequences, including denying bar admission on character-and-fitness grounds. So lefty Stanford students do not want Judge Duncan to speak and wield practical actions (some of which are arguably their own form of free speech) to stop him. Righty judges respond by using the full force of the state to punish them for their speech. And everyone will treat them as equivalents.

The National Review piece  urges Stanford and other law schools to discipline disruptive behavior by students, up to and including reports to the bar. (Based on other recent extrajudicial writings by Judge Ho on this subject, the editorial may be "controversial" and might even be right, but I doubt it was interesting or deep.) For public law schools, of course, imposing discipline is indeed invoking the force of the state. For private law schools, imposing discipline is only a second-order invocation of state force, which does not enter into play unless and until a student refuses to accept the discipline. At that point, however, the recalcitrant offender will be subject to ejection, ultimately backed by state force. And because law is a licensed profession that draws on delegated state power, any character and fitness examination is also backed by the force of the state. Law schools that report students to the bar for cheating, for instance, or notify the bar that a student has flunked out, has no business serving clients, and thus should not even be considered for licensure, are also engaging in Coverian violence--justified Coverian violence, in that instance. (The judges also kind of urge Stanford to notify potential employers of disruptive students. I say "kind of" because they offer this suggestion only if universities are unwilling to enforce the speech policy the judges think they should have or already have in place. As written, it's a stupid and ill-thought-out suggestion. But it does not involve state force.)  

It is not clear to me from what I have read of the student protests exactly what they want, and it would be a mistake in any event to attribute a single motive to a potentially disparate group. But I take it that some of them want Stanford to take the position that certain would-be speakers should not be allowed to speak at their school. I imagine that some of those holding such a view think Stanford's policy should actually be enforced, so that a speaker barred by such a policy will be, you know, barred. In the limit case--say, a person who is refused access as a visiting speaker but shows up anyway and commandeers a room--I imagine they will desire that state force be applied to prevent the trespass. (I hope that's their desire, since the alternative would be private violence.) It is possible that some of the students do not want such a policy, and believe only that Stanford should have a policy that there are no rules governing any form of spoken response to visiting speakers, or that its policy should be that there are no rules for counterspeech for some speakers, whether designated by the university or chosen in the moment. I could imagine an unattractive but reasonably consistent anarchistic version of this view, in which the rule on campus is that there are no rules. Every other version, every version that involves any selectivity at all--for instance, the version that distinguishes sufficiently-bad-opinion-holding visiting speaker Duncan from unobjectionable-opinion-holding visiting speaker Whitebread, or the version that distinguishes Visiting Speaker Lopez from Regularly Scheduled Class Lecturer Professor Lopez-Prime, such that students may shout imprecations at Lopez during his or her talk but will face discipline for doing the same thing to Lopez-Prime while he or she is teaching a class--at some point relies on the knowledge of the availability, at the end of the road, of the use of state force. "This is our jurisdiction!" ain't just a slogan. If we're going to "unmask" state violence, or whatever the academic cliche of the day is, we might as well do so thoroughly.    

So: These two judges urge universities to have one policy enforced by schools: discipline students who are disruptive in ways that, on this account, prevent speakers from speaking their piece at an appointed time and place. And they think law students who are sufficiently disruptive in this fashion should be reported to the bar, just as other students who are disciplined for misconduct are potentially reported to the bar. And the students, or some of them, appear to want schools, or at least their school, to have a different policy, one with uncertain bounds but that ultimately consists of a policy about what is or is not allowed by way of response to speech they object to in a law school. Neither are thinking of the sheriff as such, but both ultimately rely on state enforcement of whatever policy is in place. Are they wildly disequivalent or asymmetrical? No. 

This is what confuses me, because Howard makes a different comparison in the paragraphs leading up to this one. He compares private or semi-private efforts to prevent people from speaking or to penalize them from speaking, which can range from the uncontroversially acceptable to the questionable but relatively trivial to the serious and wildly disproportionate, to organized legislative efforts, popular of late at least as public political tactics, and which sometimes make their way into generally applicable law, to regulate speech. One may reasonably think both are serious. But one may certainly think with some good reason that speech-suppressive legislation is more serious and different in kind from private enforcement of would-be speech norms, including those that speech to suppress speech, even if one thinks some or all of these forms of private enforcement are also bad and serious.

