PrawfsBlawg

The Political Economy of, inter alia, Law and Political Economy

From this recent (and paywalled) piece in New York Magazine by Jonathan Chait:

Six months after Obama left office, Larry Kramer, a law professor and president of the William and Flora Hewlett Foundation, convened a meeting at the ‘21’ club in Manhattan. The group included an array of leading philanthropists, think-tank heads, donors, progressive writers, and academics. As Michael Tomasky, one of the participants, later reported, the group continued its discussions the following day at the Ford Foundation, where its members began to envision themselves as the founders of a new intellectual paradigm that would move beyond the failed neoliberalism of the Obama era....

[A]nti-neoliberalism had some key advantages that made it irresistible to its progressive audience. It supplied an explanation for Trump’s victory that did not require progressives to compromise on their political values in order to allow Democrats to regain power. To the contrary, this theory allowed — nay, demanded — the fulfillment of every progressive wish. A Green New Deal, a jobs guarantee, higher minimum wage, Medicare for All — these proposals were not only possible but politically necessary to defeat Trump.

The plan devised by Kramer and his allies explained how anti-neoliberal thought would be disseminated. “It makes sense to begin with the academy and think tanks — though we will not want to confine ourselves exclusively to these even in the beginning — and to work out from there in subsequent stages,” a Hewlett strategy document explained. Hewlett poured $140 million into grants to writers, magazines (The Atlantic, Washington Monthly, and The American Prospect, among many others), conferences, podcasts, academic centers (at universities like Harvard, Columbia, and Georgetown), and think tanks. The Roosevelt Institute’s budget more than tripled. The massive upsurge in demand for essays, columns, and lectures assailing neoliberalism was met rapidly with a booming supply....

Devotees of the anti-neoliberal movement gained special access. Jennifer Harris, who had been running a Hewlett Foundation grant program called the Economy and Society Initiative, which sought to counter neoliberal thinking, joined the administration and became, as the Times put it in a flattering profile, “the Queen Bee of Bidenomics,” who “had a hand in everything from making the case for industrial policy to designing a new framework for trade.” Twenty-five grantees from Harris’s project, as well as two fellow Hewlett employees, joined her in the administration.

I offer all of this in a fairly value-neutral way, descriptive way. At most, the value added here is just good plain caution. I am not endorsing or disagreeing with the rest of Chait's article. I definitely don't intend this as a criticism of law and political economy as a scholarly endeavor. (I understand that some members of the law and political economy movement who currently reside in the academy may also understand LPE as a political project and either move, or see themselves moving, between the academy and other, non-intellectual spaces, such as think tanks, foundations, congressional staff, and the executive branch. I don't intend this as a judgment of that branch, either, but to the extent that those individuals are engaged in extra-academic matters that involve seeking and exercising power and status, of course they deserve careful scrutiny, journalistic investigation, and, where warranted, criticism. If you're in the arena, you're in the arena.) To the contrary, I find the best of the law and political economy work excellent and provocative, although I remain perplexed that so much of it says so little about the prior 250 years of work in political economy. (To be sure, a certain number of articles are creeping into the law reviews that bear the words "political economy of" in their titles but say nothing for which any grounding in political economy, old or new, is required. But that is pretty standard in the period when a new entrant into the "law and" field becomes sexy. The best work should not be blamed for the inevitable coattail-riding. Only the authors of that work, and law review editors, and the legal academy for relying on law review editors, should bear the blame.)  

At most, I offer it to suggest the following: 1) As Jesus said, if I recall correctly, the rich are always with us. That most definitely includes academics, philanthropists, and "progressive writers" who hang out at the 21 Club or the Ford Foundation building. 2) As I suggested the other day, journalism lost a lot when the era of mass and diffuse funding from large and small businesses through advertising faded. Targeted funding from ideologically committed groups for specific projects is dangerous as hell, and one should distrust the magazines, radio networks, and other media organs that take that money, with or without disclosure. 3) Mocking the number of people and projects that are in a symbiotic relationship with and draw sustenance from the teat of foundations, billionaires, establishment types, and so on is pretty low-hanging fruit. It should be plucked at every opportunity. 4) More to the point, it should be observed. For every political economy-draped narrative that involves political movements, funded by shadowy figures with connections to vast reserves of money, engaged in ideological projects and seeking to extend their power and influence, there is almost certainly a counter-narrative about the money, foundations, shadowy figures, and unmentioned motives behind the effort to frame, publicize, and exploit that narrative. As long as things like foundations, funders, and project meetings are involved, there is a political economy story--one that generally involves competition for power, status, influence, employment, funding, and prestige within both the elite academic ecosystem and the foundation/think-tank/rich-philanthropist-heir ecosystem. It's a competition for money, power, and status all the way down.

Personally, I always find both sides of the game--both the shadowy networks that are written about and the shadowy networks that write about them--interesting and worth investigating. It's only when we pretend only one side exists that we fail in our intellectual duties and risk being suckered.     

 

A Reply to Howard on the Press

I appreciate Howard's courteous reply. I hope it is clear that my rather tartly worded post is aimed not at Howard but at a particular group of press critics. For me, Nichols is not terribly important. (I think this is also how I would characterize his writing in general these days; I've admired some of his work but I think he's imbibed too much Internet fame and become too much the Atlantic contributor, both of which are intellectually harmful.) Rosen and Sullivan, on the other hand, are indeed, in my view, very bad press critics; they were bad even before Trump announced his first candidacy and, like many, got far worse after that.

I appreciate Howard's further elaborations in his post below. (And note the earlier post that elicited my sharp words about Rosen and Sullivan.) In attempting to think more specifically about his views, as opposed to those of the critics I was warning against, I imagine that, as is often the case, there are vast fields of agreement, and that identifying the precise points of disagreement is more valuable and difficult than anything that follows from that. 

As far as that goes, I also deplore inaccuracy and imbalance; who doesn't? But I do disagree with his add-on reference to inaccuracy and imbalance "in the name of objectivity." This, too, is a popular view and, lest there be any mistake about it, was oft-heard back when Howard and I were in journalism school. But I take the view that 1) if the word "objectivity" became a cliche in journalism-talk, "there is no such thing as objectivity" (a phrase Howard did not utter, to be clear) has long since attained the same status; and 2) for journalists, writing in the heat of the moment, often unburdened by knowledge and increasingly unaided by good editors, shooting for objectivity is much better than discarding it because it is incapable of perfect attainment. I'm happy to agree to disagree about this or, as I said, to figure out exactly where and how much we disagree. I would simply point readers to Marty Baron's arguments on this point (there is a critical response from Wesley Lowery, who I would put generally in Rosen and Sullivan's company) and a related argument from Kwame Anthony Appiah about neutrality. Of course, used this way "objectivity" becomes more of a placeholder for a set of institutional goals and practices, and I would be fine with it if we used the term "professionalism," or "kumquats" for that matter, instead. I do not think rejecting objectivity does a better job than shooting for it when it comes to avoiding "narratives," both because they're in the nature of the game in journalism and more broadly because we all engage in narrative framing all the time. Nor does it do a better job of avoiding partisan narratives in particular.

I don't think the press is especially or uniquely susceptible to narratives pushed by Republicans as opposed to narratives pushed by Democrats, a phenomenon which happens with equal frequency because both parties are lousy with professional narrative-pushers. We did not live through two weeks of repetitive commentary about childless cat ladies because the press was independently pursuing an issue without worrying about accusations of bias. The chances that the quote was unearthed and pushed by someone other than a Democratic opposition researcher asymptotically approach zero, and the press ate it up. The press did not go all in on Biden's age because it was buying into a Republican-concocted narrative. It did so because 1) there was an actual issue there, 2) it was a hell of a story, 3) the debate gave the press, which knew it had done less reporting on that issue than it should have until recently, the hook to write about it, at which point it compensated or overcompensated for its prior quietude, and 4) Democrats who wanted Biden out of the race then pushed the story hard, and pushback, also from Democrats, created the sense of conflict that generates news coverage. Republicans may have been gleeful spectators, but that's all they were. (The press should refocus on Trump's age and fitness. But one should remember in fairness that it ran a slew of those stories between 2019 and 2021, often more poorly sourced and speculative than the Biden age stories.) And they wrote about Trump showing grit in the moments after being shot not because Republicans encouraged them to do so but because it was also a hell of a story. (They wrote a lot of nonsense after that, but I think most of the nonsense was self-generated, as well as being drawn from the press's current, poisonous, bottomless well of a reporting resource: Twitter.)

I also do not think that the approach pushed by critics of the old-fashioned press approach makes for more accuracy. I anything, I think it is even more likely to result in blatant partiality. (For some, the idea is that at least the partiality will be more visible in the reporting. Whether that's so or not, my concern is that the reporting will simply be worse--that it will result in some stories being poorly done and others being missed altogether.)  