If that is the asymmetry he is talking about, well and good. One can argue over the particulars, but I am not disturbed as such by the view that more formal and public efforts to control disfavored speech are more serious than more informal and private efforts to control disfavored speech. (That's fine with me in part because I'm an old-fashioned civil libertarian, the sort that used to be a card-carrying member of the former version of the ACLU, with a healthy distrust of government power, who believes there is some value to the public-private distinction. I'm not sure that's the current view of the intelligentsia, both generally and within the legal academy. For those who believe that the distinction between public and private power, including in the area of speech, is vastly overstated or false or outdated, which I don't think includes Howard, I would think it should be much harder to make an argument for "asymmetry." If anything, people with those views should be drawn to the "symmetry" side of the argument.)

But the examples in his last paragraph, which he seems to present as continuous with or the culmination of his early paragraphs, strike me as entirely inapt on this point. What the last paragraph describes is two sets of stakeholders both urging law schools themselves to adopt and/or enforce particular speech policies. Neither set is urging a law, or that a policy be imposed on the law schools by someone or something else. Any serious state action in either case is only an indirect consequence of the law schools setting and enforcing their own policies about speech: it comes about only if students fail to comply with the speech policy urged by each. It is reasonable to say that it's a mistake to treat as equivalent a law requiring a particular set of speech policies, imposed on universities by legislatures, and a protest, however inconsistent with academic values it may be, attempting to deny a platform to disfavored speakers. But this is not the example he uses in his last paragraph, since this is not what Judges Ho and Branch demand in their editorial, which--like the students--is demanding that Stanford or other law schools, of their own volition, take a particular approach to campus speech. What he does discuss, if dissected a little more thoroughly, is equivalent, or at least far more equivalent than what he talks about elsewhere in his post. He simply takes a sudden wrong turn at the end.  

Incidentally, the solution to such a dilemma, when presented by the stakeholders as a policy demand and not imposed by the state, is obvious and easy. Law schools considering policies that affect the exchange of ideas on campus can listen to the views of stakeholders such as students, alumni, donors, practicing lawyers, and so on. Then, acting through faculty governance and not just administrative fiat, they should select the policy that is most consistent with their academic status, their academic mission and duty, the demands of their discipline, and the trans-disciplinary norms and duties that constitute the academic profession and environment as a whole. They should make that choice and that policy clear, and they should actually insist on enforcing it. Listening to other stakeholders may be informative. But once the time to choose actually arrives, they must choose and enforce the policy most consistent with the duties and values of the academy, without regard to what any other stakeholders, including students and alumni, think or want. A law school's speech policy is a matter of faculty governance and faculty governance is not shared with students, sympathetic or otherwise, or with Judges Ho and Branch. They're all free to argue against and about it. But we are not free to delegate that decision to them, and it must ultimately be based on what academic duty demands. A law school (or a university) that does otherwise has simply failed in its duty. So there's really no hard problem on that part of the issue.  

Posted by Paul Horwitz on March 17, 2023 at 04:13 PM in Paul Horwitz | Permalink | Comments (0)

Tuesday, March 14, 2023

A Useful Opportunity for Golden-Rule Law Review Reform

There are two likely standard responses to a story in which law students demand pay for working on law review. The first is more or less reflexive support. ("At a time when lots of law schools are talking about diversity in legal academia, this is a concrete step that could go pretty far in making a material difference for those who don’t come from a privileged background.") The second is more or less reflexive ridicule. ("But rather than quit the law review, they want money because these are the days that law schools, law deans, acquiesce to the demands of students because they either can’t or won’t say no.") Let's bypass both of those and go for a somewhat sunny-sided Door Number Three.

It should be noted first that the NYU students who have launched the petition reported on above are actually demanding that "all contributors to the journals be able to choose whether to receive compensation in hourly wages or credit hours." One might reject the full demand but find it reasonable that students receive credit hours for law review work. I do. My law school offers one credit for law review work and two credits for work by a few top editors. Other law schools offer variations on this credit-granting approach. When last I wrote here about law reviews, I wrote in the assumption that this was common but discovered in correspondence that it might not be as prevalent as I had assumed. The person who wrote me indicated his school was looking to add credit hours for law review work, so perhaps it is becoming more common--or perhaps the demand is becoming more common, or both. In any event, it hardly seems crazy to me. 

But for schools who don't offer credits, or who contemplate seriously the possibility of offering pay, perhaps we should think of this as an opportunity. Seeking official compensation of either sort is also a recognition of official authority. And it's an excellent opportunity for law schools to provide the kinds of conditions that a) might naturally accompany both authority and compensation and b) make sense regardless. For instance:

1: It seems appropriate, if law students are going to be offered credits or financial compensation for this work, that all students be eligible for it. This would be an excellent opportunity to insist that if such a plan is to move forward, any student who wishes to serve on law review--on any law review, including the flagship journal--be allowed to do so. This makes sense because it makes little or no sense to restrict admission to law review in the first place. What Above the Law (and just about everyone else) refers to as "grunt work" does not require an unusual amount of talent. Top editorship might, and it certainly requires an unusual level of commitment of time and effort. But I am unaware of any empirical work showing that top first-year grades correlate with excellent work as an editor. In any event, the skills required for that editorial work are not involved in the general work that occurs at the wide end of the funnel.

The only cost to the journals or the students of general admission would be the possible, and perhaps over time inevitable, loss in prestige. But the prestige that attaches to working on a law review is both silly and artifactual. It is prestigious not because of the thing in itself, but because admission to law review is restricted, and admission thus serves potential employers as a proxy for academic achievement. That proxy is unnecessary, since employers can look directly at grades. In countries with sensible law review practices, working on a student-run law review, where they exist alongside faculty-run journals, carries no unusual level of prestige--certainly not higher than clinical work, mooting, or other extracurricular activities--because it is not a proxy for grades. The people who work on either sort of journal do so because they want to work on a law journal.  

In the absence of prestige, fewer students might opt to serve on a law journal at all, instead of doing some other activity. But that's a feature, not a bug. Not all students are interested in or have a vocation for scholarly editing (or editing of any kind); more of them might do something else for which they're more suited or which would provide better and more relevant professional training; some of those alternative activities might be more socially beneficial, such that both they and everyone else would be better off if more students did those activities instead; and a reduction in staff might lead to a winnowing of functions and a focus on core editing rather than citation busywork. Finally, if the concern is with diversity, allowing anyone who wishes to do so to work on law review--albeit with a relative loss in prestige--would achieve that aim far more fully than tinkering around the edges with law review admissions, in ways that seem almost calculated to change the composition of the editorial staff on the margins while maintaining a cashable system of prestige and elitism.

2: It would also be appropriate for law schools to insist, in exchange for the pay and/or credit, that part of the redesign involve faculty editorship of law reviews and a properly instituted system of genuine peer review. Under this modest reform, law students working on a law journal would become what they are elsewhere in the world and are supposed to be: editorial assistants, serving the professional faculty who exercise the ethically indefeasible disciplinary function of running and editing their field's academic journals. Such a reform would marry nicely with the demand for financial compensation. I was not paid for my work as an editor of the student-run law journal at the University of Toronto's law school, but I was most certainly paid for my work as an editorial assistant on the faculty-edited Canadian Business Law Journal, just as I was paid when I worked as a research assistant to an individual professor. 

3: I think number two should be non-negotiable. But at a minimum, if law schools are to hand out credit, with grades (likely pass/fail, but grades nonetheless) and/or pay for work on a school's law journal, I think it is entirely appropriate that those schools exercise their authority to insist that those journals meet high professional standards. After all, law schools already insist that credit come only for meaningful achievement in academically sound law school courses. And when law schools outsource that teaching function, with things like externships, the schools and the ABA insist that those activities be scrutinized to make sure they are meeting high standards.

Among other things, this would entail that those journals not pursue idiosyncratic or political editorial projects or policies that the faculty consider to be inconsistent with the general professional standards and duties of an academic journal; that they welcome excellent articles (and only excellent articles) on all subjects within the discipline and representing all viewpoints; that symposium issues represent a full range of scholarly views on the subject; that they reject funding from special interests of any kind for symposia or other projects; that they institute at least some form of peer review, including review by academics in other disciplines when an article draws on that other discipline; that their articles acquisitions be subject to some level of transparency and faculty approval or ratification; that any substantive edits insisted on for articles meet scholarly standards and serve only scholarly purposes, that mere gamesmanship in articles acquisition be eliminated; and so on.