Finally, I see no evidence that the press's move, both a conscious one and a symptom of generational change, away from "objectivity" and toward something else after 2016, encouraged by folks such as Lowery, had much effect at all on the Trump presidency, the 2020 election, public opinion, or anything else. And in the long run, I doubt that the current sweetheart coverage it is now giving Harris, or the later negative narratives it will run with for some period of time as it overcompensates for its current puffery, or the more critical reporting it will devote to Trump and Vance to please subscribers (it turns out that big corporate advertisers did more to benefit journalism than to harm it; the subscriber model will kill journalism in the act of trying to save it) and out of "fear of accusations of bias," will have much effect either. The press, like the president who was at a standstill in the polls and leaking support in every direction, has done plenty of pushing of the "accurate Democratic argument that Trump is an authoritarian who undermines and threatens the constitutional order" between 2016 and today. I tend to find many of the facts underlying that argument--although we should use the correct label: it's not an argument; it is, in fact, another narrative--largely accurate and newsworthy and therefore worthy of reporting. But simply trumpeting it, as critics like Sullivan thought and think we should at every opportunity, turns out to be an essentially empty exercise if the assumption is that simply repeating the phrase frequently will somehow change things. When Trump, or any candidate or public official, lies, the press should report that fact clearly. When he says something authoritarian, the press should likewise report it. But the idea that it makes a difference, to either change in the world or better journalism, whether its headline uses the word "authoritarian" or not, is a fallacy. Again, this is not what Howard wrote. But I think it's a fair characterization of what Rosen and Sullivan believe. I think they genuinely believe that putting the word in the headline will ward off authoritarianism, and that every time they are proved wrong they take this as evidence that the press should put the word in the headline even more often. In their Escher-like views and enthusiasm, they are impervious to refutation. 

And, perhaps somewhat contra Howard, I think that belief, and the associated belief that the press must adopt a new approach, does indeed lead not to more accurate reporting but to ignoring or suppressing genuine news--it encourages "not reporting" as well as "accurately reporting." The press did adopt a new approach after 2016--not to the extent that Rosen or Sullivan wanted, and certainly not as much as Democratic operatives wanted, but the changes, and the pressure to do so from within and without, were obvious. The result was some missed or underplayed stories, some unforced errors, a momentary increase in subscribers, and nothing else. It turns out that the way to fight authoritarianism is to get out there and fight authoritarians in one's capacity as a citizen, not to change journalism (or art, or academic writing, or any other specialized, professional, or avocational activity). 

Of course all of these things can be debated and much of the debate will turn on perspective. People who mistakenly think the press is, more or less literally, a wholly owned subsidiary of the Democratic Party will evaluate the evidence one way, and people who think (rather incredibly) that Maggie Haberman personally loves Donald Trump will evaluate it another way. I suspect, but not with complete certainty, that my disagreement with Howard can be put down to three things. 1) I think the critics he cites are awful. 2) I think we have different views of the role and value of "objectivity" in professional journalism. 3) I think we probably have different views about whether an "emergency" is a sound reason for changing fundamental practices in journalism or not. I may be wrong. And even if I'm right that leaves a lot of room for agreement on particular issues, as well as disagreement about how to characterize particular moves on the part of the press. But I think that's the core of where we part ways. 

I should add that I think Howard's views are more popular than mine, and in many cases more popular within the press itself. I just think they are wrong, if not in every particular then in the general tendency. Our main social and political crisis is an institutional crisis. It does not demand wholesale change to, or abandonment of, those institutions. It demands a firm re-commitment to them, and to their standard practices. Although I see this as demand as requiring activity and energy, my position may also seem to put me on the side of staidness, conventionality, and quietism. I'm pretty content with that. In my view, the changes we have seen in the profession in the past few years, that a new generation of "journalists" (many of whom do more commentary than actual reporting) have demanded, and that critics like Rosen and Sullivan and others are urging, will do little to combat authoritarianism. I fear that instead, those changes will ultimately result in a further drop in public trust in journalism, a decrease in the quality of the work done by that institution, and the further and perhaps final financial collapse of the institutional press. I doubt all my fears will be realized. But I think the best way to forestall those eventualities is for the press to refocus on doing its job in a fairly conventional, old-fashioned, and admittedly imperfect and aspirational way.  

"...disinclined to listen to media professors...."

I tend not to see eye to eye with my friend and co-blogger Howard on press issues, perhaps because we went to competing journalism schools, both of which, as journalism programs go, are very fine. (Mine was better. At least it used to be. Now that it offers master's degrees and doctorates instead of overpriced but excellent meat-and-potatoes training, it may be much worse.) That's okay! Marketplace of ideas and all that. But because he recently cited Jay Rosen, a non-journalist press critic who has had the misfortune to become a popular online commentator (online popularity being a recipe for ego and hubris), I thought I would share this recent Substack piece, by Mike Pesca, an actual journalist. Examining recent events, the piece quite rightly argues that Rosen is--once again--wrong in his position on how the press should cover the election and specifically former president Trump's candidacy, and likely to remain wrong by retaining and repeating the same mistaken position, no matter the evidence and without much sign of the capacity to acknowledge errors or reexamine his positions. Pesca also notes the endless wrongness of Margaret Sullivan, formerly a high-ranking journalist before becoming the last and worst of the New York Times's public editors; she has since enjoyed sinecures at the Washington Post and the Guardian and also, alas, teaches at my alma mater journalism school. 

Press criticism can be a valuable and necessary thing. (Among other things, it is useful in contextualizing the increasingly negative view the Supreme Court may hold of the press and why there may be actual reasons that its members, along with large numbers of the public, are more likely today than in past years to view it "in a negative light.") On the other hand, as Thor would say, as press critics Rosen and Sullivan are just the worst. (Tom Nichols, also mentioned by Wasserman, has been an interesting writer from time to time but is not much better.) As Pesca notes, most sensible working journalists will simply ignore them--Rosen because he's wrong and not a journalist and Sullivan because, well, because she's awful. This is an excellent approach for non-journalists as well. 

"I'd Give it a...."

It is possible I've offered a complaint about quotes by law professors awarding low hypothetical "grades" to various opinions and statements before. But it's an evergreen topic and, every now and then, several examples will catch my eye. Law professors, who purport to hate and groan through the grading process, nevertheless seem to have a strong attachment to handing out "grades" to judges and their opinions. I mostly avoid Twitter nowadays, but my recollection is that there are some noteworthy law professors there who have handed out thousands grades in their teaching careers, and almost as many hypothetical grades. I have never entirely understood the lure of this habit; as I say, my understanding was that professors hate grading. But it must stop. 

One oddity of these "grades" is that the opinions they are awarded to are substantially worked on by law clerks. These clerks have already, ex hypothesi, received As like candy on Halloween, and were praised by their mentors to anyone who asked as the smartest young lawyer since Brandeis. And they are working on team-production opinions with other law clerks and with their judges in a period where, at least on the Supreme Court, the number of decided cases is low and the length and technical detail of the opinions high. I may disagree--and in the case of, say, many of the writings of individual Fifth Circuit judges, violently disagree--with some or many of those opinions. But as a "grader," I am inclined to say that the quality of modern judicial opinions is very high. In technical respects, it is higher than the quality of opinions written during the periods when some of the graders were clerking. The low grades that are suddenly so freely handed out to former A students are silly. (That's a judgment of quality along certain lines, I should add. As a reader, and for other reasons, I would gladly trade completeness and sheer technical skill for brevity and sharpness of thought and language, along Holmesian lines. But there was only one Holmes, and in any event that is not the prevailing style. I would add that while I think the quality of lower court opinions is also high, in part because the clerk selection process has become such a big affair, there are lower court judges for whom the opportunity to score points or use cute Internet-ish language trumps, so to speak, quality in writing. Again, the Fifth Circuit springs to mind.) 

 

Another is that judges on apex courts (and on lower courts, sometimes because they have no choice and sometimes because they're eager to do so) don't simply stand still; they move the law. This is a rough fit for grading by law professors, many of whom want students not only to regurgitate the law as they were taught it, but to repeat and flatter the views of the grading professor. (I try not to be one of those professors. I'm pretty sure I succeed. But, on information and belief, they're out there.) Professors who grade opinions of this sort, which is many of them, and who grade in the manner that they do, are especially liable to be affected by their priors. An opinion that moves or manipulates existing law is, I would guess, more likely to be excoriated as, heaven forfend, a "C" effort when the movement and manipulation is, in the professor's view, running in the wrong direction. 

 

More important still are two other factors. First, at least based on what I have seen of grading at six different law schools, it takes hard, hard work to get a genuinely low grade. Of course it does happen, including to some of my students, and some of them a) have good reasons and b) become great lawyers. But genuinely low grades are nevertheless far from the norm. Some law schools—I generally think of them as opportunity schools, and have taught at one--​ demand a given number of lower grades, so that they can identify and remove some of the low-performing students they took a chance on, and whose first-year tuition payments they were happy to cash. But most law schools and all first-tier schools dislike low grades. At those schools, it's very hard to get in and even harder to get out--that is, even harder to manage not to graduate. They have a generous curve, tending to a B+ median or, somehow, higher. Given the difficulty of writing something coherent in three hours while artificially highlighting the points the professor wants to see, and given general declines in writing skill, even a B+ exam can be less than impressive as a reading experience. (I'm not sure I'd like to go back and reread even some of my A exams.) And for some types of class, the curve is either higher still or nonexistent. If the exam or paper was written for a small-enrollment class that doesn't require a curve, most professors, both because they like awarding high grades and because they know the effects of low grades in seminars on future enrollment in that class, are as generous as they can manage without hearing from the associate dean or registrar. Grade inflation is alive and well at most law schools and, despite occasional efforts to address it, thriving like a tropical jungle at the elite schools.