As it turns out, I think law schools should insist on all of this anyway. I'm currently writing a jot on Tarunabh Khaitan's fine article on scholactivism in constitutional studies. In working through the issue, Khaitan posits an author who, because she is seeking to influence policy on a short-fuse issue, departs from what he considers basic scholarly standards by, inter alia, submitting an article on the topic "to a non-peer-reviewed student-run law review known for its quick publishing decisions." It is a mark either of Khaitan's parochialism or of our own insanity that his example of a departure from what he considers a baseline marker of academic soundness is, in this country, just standard practice. Law schools should insist on and impose all of these things because they assert that they are an academic enterprise and that their faculty are scholars--and they should act like it. The professional duty to do so is, again, indefeasible. It is revolting to maintain the current system, laughable in the eyes of any other discipline, for no better reason than that that's how they did things when Henry IV, or the faculty, or some donor/alumnus, were law students. Regardless, if law schools are going to award credit or offer financial compensation, this is a particularly good occasion to insist on these changes. (I note that schools that already allow credit for law review don't necessarily insist on any of these things. They should.) None of this, incidentally, entails a belief that peer review is perfect; only that it is the professional norm for academic disciplines (including law, anywhere else in the world) and that it makes far more sense than what we have at present.   

I don't see anything in any of my suggestions which is inconsistent with the student demands for pay or credit for working on a law journal. Indeed, insisting that any willing student be eligible to serve on the main law review is not only consistent with the students' demands but more in the spirit of their demands than the demand itself. I see only three counter-arguments. The first is that it would involve more work by the faculty, but this is work we're supposed to be doing in the first place and that harder-working faculty in lower-paid disciplines do already. The second is that it would involve a loss in prestige and independence for these journals. But neither of those things is justifiable from a disciplinary standpoint, the prestige is a pure artifact that is not worth preserving in itself, and, to put things in modern lingo, making it clear that there is a potential tradeoff between compensation and prestige would merely unmask the power and status relations that are already implicated by the United States' unique and bizarre law review system as it currently exists, with or without pay or credit. The third is that it would involve the assertion of authority by law schools over law students, insofar as the schools would be insisting that credit or compensation be accompanied by the kinds of reforms that would make our disciplinary journals look like those of every other academic discipline. But that authority is already there. It's present every time a law school does something like give or deny credit for coursework. And it's implicit in the students' own demands. Im short, instead of greeting this story with reflexive support or reflexive ridicule, we should see it as an opportunity to do the kinds of things we ought to be doing in the first place. 

Posted by Paul Horwitz on March 14, 2023 at 12:48 PM in Paul Horwitz | Permalink | Comments (0)

Wednesday, February 22, 2023

Is Editorial Content "Workplace Conditions?"

I am not a labor and employment law expert. But as someone who writes frequently about journalism and press law issues, I am interested in a dispute that arose last week between the New York Times and a group of its contributors, and the intervention of the paper's News Guild chapter into that dispute. I have some views, but welcome input.  

Followers of culture-war issues will be aware that last week, a group of Times staffers and (sometimes nominal) contributors issued a public letter expressing "serious concerns about editorial bias in the newspaper’s reporting on transgender, non⁠-⁠binary, and gender nonconforming people." The letter focused primarily on two news stories to which it objected, and in passing on one other news story and one opinion column. It made no specific recommendations, other, perhaps, than suggesting that these stories departed from editorial guidelines in their treatment of sources. The Times responded with an internal statement that, inter alia, asserted that staffers "participating in such a campaign is against the letter and spirit of our ethics policy," which "prohibits our journalists from aligning themselves with advocacy groups and joining protest actions on matters of public policy" and from "attacking one another's journalism publicly or signaling their support for such attacks." (The reference to aligning with advocacy groups refers to a letter issued on the same day by GLAAD, which more directly attacked specific stories and authors and demanded that the Times "stop printing biased anti-trans stories." The Times letter writers stated subsequently, in an addendum to their initial letter, that the Times contributors' letter and the GLAAD statement are "very different documents," although it did note that the two statements' timing had been coordinated, and added some specificity to the earlier letter by adding that its complaint was one of "editorial bias" by the paper.)

Enter the News Guild, whose president posted a letter expressing its concerns about the Times's statement. It asserted that the initial letter "is, in part, critical of recent employment decisions and historic workplace conditions affecting LGBTQIA employees," asserted that "[e]mployees have a federally-protected right to engage in concerted activity to address workplace conditions," and reminded staffers of the Guild's willingness to represent them in such matters. Responding to views expressed by some staffers (as noted in the Semaphor story linked to at the beginning of this paragraph) that the Guild leadership should not have inserted itself into a "public protest that implicitly pitted it against some of the Times’ own union members," the Guild statement asserted that its actions here were appropriate reminders of employees' rights to "take collective action in response to their experience of a hostile and biased work environment" and to speak in concert about "workplace issues." "This is no different," the statement said, "than our advice to members regarding any concerted activity they may engage in regarding reproductive healthcare and access to abortions, for example." (Because writers write and capital-L "Letters" generate endless response Letters, while I was drafting this post a number of staffers responded to the Guild with a letter critical of its action, ie. "[W]e don’t accept [ ] what the Guild appears to be endorsing: A workplace in which any opinion or disagreement about Times coverage can be recast as a matter of “workplace conditions.”)

Leaving aside legal or professional questions about the extent to which staffers ought to be entitled to publicly criticize other staffers publicly for their work, I ask: Did the "New York Times Letter" constitute "concerted activity to address workplace conditions?" Even the Guild's message is somewhat squirrelly on this point, saying that it came "in response to [the staffer/contributors'] experience of a hostile and biased work environment" and that it involved "workplace issues," as opposed to workplace conditions. Reading the Times contributors' letter with reasonable generosity, one can say two things: 1) the letter addresses and alleges historical bias in the treatment of gay employees in the 1980s as well as bias in its coverage of AIDS issues during that era; and 2) seven words in passing at the end of the letter state that staffers at the Times "endur[e] a workplace made hostile by bias." (The letter also notes that a trans columnist for the paper did not have her contract renewed, but does not suggest the reasons for that were improper.)

Reading it fairly and in context, it is clear that the subject of the letter is specific editorial content to which the Times contributors object. The letter does not make any demands that that content cease, as the GLAAD letter does. (The argument that the Times letter was not coordinated with the GLAAD letter because they're "different documents," despite the concerted timing, strikes me as very weak, but that's neither here nor there for purposes of this post.) Nor does it suggest that the Times is deliberately staking out a discriminatory editorial position on trans issues; it notes that "[p]lenty of reporters at the Times cover trans issues fairly," leaving us with a complaint involving a three or four story numerator over an unspecified but large denominator. A natural reading of the letter is that it is a complaint over editorial content and not over workplace conditions. I decline to make the logical leap, which others have made, of arguing that the contributors' letter is asserting that stories to which one objects in the paper constitute a "workplace conditions" issue, on the logic that they are inherently harmful not only in their effect outside the newsroom but inside it as well. I decline to make a similar leap concerning the Guild's letter or its defense of its letter. Using debaters' logic, or any logic, to make a definitive statement about the actual communicative intent or motives of a speaker is a common but rather silly move given myriad problems with human communication and human nature. But if the Guild's letter does not suggest that editorial content in a newspaper constitutes a "workplace condition," then it either misdescribes the contributors' letter or means very little of anything at all.

Proper respect for the actual content of the contributors' letter demands that it be evaluated on its own merits and addressed for what it does say, I would think. What does not seem true or respectful to me is that it can fairly be read as expressing concern over workplace conditions. Nor does it seem to me that the NLRA can reasonably be read as suggesting that a complaint over particular stories in a newspaper can be read as a protected complaint about workplace conditions. I take those seven words at the end of the letter seriously; but I don't think they alter the fundamental content of the letter. 

As I said, I welcome input from those who are more schooled in labor and employment law. I will say that a brief search of federal court and National Labor Relations Board decisions did not yield any evidence that the Act is or should be read in this fashion. But a brief search is hardly a strong basis for a firm conclusion. I will say that in the context of a journalistic enterprise, it would be bad policy to suggest that complaints about particular stories constitute a statement about workplace conditions subject to protection under the NLRA. It would likewise be a stretch to suggest that a complaint by employees that a food company sells three products (out of an uncertain but large number of products) with unduly high sugar content is a complaint about workplace conditions; but in the context of journalism, allowing such a reading would have graver and more consequential effects. The Guild's attempt to analogize its action here to a statement about reproductive healthcare is a non-starter, unless it meant to suggest that complaints about coverage of reproductive healthcare can constitute a complaint about workplace conditions, which I do not think was what it meant. I prefer to think of most of these communications as consisting of null content outside of the core complaint about three stories and one column. But if the suggestion is indeed the more tendentious one that these stories were inherently harmful in a way that might be likened to the improper presence of toxic materials on a factory floor, it would be a bad and dangerous reading of labor and employment law in the context of a newspaper. But I don't know the field and would be interested to hear contrary arguments, or confirmation, on this point. 