 

Second is the sheer hubris involved. That hubris embraces the hypothetical grade awarded, the grading skills of the person awarding the hypothetical grade, and the grader's confidence in him- or herself, his or her position, and the shimmer of authority, expertise, correctness, finality of judgment, gatekeeping, influence, etc. that surrounds the very idea of handing out a "grade." Academic expertise and its importance are real. So is the self-love of the academic expert, the overestimation of the scope of that expertise, its misapplication, and the expert's belief that his or her public bouquets and brickbats matter. 

 

One option is simply to say things like, "I think it's a bad opinion" or "I think the judge's view is wrong." It's not very quotable, but it is a sensible approach. But if we are going to insist on continuing to hand out hypothetical grades, I'd like to see us be more honest about our grading practices and more humble about the thing we are "grading." A sound and probably accurate statement would run more like this: "If this opinion were one of my students' exams, I'd give it--let's face it, I'd give it an A, or at worst an A-. I hate it anyway."     

The Core Crisis of Our Time is an Institutional Crisis, pt. MMDCLIX

Also in anti-institutionalist news, this forthcoming book attributed to Kevin Roberts, head of the Heritage Foundation, a sometime Washington think tank, with an introduction attributed to J.D. Vance. (There are occasions where I think the listing of an author is true-to-fact, and occasions--say, judicial opinions, Ivy League admissions essays, and celebrity autobiographies--where one should avoid making a firm assumption to that effect. This is one of the latter occasions.) It is currently titled Dawn's Early Light: Taking Back Washington to Save America. The book's description suggests that "Washington" (and possibly also "America") should be understood here as more of a placeholder, given the number of institutions outside of Washington that it wishes to "take back." Its salvific vision is straight out of the Battle of Bến Tre:

Chapter by chapter, it identifies institutions that conservatives need to build, others that we need to take back, and more still that are too corrupt to save: Ivy League colleges, the FBI, the New York Times, the National Institute of Allergy and Infectious Diseases, the Department of Education, BlackRock, the Bill and Melinda Gates Foundation, the National Endowment for Democracy, to name a few.

I have had interesting discussions with interesting and thoughtful conservative friends who despair of various institutions, although in my view some of their despair is overly pessimistic, or reasonably pessimistic but overly operatic. (In many instances, I have had interesting discussions with similarly thoughtful liberal friends who despair of the same institutions, generally for the same reasons.) I haven't read the book, so I'm going out on a limb here, but I don't think this book is a gateway to such conversations. If the description holds, it seems to have far more in common with those on the left whom I have criticized for taking a view of institutions that purports to be critical or reformist but is ultimately either destructive of or fundamentally indifferent to them. In any event, since my examples of anti-institutionalism generally focus on the left, given that my home institution is the academy, I offer this prominent example as a reminder, as much to myself as others, that the phenomenon is best defined as a social and not, in the colloquial sense, a political one. (May I add, despite being a big fan of capitalism and a frequent bore on the topic of everyday, small-c corruption being more important than large-C "Corruption," that anyone who makes $600,000 as the head of a former think tank should go easy on the phrase "too corrupt to save.")

Of obvious note to a) the presidential election, b) my location of the book in, as academics these days would say, an anti-institutionalist "space," and c) the general cravenness of authors, publishers, and politicians: the book until recently had the charming subtitle "Burning Down Washington to Save America."  

Law Schools and State Court Clerkships

Although I get its emails, I don't read Above the Law, haven't for years (probably since before David Lat's departure), and can't imagine why anyone would. But I offer sincere credit where it's due: my generally-ignored email from that site tells me it is publicizing a list of law schools that are the most active and successful in securing state court clerkships. Kudos to author Staci Zaretsky for her post. (It doesn't change my mind about the truism that the post-Lat site is dreadful.) The schools at the top of the list, from Princeton Review, are

1. Seton Hall University School of Law (no change)
2. Rutgers School of Law (no change)
3. University of Maryland Francis King Carey School of Law (ranked #4 last year)
4. Widener University Delaware Law School (ranked #7 last year)
5. Vermont Law and Graduate School (unranked last year)
6. University of Hawaii at Manoa William S. Richardson School of Law (ranked #8 last year)
7. Drexel University Thomas R. Kline School of Law (ranked #3 last year)
8. University of St. Thomas School of Law (MN) (ranked #5 last year)
9. University of Minnesota – Law School (ranked #10 last year)
10. University of Montana School of Law (unranked last year)

One notes that: 1) none of these schools are the vaunted "prestige" schools; 2) federal clerkships confer more status and prestige on their recipients (and on the schools that are successful in placing federal clerks) than state court clerkships; and 3) in my view, state court clerkships may well be more important and can offer better training in more areas of law than federal court clerkships.

Of course the third point is debatable. To the extent that it is true, however, that suggests that (4) prestigious law schools, despite the verbiage, are less interested in sending their graduates places that provide the greatest potential for being "change agents" tout court. Rather, they, and the vast array of professors, commentators, advice networks, and so on that steer people to federal clerkships for ostensibly non-crass, social-change-oriented reasons, are interested in jobs that achieve such goals provided that those jobs also confer a sufficient amount of status and prestige. Professors who are happy to talk about how it is a scandal that law schools don't teach more state constitutional law, how much action there is in state constitutional law, how state supreme courts can serve as a bulwark for rights against conservative federal courts, and so on would nevertheless be aghast at the idea of steering their best and brightest toward state supreme courts rather than federal district or appellate courts. In the British gentlemen's phrase, it just isn't done. And the process becomes self-reinforcing. In faculty hiring, for instance, we all treat federal court clerkships as proxies for the quality or promise of the candidate, even where the candidate's interest is in an area of law that is mostly dealt with in state courts, because they generally are a proxy for various achievements.

As Vonnegut would say, so it goes.  

P.S.: In fairness, let me add a note from a correspondent, who suggests that because it is harder to form pipelines from state court clerkships to firm jobs, post-clerkship outcomes, rather than prestige, may be a big part of where law schools focus their efforts. I take the point, and take it as a critique (although it was offered in a warm and collegial fashion) rather than calling it a friendly amendment or something of the sort. I suppose I'd say on the one hand that I think the point certainly can explain and justify rational choices on the part of applicants and schools, and on the other that, just as I'm not sure that firms' disproportionate focus on graduates of a small number of schools, even as against top students at other schools, is entirely rational or that immurement in prestige as such has nothing to do with it, so I'm not entirely sure it makes sense that federal clerkships are prized more highly than state court clerkships by firms, to an extent that then drives other actions within the larger ecosystem.  

Two Notes on Gerontocracy

First, I remain convinced that the most interesting and valuable piece of legal scholarship in American constitutional law I have read in the past year or two is Sam Moyn's piece on gerontocracy in Granta, "The Trouble With Old Men." This despite because of the fact that it a) mentions Hesiod, James Frazer, and the regrettable lack of mandatory retirement in American universities more frequently than it does the United States Constitution, which is mentioned exactly zero times, and b) is not published in a law review. 

Second, and with essentially no hope at all, I would say that for anyone who is serious about Supreme Court term limits for other than uninteresting short-term reasons, this--the season of Biden, Ginsburg, Trump, and Feinstein (to mention only those whose age has been or come close to front and center)--is about as good a time as one is likely to get to make some progress, 22nd Amendment-style, on a bundled, prospectively oriented constitutional amendment that provides both reasonable term limits on the Court and reasonable age limits in the executive and legislative branches.  Even if one doesn’t change the lower age limit, it seems to me that 30 years (if one sets the upper limit at 65) is a pretty substantial window of opportunity in which to seek and take one’s opportunity to run for the presidency. (For what it’s worth, I felt the same way in 2016 and 2020 and considered it somewhere between questionable and dishonorable for a number of candidates in both parties, including Trump, Clinton, and Biden, as well as Sanders and Warren, to seek the office. Offices are not entitlements, and the possibility that the vagaries of time and chance might cause a particular politician to miss his or her shot should bother no one except for the politician. Nor was there any adequate excuse, even during wartime, for Roosevelt to make virtually a deathbed run for a fourth term.)

A Serious Issue, Unseriously Reported

As Paul Caron notes, Inside Higher Education has an article suggesting that Columbia law professor Katherine Franke faces potential dismissal by her university. If she were dismissed or seriously disciplined for the statements that apparently are the focus here, statements that I find rather silly, that would be a cause for serious alarm and objection. Whatever one thinks of what she said, it is not proper cause for academic dismissal. Those who are concerned to protect academic freedom should watch vigilantly.

That said, may I note that the article is so poor that it cannot possibly count as a serious and reliable account. (It is also dismally written. I don't know whether the fault is the reporter's or the editors'. Wherever the fault lies, something went very wrong for the lede to be relegated to the thirteenth paragraph.) Despite a mild genuflection toward the idea of seeking comment elsewhere, it is essentially a single-source story, that source being Prof. Franke, and it mostly simply retails her own arguments and complaints. The idea that she may be fired--something that should not happen, based on what is presented here, and that I would of course oppose--is based wholly on this statement: "The university did send a copy of its Office of Equal Opportunity and Affirmative Action policies, which include termination as one of multiple possible sanctions for alleged discrimination and harassment. Franke says her lawyer has told her she has a 50-50 chance of being fired." I am not sure I would take a list of sanctions that includes dismissal as strong evidence of what will actually happen, and I am disinclined to give much weight to a second-hand report of a lawyer's probability estimate.