It should not need to be said that my concerns here are about journalism and the effects of labor and employment law on the function of journalism as an institution, and are not a statement about trans issues, trans rights, or the specific stories objected to by the Times contributors who signed the letter. 

Posted by Paul Horwitz on February 22, 2023 at 09:14 AM in Paul Horwitz | Permalink | Comments (0)

Sunday, February 12, 2023

An Excellent Passage on Seminars

This much-shared piece by Vincent Lloyd has mostly been passed around for its account of generational and culture-war conflicts, and treated with praise or skepticism accordingly.* That should not overshadow the fact that in the middle of the article, Lloyd offers a superb brief description of the nature and purpose of seminars, one that's worth quoting at length:

By its nature, a seminar requires patience. Day by day, one intervention builds on another, as one student notices what another student overlooked, and as the professor guides the discussion toward the most important questions. All of this is grounded in a text: Specific words, phrases, arguments, and images from a text offer essential friction for conversation, holding seminar participants accountable to something concrete. The instructor gently—ideally, almost invisibly—guides discussion toward what matters.

The seminar assumes that each student has innate intelligence, even as we come from different backgrounds, have different amounts and sorts of knowledge, and different skills. We can each be formed best if we take advantage of our differing insights to push each other, over time, again and again. When this practice is occasioned by carefully curated texts—not exclusively “great books,” but texts that challenge each other and us as they probe issues of essential importance—a seminar succeeds.

A seminar takes time. The first day, you will be frustrated. The second and the third day, you will be frustrated. Even on the last day, you will be frustrated, though ideally now in a different way. Each intervention in a seminar is incomplete, and gets things wrong. Each subsequent intervention is also incomplete, and also gets things wrong. But there are plenty of insights and surprises, for each participant looks at a text with different eyes.

Lovely. And difficult! And a useful reminder that there is a difference between a seminar, properly taught, and a mere small-enrollment class. (Incidentally, the Journal of Legal Education and other law reviews regularly run articles about how to teach well. Some of them are useful, but in bulk they are repetitive. It would be more useful if they ran a few confessional pieces about teaching badly. Surely that happens too!)  

* On the generational and culture-war aspects of the piece, two observations.

1) Although the generational and culture-war framing is tempting, I think the real story here is one of institutional failure. If one accepts the basic account offered--and one is of course free to defer judgment pending further information--then the main problem here was with the Telluride Association, which a) massively retooled its program in a very short time period, b) despite strong talk about the importance and urgency of this retooling, relegated some of the most important, sensitive, and "emotionally draining" aspects of that program to "college-age students" rather than take on full responsibility for those aspects itself, c) imported (or fell back on as an excuse) a model of "democratic self-governance" that is ill-fitted to this particular institution or at least this aspect of this institution and left the success or failure of what it treated as a crucial enterprise in the hands of high school students, and d) used that model to divest itself of responsibility for acting and asserting authority, when it was clear that action and authority were required. It was not unique in this: many universities, among other institutions, seem to have lost the ability to give a firm "no" or to take responsibility for policing their own operations in ways that preserve their proper purpose and functioning as institutions. As much as I enjoy and find some merit in the generational framing, it seems to me that much of the fault lies with the older generation in such situations and that more of the attention and responsibility ought to be placed there. 

2) Although, for moral and mental health reasons, I avoid That Popular Social Media Site, I was curious enough about the reaction to this piece to visit it long enough to check. The positive reactions to the piece were mostly what one would expect. The critical reactions clumped around two points: a) The piece was published in the wrong place and is therefore suspect. b) The author abused his power by criticizing a young person, anonymously but with the possibility that someone could identify them. What these criticisms share is that neither of them is substantive or factual. The first criticism is also mostly if not entirely silly. (Doubly so because the kinds of venues that would surely have been deemed acceptable, the Atlantics or Slates, are neither particularly good nor run by people who show a particular abundance of professionalism or integrity.) I have some vague sympathy for the second criticism, particularly because the nature of social media culture and the fact of our large population means some people will always be happy to heap abuse on anyone who comes within their sights. But it's still not substantive or factual, and it depends in this case on a decidedly shallow, class-distorted account of power and its abuse. Nor does it seem genuinely respectful of that young person or her agency and capacity for decision-making and responsibility. 

Of course, neither of these points affect the passage about seminars, which is excellent in its own right. 

Posted by Paul Horwitz on February 12, 2023 at 10:03 AM in Paul Horwitz | Permalink | Comments (0)