At the risk of tiresome repetition, I would oppose such an outcome. But neither this story, nor a story published--on the very the same day--by The Intercept, which is better written and better done but otherwise mostly identical in its substance and sourcing, should yet be taken as serious indicators of what is to come. I was not a journalist for very long, although I was glad to learn a few journalism skills at the university at which Prof. Franke teaches. But from that perspective, and especially given their overlap, both stories seem closer to transcription or to a PR campaign than to serious independent journalism.  

Hmmm….

Any present or former journalist, or anyone who has written an op-ed or essay for a general interest publication, knows that editors are keen on compelling openings that suggest to the reader the immense importance of the topic. (Law reviews increasingly demand the same, for roughly the same reason: the authors are trying to captivate student editors who are a short step above being general readers themselves.)

It’s an understandable practice. But it carries with it tremendous temptations to exaggerate, mythologize, or pay implicit tribute to Harry Frankfurt. So we come to the first paragraph of this essay in the online spaces of the midbrow conservative “public intellectual” publication City Journal. I have to wonder: Does anyone really think that anything in this paragraph after the first six words is true? Does the author, a law school graduate, really think so? I just can't see how.   

Hardly anyone reads law review articles, but those who do are among the most influential readers in the country. Supreme Court justices and federal and state judges rely on academic theories to decide important cases and to set the legal doctrines that shape American life. Professors shape their students’ worldviews by assigning articles appearing in prestigious journals to show that they are authoritative—the law equivalent of peer-reviewed. Though these journals are student-run and -edited, they often legitimize the ideas that become law and common knowledge.

U. of Alabama Law Seeking Assistant Dean of Public Interest Law/Assistant Professor of Law in Residence

My lovely law school, the University of Alabama School of Law, is seeking an Assistant Dean of Public Interest Law, who also will be Assistant Professor of Law in Residence. From the job search portal, a brief description: "The Assistant Dean will manage the organization, planning, and operations of the Public Interest Institute of the Law School. The Assistant Dean will also teach Public Interest Lawyering and other related courses."

I encourage folks to apply or to spread the news to others who might be interested. For what it's worth, whoever is fortunate to get the job will find that we have a substantial population of law students who are deeply interested in and committed to public interest law and our public interest program. The Law School offers a Public Interest Certificate to students who have demonstrated their commitment to public interest law through hard work in clinics, courses, and community service, and every year the number of students graduating with a public interest certificate grows. You'll also find that our relatively low tuition makes the school attractive to those students precisely because upon graduation, they are much freer to take up a job in or around public interest work. In short, you'll have the pleasure of working with a very serious, enthusiastic group at a law school with a deep student and institutional commitment to public interest work.  

There's a job portal with a longer description of the job and how to apply. Here it is: https://careers.ua.edu/jobs/assistant-dean-of-public-interest-law-and-assistant-professor-of-law-in-residence-523889-tuscaloosa-alabama-united-states. If you have any serious questions about the school or about living here, feel free to email me.  

On Judicial Ethics and "corruption:" Celebs, Authors, and Medicis

In a pair of posts at the VC, Josh Blackman raises some valuable questions about modern judicial ethics. I think of them as follows: 1) Are books and book contracts for Supreme Court justices unethical? 1a) Are they corrupt? 2) Are gifts to justices unethical? 2a) Are they corrupt? 3) Are standard-issue versions of the examples of (1) and (2) no different from, or even worse than, a 26-year trail of lavishly generous patronage from real or ostensible "friends," from a legal-ethical or general-ethical perspective?  

As you can see, I tend to think of this general topic in terms of two separate categories: what is unethical in a formal legal-professional sense, and what is dishonorable or corrupt. I mean "corrupt" in the small-c sense not of acting for gain, but of moral debasement, degradation, or decline. I think it's a mistake for lawyers to treat every moral and ethical issue as a legal one, and for interest groups to publicize every act of alleged corruption as if it necessarily has some legal consequence--and, conversely, to call it a "nothing-burger" if it doesn't. The question whether a judge should recuse is relatively uninteresting to me, and the "scandal"-based arguments for recusal or punishment are often unpersuasive and, from a systemic perspective, unwise or ill-thought-out. The question whether office-holders or people with power have lost what George Washington called "a proper Sense of Honor," on the other hand, I find both interesting and crucial. that sort of quotidian corruption is, after all, the ordinary state of affairs in politics and political advocacy, and the effects of everyday small-c corruption are far more pervasive, routine, and damaging than legally unethical or criminal behavior. Corruption in this sense is also more interesting because it raises harder questions about how to participate in politics, how to live and behave in a corrupt world, what should and shouldn't be taken for granted, when and whether to respond in kind, what the going price of Wales is, and so on.

Talking about corruption in the small-c sense is admittedly harder to pin down, harder to address, and less likely to result in answers to the question what to do, although it is more conducive to asking the question "How shall I live?" It is also, perhaps, sometimes harder to face. Partisans, inside and outside of electoral politics and within both the for-profit and nonprofit sectors, are generally already soaking in it. If you already get your funding from Arabella Advisors or Leonard Leo and the Marble Freedom Trust or David Brock and his sponsors and vehicles, you are already steeped in small-c, often within-the-rules corruption. It's perhaps understandable that advocacy groups, which draw their water from the same well, would thus focus on what is actionably wrong rather than what is permitted but degrading. The greatest risk of such corruption is not so much that you will change your views or alter your life, but that you won't change a thing--just accept and entrench a dishonorable and dissatisfactory way of life, politics, and public and private morality. But this kind of corruption is still worth our attention--still worth, as it were, the continual effort to make it unfamiliar--even where it falls short of some code violation. 

From that perspective, I doubt that books or book advances present an ethical issue. Morally, perhaps the call is a little closer, given the size of book advances and, perhaps more importantly and interestingly, the niche nature of markets and the degree to which, in a polarized society, some presses (and judicial authors) are going to be thinking more about how a book should be tailored to one side of the usual divide or the other rather than seeking a general audience. My sense of the question is perhaps affected by my view that some judges--Posner, Scalia, Friendly, and others--have published books whose absence would be a loss, and so one doesn't want to disincentivize their creation. The Code of Judicial Conduct agrees. The reason I see a moral flipside is that the books most likely to earn a substantial advance are not the deep dives, but books that simply mouth platitudes or memoirs. Despite the fact that some judges obviously have interesting stories to tell, the memoirs that get larger advances generally trade off of the judge's status as a celebrity or as an idol to the right or left. Others may be keener on such projects insofar as they bridge the gap with the general public. But it is easy for such books to be not a general bridge-building effort but more of a targeted liberal or conservative project. Is that really a worthy supplement to an already-sufficient income?

On gifts, my loose read of the general approach is that we take a liberal view of gifts that are either truly personal, fundamentally trivial, or commensurate with the circumstances--both the occasion and the relationship--while requiring reporting in other circumstances to allow parties the opportunity to judge for themselves whether and when they might raise questions about the judge's impartiality in particular matters. Most of the time, that is sufficient. But a factor perhaps less accounted for is the celebrity status of a Supreme Court justice. That status can contribute to a small-c corruption, in which the justice receives gifts because of who he or she is as a general public figure, or as a prominent figure in the political divide. The gift may be of trivial value to the giver; but it can still tempt the judge to enjoy that celebrity status too much, or to become too much accustomed to access to special velvet-rope privileges handed to them because of the office they occupy. Judges are not special; judicial office is special. When those gifts accrue to the person and not the office, an air of entitlement or unearned privilege can develop. 

In that sense, one might justly be uneasy about things like Justice Jackson's gift of precious and expensive Beyonce tickets, the subject of Josh's second post. I'm not quite sure how to read that post, because some of it may be deliberately parodic. Of course no sensible person treats a quip based on song titles as actually intended to sell Beyonce records, or thinks Beyonce was seeking to curry influence with Justice Jackson; I therefore assume that Josh's comments on that score were intended to be humorous. But that doesn't make such gifts unproblematic. The problem with them, as I've suggested, is not that they involve a quid pro quo or something of the sort, but that there is something unseemly about even duly-reported generosity of this sort when it permits judges or justice to take for granted a celebrity or elite lifestyle that would otherwise be unavailable to them. It's the kind of generosity one enjoys by virtue of being a celebrity, not a judge, and a judge should avoid that celebrity status even if it means rejecting the fruits. (Even though these are legal events, I feel the same way about justices speaking at fancy ACS or FedSoc events--not that donning evening wear to listen to a justice make light jokes over the dessert course can hold appeal to anyone.) If you wouldn't get in to a concert or be able to afford the tickets otherwise, you shouldn't do so because you've become famous or notorious or adored by virtue of the robes you wear or the publicity your confirmation generated. 

Does that make such a gift as bad or worse than a 26-year record of lavish gifts and quasi-loans extending to motor homes, Lifestyles of the Rich and Famous junkets, tuition, and antique Bibles, real estate purchases, and the lavishing of lavish similar attentions on the justice's spouse? Well, of course not. Others may argue about their legality or consequences for recusal in individual cases. I'm less interested in the legal question than in its corruption and corrupting nature, in the small-c sense. I don't know whether, as Josh writes, "no one doubts that [Justice Thomas] and Harlan Crow are genuine friends." I'm also not sure why he is firm about a friendship that developed after Thomas attained his lofty status, while doubting that Justice Jackson could be "genuine friends" with Oprah or Beyonce. Isn't the question in both cases whether the relationship, even if genuine, was a product of Jackson (or Thomas) being a famous, and perhaps also a politically sympatico, judge? If Oprah wanted to meet Jackson because of her status or politics, hit it off with her, and then chose to spend the rest of her life lavishing gifts on her, giving Jackson a lifestyle she otherwise couldn't hope for, wouldn't accepting that generosity be corrupt even if they had developed a "genuine" relationship? If a judge or justice wants to get rich and enjoy the lifestyle of a rich person, isn't the answer to quit the bench and try his or her luck as a capitalist? And if the alternative is to enjoy the office and status of a judge while merely subsisting as a member of the ten percent, is that really a hardship or sacrifice?

At the moment, all one can say of Justice Jackson is that she received concert tickets--tickets she ought to have turned down, in my view--and duly and promptly reported them, without unfortunate bouts of forgetfulness, obfuscation, or amendment. By contrast, Justice Thomas seems to have treated the later-acquired friendship of a politically sympathetic plutocrat as a pleasant opportunity to live a part-time plutocratic life himself. I imagine he could have forced himself to enjoy a deep "kinship and connection" with Harlan Crow that did not involve the Bohemian grove, jaunts to Bali and other luxury outings, Frederick Douglass's Bible, and so on.

I would suggest that the legalistic frame leads us to focus on the wrong things--whether a real friendship exists, whether any votes will change, even how such a relationship will be perceived. A look further back in history suggests the more accurate way to think about this relationship. Whether a friendship exists or not, this is a three-decade relationship of patronage. Justice Thomas has allowed his friend or friends to serve, Medici-like, as a patron or patrons, enabling him to live in the lifestyle that he may mistakenly think a Supreme Court justice, or just he in particular, should receive as a matter of dessert. (This was Justice Fortas's malady as well.) But this isn't quattrocento Florence, and I can't help but see that patronage relationship as fundamentally unseemly and corrupt even if they also enjoy a true and deep friendship. It's as simple as the old British phrase: It just isn't done. A justice deserves no lifestyle in particular, other than the one his or her generous salary will afford, and should retain the good plain common sense to know it. To allow oneself to become accustomed to live otherwise is surely corrupt in the small-c sense.   

The Missing Ingredient

I would suggest, in response to Gerard's post below, that if we ask why those actions succeeded with Nixon and failed with Trump, the missing ingredient is: an Establishment. A good, old-fashioned Establishment, a dominant elite that is enmeshed, to quote Henry Fairlie, in both "the centres of official power" and "the whole matrix of official and social relations within which power is exercised." It mattered that the Post, a well-connected newspaper in a well-connected city, opened the door to Watergate reporting and that the Times and other mainline papers and TV networks (remember them?) quickly followed suit. They had influence in large measure because those institutions were part of or important to the Establishment and taken seriously as such. It mattered when someone like Walter Cronkite spoke to a huge chunk of the nation at the same time. It mattered, too, that the other figures and institutions he mentions were part of that Establishment. Although in our popular histories and memories of the event we sometimes dramatize folks like Woodward and Bernstein and the young lawyers working for congressional committees as young rebels or outsiders, they were for the most part consummately inside, or worked for institutions that were taken seriously as Establishment organs: they were inside the barricades, not outside--and stayed there, sometimes pursuing power and sometimes wealth, for decades. It certainly mattered that Mark Felt was a member of the Establishment. It probably even mattered, despite his inexcusable conduct, that Nixon was a member of the Establishment. 

At best, we have two establishments now, but I doubt even that is an accurate description. In any event, once there are multiple establishments, and multiple avenues to success and notoriety outside any establishment, their power to include or exclude or enforce norms is greatly weakened if not wholly evaporated. Both Donald Trump and President Biden, in their ongoing willingness and ability to ignore, bypass, or freeze out the legacy papers, demonstrate that they no longer have the power they once did, however seriously some of their staff may take themselves. Nor does anyone take select committees or federal district court judges seriously anymore--and for good reason, often enough.

There are certainly still elites. I'm fond of observing and writing about them--their dreams, projects, and illusions, their games and their self-image, and their never-ending struggle with cognitive dissonance. And there are certainly still elite institutions; if Toward Nakba as a Legal Concept had been published and de-published by the Podunk Law Review, we would not have spilled so much ink about it. But the Establishment itself is now, for the most part, like Gertrude Stein's Oakland: there is no longer any there there. I would add that it's crucially important that Establishment mingling, in circumstances in which things can be hashed out by all hands on what passed in the Establishment for all sides, is neither possible nor especially welcome. 

An "Establishment" is also exclusionary, cozy and clubby, self-selecting and self-dealing, and so on. There are lots of reasons to oppose or question it and its structure. I certainly have, especially when it comes to what I think of as the Canadian mandarinate but also here. It's more than a little ridiculous that anyone ever treated any single figure like Cronkite as "the most trusted man in the nation." But the value of reposing trust, and having something in which to repose it, is not so absurd. Back when people thought the Internet was a good thing, they (I include myself) would talk, sometimes rhapsodically, about the democratizing power of moving from a "one-to-many" model of communication to a "many-to-many" model. (It's interesting to look back and think about how much that particular vintage of Internet still revolved around a relatively small number of both traditional and new speech institutions that were effectively Establishment publications. That was, in retrospect, really an era of "more-than-one to many" communication. It's long dead. Something like The Atlantic [est. 1857] exists largely vestigially, can be read or ignored quite safely and easily, and farms engagement like everyone else.) But a one-to-many model, and the social structure that undergirds it, has its benefits too, and any change in governing models has its costs.

Absent an Establishment, I am unsurprised that the Watergate model is ineffective. How can you be cast out of, or by, a social and political power elite that doesn't exist anymore? And I'm rather doubtful, for the same reasons, that the prosecution model will be effective either.      

A Second and, Deo Volente, Last Post on the CLR Mishegoss

I won't try to follow and comment on every twist and turn (It's up! It's down! It's up! It's...whatever. I just want to know when the April issue of the Michigan Law Review will come along.). But new information came in not long after I put up my post the other day, and there has been some further news coverage since. I found this Inside Higher Ed piece useful, as well as this Times article (though points were deducted for the appearance of the phrase "speaking [one's] truth"). The Intercept has a second piece, and although I commend it for its work, that work continues to be tilted in its sourcing and to fail to provide links that might allow a reader to judge for himself. That includes not giving a link to the board's letter, which one can find here, if you'll pardon the X-ness of the source. I also found Mike Dorf's commentary useful, although I don't see eye to eye with him on everything. (I do agree with him on a lot of bottom-line stuff.) The new reporting and commentary occasions a couple of observations--few in number if, as always, excessive in length. 

For the most part, the latest information doesn't change my general view that even if the board had some legitimate complaints, its actions were unwise. It was never, it seems to me, going to end up permanently spiking the issue or the article. It should not, therefore, have taken the article (and the website) down--even if its hand was forced by the editors. If it had or has complaints about the process, they could have been addressed after the fact, by a statement about the process followed with this article. More important, in the longer term, the board could carry out a reexamination of current policy, an assessment of whether current editors are following it, and a consideration of whether further policies need to be put into place. Some of these things might, for all I know, be a good idea. Vanishing the article and website was not. As everyone has noted, it certainly did not dampen the controversy that the board predicted the article would occasion by virtue of its subject--it super-charged it.   

The new reporting reinforces the view, which I stated in my earlier post, that rather than argue that only one "side" was being irregular (which seems to me factually incorrect, despite the spin efforts; I say more about this below) or argue over which side was being more irregular (that would be the board, I think), it's better to see a larger dynamic of multi-party irregularity at work. That dynamic incentivizes tit-for-tat behavior that ends up being detrimental to the journal and its actual, essential, quite conventional mission of publishing scholarship. (The tit-for-tat behavior includes the media coverage, of course; I don't blame the editors for taking to the press, but it should be understood as another strategic move in the game.)

The argument that there was no irregularity on the editors' part seems to be that a) the article was thoroughly edited and b) it's never the case that every editor on its overstuffed staff is involved in editing a given article. I have no reason to doubt either proposition. But the same editors make clear that they did act in an unusual fashion in various ways. One I count as minor, albeit perilous. That is that the selection process was unusual: seeking to "use the Columbia Law Review as a platform to discuss" some current event, as opposed to selecting articles from the pile while using the journal's online supplement to deal with shorter-fuse issues, is not the normal process, although it most certainly happens and I suspect it is becoming more common. As I wrote last time, I think it's not a bad thing in principle: the relative speed with which this piece went through a still-rigorous process suggests that law journals could be timelier than they are in selecting new and interesting issues. On the other hand, I don't trust editors to make those choices well (in fairness, I don't trust them to make any choices well), and I suspect that, absent better processes, it's an invitation to factionalism, politicking, and power plays on journal editorial boards.  

That wasn't the only departure (not counting the rush to publish online once the board got involved). The editors defending the piece emphasize how many people were involved in the approval and editing process, focusing one's eyes on the numerator. But they are also clear that they deliberately limited participation in at least the editing process, and just as deliberately kept the project under wraps. Thus, the normal number of editors worked on the article but, unlike with most articles, any news about it--apparently including its existence--was effectively firewalled. I say "apparently" because I'm really not sure, but it's certainly suggested by the fact that the editor in chief felt it necessary to alert her own staff to the existence and imminent publication of the article.

I also speculated in my post that there was likely another departure from normal processes--one involving editors opposed to the article. And so it seems, if the Inside Higher Ed story is accurate. That article says that one of those editors, once he or she discovered the existence and imminent publication of the piece, contacted the board, at which point we were off to the races. One wonders whether the initial secrecy was worth it; would any complaints have gotten anywhere, let alone to this extreme, if things had been aired more widely and the process had gone according to Hoyle in the first place? I can't say, but this would not be the first time that secrecy was either pointless or counter-productive. Clandestine maneuvering is, perhaps, cool more often than it's effective.

Despite disagreeing with the board's actions and having criticized it twice now, I think it makes a reasonable case in its letter that the editors' actions ran contrary to "norms of respect, trust, and collegiality." I can imagine a few reasons it might have acted in a more secretive fashion, and I am sympathetic to one of them. That is the fear of having to run a gauntlet of more or less industrialized quasi-doxing and harassment. Interestingly, that concern is not mentioned in those terms in the stories. Rather, the editors quoted make clear that their concern was that early drafts might be leaked. Of course the two can overlap considerably, and insofar as they were worried about leaks because they would result in harassment and pressure to cancel the article, I am again sympathetic. Insofar as such leaks would have ultimately originated with editors on the journal--perhaps junior editors with no role in article selection--I can only say again that journals work best when all their members act regularly, and leaking articles because you want to capsize them is irregular--and reprehensible. I should add that it might have been possible to let everyone on the journal staff know that the article had been chosen and would run, while limiting access to drafts to the team editing the article. If the editors were only concerned about the leak of drafts--and this is the only thing they cite consistently as a concern in the news coverage--this would have addressed that problem without introducing an even larger degree of unusual secrecy and exclusion to the journal's usual operations. Oddly, this option does not seem to be mentioned anywhere in the news coverage.   

Even if I find some room for sympathy when it comes to acting with more confidentiality than usual, all this behavior also suggests the possibility of a kind of built-in distrust on the part of some editors of their own colleagues in the enterprise of putting out legal scholarship. That distrust is perhaps most likely to arise when editors on either side of the dispute mistake and melodramatize their function (melodrama, in particular, being a chronic ailment among American elites), seeing themselves as engaged in something of a crusade or mission rather than the workaday enterprise of shepherding a learned disciplinary journal for a year with a reasonable measure of seriousness and continuity. (The quotes from some of the editors in the Intercept pieces have an air of taking the more melodramatic, mission-driven perspective; in fairness, one has to imagine that some of those who contacted the board might have an equally melodramatic view and offer similar quotes.) Since editors on a general-purpose law journal are going to have a variety of views about both politics and scholarship, a more mission-driven perspective, along with an inflated view of what law reviews do, will naturally not command unanimity on the staff and just as naturally will encourage an equal and opposite reaction. While I still think the board was wrong in its actions, I am not inclined to dismiss its letter's concerns about "the atmosphere on the Review" or about some students "feeling excluded and unwelcome" on their own journal.

I would be happy to dispense with the therapeutic language of that quote and just say that if a journal is caught up in internecine battles over what it's there to do, something has gone wrong. A law journal is there to serve as the site of publication of scholarship in a learned discipline. That American law journals are student-run, rightly or wrongly, is incidental to that fact; the Columbia Law Review has the same basic purpose as similar general-purpose law journals elsewhere which are faculty-run and peer-reviewed. The student editors are there not to wave banners on either side or to "step into their power." They're there to run decent, probably short-term-impact-free articles about torts and insurance and property and, I suppose, occasionally, public law. Given that this is a continuous, time-extended enterprise, there should be no internecine warfare because no one should be seeking to radically redo the journal's function for a one-year period. Whatever "power" they have is the power exercised by short-term stewards of a long-term scholarly publishing project.

None of this, again, excuses the board's actions. Nor, to be clear, does any of this suggest that the article itself should not have appeared in the journal's pages. I haven't read it (I did read the initial Harvard piece and have read some of the new article) and it's not in my field, so I can't speak to its merits. I don't think students should select articles, or at the very least not without more substantial scholarly supervision by people officially credentialed in the scholarly discipline and knowledgeable about the sub-field. But that is the current process and this article passed it. And I consider the subject matter wholly acceptable insofar as it deals with legal questions related to the status and treatment of Palestine, a perfectly valid subject, and wholly irrelevant insofar as it is currently controversial; law journals may end up publishing articles on controversial and uncontroversial subjects alike and should treat them the same, and with equal indifference to non-merits-based criticism. (On the merits, of course, the article should take whatever praise or criticism it has coming to it, again without reference to subject matter.) The author should not have had to go through this tsuris twice. 

Again With the Law Review Nonsense

Having followed the last round of controversy concerning lawyer and writer Rabea Eghbariah and his scholarship on what he is free to call "Nakba,"* I am trying to keep abreast of the latest round, which concerns the publication of a longer version of that project in the Columbia Law Review, and the publication and de-publication of that article online (along with every other article, since the entire website, when I last looked at it this morning, just reads "under maintenance").

One should take early and partisan coverage with a very large, even kosher-sized grain of salt. For instance, the main story on the subject at the moment, in The Intercept, is one-sided in its sourcing and checking, and it shows. For example, it repeats credulously an editor's statement that "I remember searching Columbia Law Review’s website in October, and there’s only one other mention of the word Palestine in the entire online existence"--possibly true, but misleading, insofar as the word has appeared some 30 times in the journal's existence (not including case names), including 15 in the last 20 years or so. Not a capital crime, to be sure; but it's the kind of thing that's easily checked, and that, perhaps deliberately, leaves readers with a mistaken impression of the journal's past and present alike. (Perhaps the problem is that the Columbia Law Review's website, like many law review websites, is just not very good. If it's any comfort, others are even worse. Just off hand, the Texas, UCLA, and California law reviews all seem to require a hacker's skills if one simply wants to find out what has been published issue by issue.) 

It is difficult to pronounce on the facts under such circumstances. And absent a proper command of the facts it's even difficult to deliver some kind of principled statement. That said, just as I disagreed with the HLR editors' decision in November, I am certainly disturbed by the action of the CLR leadership in simply eliminating the entire article, along with the website, even if it is eventually published. The notion that there is a unique "Palestinian exception" to free speech norms or academic freedom is absurd, in light of numerous other occasions on which writers, editors, publishers, and others have engaged in censorship and self-censorship on numerous hot-button subjects over the years. But I am hardly comforted by the possibility that it is one more exception. And it would be no more comforting if the exception were better seen as a general "controversial subject" exception. Whatever the full facts and sequence of events, the journal ended up in an embarrassing place. Since it is unlikely the whole piece will be pulled, the board should have left the article up even if its hand was forced.  

If I am reading the available information and some of the tea leaves correctly, I would say that the following things seem true, or quite possible, about both the Columbia and Harvard incidents: 1) The leadership of each law review deviated from the usual practices, for more or less timid reasons. Note that the "leadership" is very different in each case: the student editors in the Harvard case, and the faculty/alumni board of directors in the Columbia case. 2) So did some smaller or larger group of editors who were more directly involved in or supportive of the article, for more or less ideological reasons. 3) So too, possibly, did another small group of editors who opposed the article, again for more or less ideological reasons. 4) Once there is a departure from normal standards, further departures are encouraged across the board. If you're a student editor and distrust the leadership, you try to "preempt" it by acting irregularly, as the editors here did by rushing the article online. If you're on the board and you distrust the student editors, you use that action to justify shuttering the website altogether. If you're a student editor and distrust other editors, you strategize against them with leaks and so on. And so, as Kurt Vonnegut would say, it goes. The value of routine practices, even at law reviews, is that they help stave off the war of all against all.  

One thing I would suggest, in line with my usual institutionalist instincts, is that it would help if all these people understood that they have one job to do. It's a professional job, and it has nothing to do, in a direct sense, with effecting change or seeking or avoiding public notoriety. A law review article is just a law review article! Its function is to present scholarship. That's all it's there to do. Other than indirectly (and even this is unlikely), it won't change the world, for better or worse. But for writers and editors to do that--to provide a reasonably well-vetted forum for "collegial, co-operative inquiry that makes progress, however slowly and collectively"--is enough. The journal's editors are not there to change the world or "make a statement" either, and certainly not on a short timeline. They're there to edit and publish scholarship in the field, which again is work aplenty. They're stewards, not movers and shakers. Their job is not to seek fame or attention or display solidarity or anything else, but just to seek to publish good scholarship and avoid bad scholarship. Its editors--and editorial board--should do only that, and disregard pressures to publish or not publish other for any other reasons. The more consistently they do that, treating all else as irrelevant, the easier it will be to ignore either breathless and most likely unwarranted praise or inappropriate threats. Just vet and publish good articles--a serious and conventional, even boring, job and the only one you have.

I would add that although departures from normal processes are noteworthy, not all of them are equal. It's somewhat unusual that the CLR decided to solicit a piece on a particular topic, and somewhat unusual that it then solicited the piece from a particular author (although one understands the likely reason here), when most non-symposium articles go, at least ostensibly (leaving aside pressure to publish tenure pieces, pressure to publish particular articles from faculty members, and other abuses), through the same calendared over-the-transom process. But perhaps there should be more of that sort of thing. I don't particularly trust law review editors to do this. On the other hand, their standard selection process is not especially trustworthy either, and at least this would result in the publication of timelier pieces more often. Other departures are more questionable.

Finally, if one at least partially accepts the Intercept article on this question, it seems likely that the editorial board acted both unusually and wrongly. That's especially unfortunate for one reason: Law review editorial boards and/or faculty advisors, and law school faculty as a body more generally, should intervene more regularly and firmly in the law review process. Law reviews exist for the scholarly discipline, not the students (and not for judges, firms, or other future employers either). In my experience, many law review editors are excellent and "top" law review editors are especially sharp. But they're still definitionally unqualified to do the job of vetting scholarship in the field that they're still studying. This is evident in the choices that even top journals routinely make. It's evident in the fact that a number of them, in recent years, have adopted missions that are incidental to their actual function. It's good that some of them have introduced some measure of peer review, but that process has quickly become more of a fig leaf than a serious vetogate. The faculty of the schools that sponsor these journals are responsible for all of this; any blame attaches to the student editors only second. In the absence of a switch to the standard, everywhere else in the academy, of peer review, American law school faculty should take a more hands-on role in making sure that law reviews, at elite and non-elite schools alike, are doing their jobs properly. They should more actively oversee law reviews' selection process, demand more peer review where it is needed, and overrule editors' selection choices where appropriate, whether the students like it or not.

But they should exercise this sort of oversight at the beginning of the process, not the end, and if they are going to move to this imperfect but more professionally responsible model, they should make it a transparent and routine process, not some exceptional, struck-by-lighting thing. And the responsibility for doing so must rest with the faculty alone, since a law journal is an academic disciplinary publication. In this case, the board's intervention was clearly highly rare and irregular, clearly had as much or more to do with fear of controversy as with quality or scholarly soundness, and came long after the selection of the article had occurred. Moreover, the board apparently includes alumni, who have no business whatsoever telling a scholarly journal what to publish or not publish. The time had long since passed for the board to put up or shut up; its job now, at most, was to support and not undercut the editors, and controversy be damned.

I might add that one benefit of the kind of faculty involvement I envision is that it would thoroughly disrupt the whole process as it is currently conducted. If faculty were to be more involved in the selection process--as they should, albeit ideally they would do so primarily through peer review--the whole works would be gummed up and slowed down. Given the need to give qualitative and not resume-and-politics-scrutiny-style review to each piece, and given the other demands on faculty's time, law reviews would have to move away from the current single annual selection sweepstakes. Their involvement in review and selection would also disrupt the whole silly process of gaming offers from other journals. It might, indeed, lead to rules against multiple submissions. It might diminish many law students' desire to work on journals, as they slowly became mere copy-editors and cite-checkers, and reduce the value of law review membership as an employment credential. In time, American law reviews might actually become respectable disciplinary journals.

But none of this describes the process here, so far as I can tell. The article was selected and edited. It might have been selected in an unusual manner, and the last-minute stuff all looks irregular. It might be a good or bad article; certainly the fact of publication in a top U.S. journal is not currently a very strong indicator on that point. But it should have been published without any of the nonsense accompanying it. I hope at the least that the board appreciates that on these sorts of issues, there is no such thing as doing things quietly or confidentially, and that if its actions were intended to avoid controversy, they achieved the opposite result. 

*Incidentally, Eghbariah was educated at the University of Haifa and Tel Aviv University and worked at an Israeli human rights organization. Although the purported goal of conventional BDS movements is to aim at institutions and not persons, it does seem true that he honed his gifts at the sorts of institutions that many people cheering on his article would urge us to shun and weaken at all costs. One should pause for at least a moment to appreciate the juxtaposition.  

Some Observations About the Alleged Law Clerk Statement

The title of the post refers to this statement, allegedly issued by current federal law clerks, regarding the conflict in Gaza. As the Reuters story about it notes, the statement was published by "Balls & Strikes, a court news and commentary site sponsored by Demand Justice, a progressive legal advocacy organization."

I say alleged although Balls & Strikes, which sites like How Appealing treat as a valid source of information, says in an introduction to the statement that it confirmed the identity of the (of course) anonymous speakers. I personally don't doubt that it's true. But I also see no very good independent reason to trust that it is an accurate statement. Balls & Strikes does not exist to do reportorial journalism: most of its content consists of commentary, of which God knows we suffer no current deficit. Some of its contributors are bona fide journalists, others are not, a few I would put in the "I guess you could call that a journalist" category. Its parent organization, Demand Justice, is a standard modern partisan-politics vehicle. Its funding is dark but apparently comes from the grossly wealthy and wealth-derived Arabella Advisors, aptly described as "the hub" of a left-leaning dark money network. Demand Justice's heads come from the standard government-to-donor-patronage revolving door; they are well compensated and none of them were journalists, although one had a substantial career as a high-level press hack. It has a mission, but other than as a by-product, that mission is not honesty or accuracy; it's victory. Well and good. That's the environment we live in. But to take either Demand Justice or Balls & Strikes too seriously--to take seriously, in general, the endless, fundamentally corrupt networks that sell substitutes for either honest reporting or honest, public, and transparent discourse, to take it for granted and be immured to it, to pretend that this is the stuff that serious people can allow into their lives without suffering its effects--is to ignore Johnny Rotten's immortal question: "Ever get the feeling you've been cheated?"

So that's the first observation, a frequent one for me but only because it keeps being relevant and true: The fundamental crisis of contemporary society is an institutional crisis. That applies to Demand Justice and Balls & Strikes, which have moved into the empty space formerly occupied by the institutions whose death, decline, or drop in authority, often through their own actions, has been so damaging to our culture and politics. It applies to the judges mentioned by the clerks, whose boycott statements and other public actions treat the judiciary not as a special-purpose institution with substantial constraints on behavior and expertise, but as one more platform to say whatever one wants on the issues of the day. And it applies to the notion, not that law clerks might have something useful to say as individuals, but that if they want to say it as law clerks, they should go right ahead, and have been sorely treated if they can't. (Countless "professors' letters" demonstrate that this problem is not unique: Academics have long brandished their titles and affiliations on questions to which their jobs and knowledge contribute nothing--letters which ironically destroy the very authority they are trying to leverage.)       

A second and third observation: In the statement, the law clerks write, "Violations of these rules [barring law clerks from speaking out on matters of public interest] could result in immediate termination of our clerkships—a potentially career-ending ramification. We have thus been forced to spend the last several months as only passive observers of Israel’s assault on Gaza." There are two errors here--unsurprisingly, since the statement is geared toward rhetorical effect, not candor. The first: They were not "forced," except insofar as anyone who joins a special-purpose institution commits him- or herself voluntarily to the rules and norms of that institution. They were "forced" in the same way that a journalist is "forced" to avoid lying, a lawyer to refrain from speaking ill of her own client in public, or a chess player is "forced" not to move her pawn three spaces in a turn.

Nor is it true or useful to say that the termination of a clerkship is "potentially career-ending." This is a triumph of rhetoric, and perhaps self-perception, over candor. The candid version of that assertion would be similar to the notion that not taking a clerkship itself, because one can't follow the rules, is "potentially career-ending." Reframed in this way, the statement could have said something like, "potentially damaging to the kind of career that we, as elite lawyers with ambitions, want and think we deserve." Lots of people will hire a lawyer who was fired from a clerkship. Lots of lawyers who can't find jobs at fancy firms or, indeed, anywhere, hang out their own shingles. Lots of people with law degrees who don't find work in the law take other lines of work and thrive at them. All that happens to them, or that would happen to these anonymous clerks if they were dismissed, is that they wouldn't get to live out whatever high-end life plan they wrote out for themselves at some point: to work at Justice, or to get a judgeship, or to get a ticket to the inaugural ball or tenure at a cushy law school. (Although Bernadette Devlin might beg to differ.) To this, the proper reply is, tant pis. I dislike industrial-scale, well-funded doxing efforts, for the same reason I don't care for Red Channels. But the number of times people at elite-reproduction academies have evoked "career-ending" tropes in the past few months should encourage us to keep in mind the difference between "I can't find a job" and "I can't find a job at McKinsey." The classism of statements like "potentially career-ending" ought to be obvious. 

Finally, the law clerks are right to invoke the endless Judge Ho nonsense. Not every judicial action they cite in their statement is necessarily improper, and none of it is the same as their own obligation to avoid public political activity during their clerkships. But many of the examples they cite are illustrative of judges exhibiting the same desire the clerks feel the need to indulge: to perform, loudly and publicly, something other than their jobs. It is reflective of the idea that a judgeship (or clerkship) is as a good a place as any to engage in culture-war-mongering or political performance. They are right to criticize the judges, even if all that means is that both the judges and the clerks are wrong.

I don't think that Judge Ho and his ilk are responsible for the clerks' choice or that his actions justify it. It's better to see both as symptoms of a sickness that afflicts institutions, and thus our culture, in general: an unwillingness to live within norms and constraints. Which brings me back to my first point: The fundamental crisis of contemporary society is an institutional crisis.     

An Addendum: Language Matters

It strikes me that the last couple of posts I've written about campus speech issues--on the "it's not a protest if" assertion and on the difference between "peaceful protest and non-violent protest"--lean heavily on making a big deal about what others might consider semantic quibbles. As an academic I'm fine with making a big deal out of semantic quibbles. (In the book A Terribly Serious Adventure: Philosophy and War at Oxford, 1900-1960, Nikhil Krishnan recounts the story of a don describing the philological question on which he had been lecturing at great length: "Absolutely insoluble problem, of not the slightest importance." That sounds perfectly wonderful to me.) But I think such quibbles do matter. They clarify our thinking in such matters, especially when the subject is one with great immediacy and emotional impact. They better help us describe what it is we are arguing about when it comes time to argue about whether something is permitted or not, should be permitted or not, and so on. (Are we arguing about whether and when officials can break up "peaceful protests?" Non-violent but not truly peaceful protests? Protests that "defy the authorities?" What is the it that is the subject of our attention and our arguments about what is allowed?) They enable us to better guard against mere propaganda, the use of arguments, descriptions, tropes and memes, and pre-loaded definitions that are meant to make us think as someone else would have us think rather than think for ourselves--propaganda that is often swallowed whole, often repeated unthinkingly by journalists, and competing uses of which end up taking up more time, attention, and passion than arguments about the thing itself. And as I suggested in my last post, because there is often an imperfect boundary between free speech as a doctrinal and as a cultural matter, and because discussions and understandings of one often bleed into the other, they help us better identify which domain we're arguing in and about. This is good for clarifying discussion and prescription in both domains and, for that matter, in whatever "liminal" remainder there is. These kinds of improvements to or clarifications of general public discourse may be mere drops in a bucket. But after all, when it comes to public discourse, the depositing of individual drops in very large buckets is precisely and possibly solely what academics are here to do.   

Just by way of closing, let me offer an illustration that renders the point less abstract: If one is thinking clearly and using language clearly, one knows that a boycott is a purposeful relation to deal or associate, generally for political or moral reasons and generally in the form of a measure intended to inflict economic pain. On the other hand, a judge or law firm's insistence on selecting law clerks only from "top" law schools, however ill-advised, arrogant, and foolish it may be (and I tend to think such a policy are mistaken for these and other reasons), is not a boycott. Indeed, it bears no useful relation to it, and thus is useless for purposes of analogizing to boycotts. 

The "It's Not Protest If...." Fallacy

A trope I have seen often in the recent campus and off-campus protest discussion is that some activity or other is "not protest" if it doesn't involve some form of transgression, rule-violation, or disruption. This would seem not to be a specifically legal point; and for the most part, under a common reading of the First Amendment, it wouldn't be. But it comes up in what we might call First Amendment-ish or free-speech-adjacent public discourse, in a way that has some legal, or I guess legal-ish, significance. Surely this trope is wrong. 

A mild version of this kind of proposition comes up in Chicago philosophy professor Anton Ford's recent erroneous op-ed in the Chronicle of Higher Education about the Kalven Report. Ford writes: "Protest is essentially disruptive; if it’s not disruptive, it’s not a protest. While not all protests are equally disruptive, all aim to disrupt normal life to at least some extent. A ban on 'disruptive protest' is a ban on protest tout court."

It's easy enough, even without going to Twitter, to find examples of cruder versions of this sentiment that go past the "disruptive" point. People adopting such a position argue that protest necessarily involves rule-breaking: "It's not a protest if you have to ask permission." "If it’s 'acceptable,' it’s not a protest. If you’re not pissing people off, you’re not protesting hard enough." Demonstrations, as an ideal type, "defy the authorities." All of these are actual quotes. I can provide more exact examples from Twitter, and would do so were I not semi-debarred from using them. And although the chance of their being stupid increases substantially simply virtue of their being on Twitter and Instagram, so would the relevance of such assertions, given how many people conduct a version of public discourse and debate on these issues there. (The truth is that if one wants to research and discuss these kinds of issues, one must look at social media platforms--even, Lord help us, if one just wants to know what academics, and not normal people, think, given the awful habits of contemporary academics. So I do look. But I still find it better to avoid citing those platforms and to avoid going to those poisoned wells too often. I find myself nauseated by even short exposure, and other than for research purposes I find that the benefits of staying away far outweigh whatever I lose in terms of awareness of the anecdotal outrage of the day. Your mileage, I will say politely but insincerely, may vary.) 

On social media, especially, assertions and arguments like this do bleed into free speech law--or perhaps "'free speech' 'law,'" in the sense that there is a difference between a thing A and the object A-prime, or between Hancock Park and "Hancock Park adjacent." Protest, this line of thinking runs, is a fundamental, long-recognized aspect of free speech. And protest is--on this view--definitionally transgressive, disobedient, rule-or law-breaking, disruptive. It follows that it must violate the First Amendment to break up or make arrests at an encampment, march, demonstration, etc., even if the protesters were, say, violating clearly established rules or laws, engaging in obvious trespass or worse, and so on. Versions of this argument have been presented as Hail-Mary attempts by individual January 6 rioters. And similar arguments have been made, and taken seriously, in public discussion of the campus protests and the responses of universities and local officials. People making these arguments have included professors, although not generally law professors.   

There is something to the argument that protest is generally disruptive, I think. Even there, I doubt it's right to say protest is necessarily disruptive. Thousands of people may seek a permit to gather in a large park or public gathering place that has long been a prominent site for such assemblies, in order to visibly protest something like American involvement in a war. While they are there, say for a pre-arranged span of twelve hours, clearly the space cannot be used by others, and people strolling nearby may be disturbed or inconvenienced. But it's all been planned in advance, the authorities have had time to manage it and deal with contingencies such as waste disposal and security, and the crowd leaves when it's all done. That's a protest, surely. But is it really "disruptive?" Nominally, yes, perhaps; but in the sense in which some of the writers above or elsewhere mean it? I doubt it. It's certainly not transgressive.

One could come up with other examples. Protests and demonstrations happen all the time by pre-arrangement, often involving mass gatherings (obviously so for demonstrations, although an individual can protest, a la Hyde Park) and perhaps some level of planned "disruption." They are to actual disruption a little like what a scheduled work of performance art in a gallery is to real life. The organizers may even work closely and collegially with the authorities. Of course we may have concerns about officials using their permitting or licensing power arbitrarily or invidiously. In such a case there may be good reason to march without legal permission and without regard to legal proscriptions. But in theory, if that system were acting justly, people would have the right to seek an advance permit to make use of a public forum for purposes of peaceable, lawful assembly in order to protest. Is that "not a protest?"

Indeed, in a just society--a just actual society, not a "just society" in a just-this-side-short-of-Heaven hypothetical sense, in which all issues on which people disagree have been settled--we would likely still have assemblies, protests, and the like. And the ability to protest would be equally available to all, conducted under a fair and reasonable permitting system, and conducted thoughtfully with regard to the interests of others. They would be an effective exercise of voice for purposes of mass expression, and they might be somewhat "disruptive"--but, although they would still unquestionably be protests, they would not involve transgression or rule-violation. It's a point actually worth considering, not just by way of disagreement with the "it's not a protest if" trope, but because it suggests that protests, demonstrations, and assemblies have a function in any liberal society, including a fairly just, and justly administered, one--and that this function is not limited to those gatherings that "defy the authorities."

In short, the whole trope, common though it may be, is wrong. At best, it involves either a vacuously large definition of "disruption," or is simply a misdescription, in which "protest" is treated, wrongly, as a synonym for "civil disobedience." At worst, to the extent it is common or frequently voiced, it encourages participants and onlookers (including professorial onlookers) to misunderstand free speech as a legal doctrinal matter.

Incidentally, for a careful discussion of these issues, check out this paper on demonstrations by Jeremy Waldron. He offers a definition of demonstrations on page 38 that includes the line above about defying the authorities. I don't agree with his definition, obviously, and would pick nits with other aspects of the paper. But it's very good.   

Is Boycotting a University the Best Means of Criticizing it? Is it Even a Good One?

The federal district court judge who served as the speaker at my law school's graduation ceremony yesterday--congratulations to our newest alumni!--gave a speech that was in turns funny and moving. In the latter category, he shared a couple of incidents from his life, including serving as a bone marrow donor, to remind our graduates to look for those moments when your gut is telling you to do something and seize them as opportunities to do the right thing. I appreciated his sharing the recollection and admired him for his donation. But I don't recall him issuing a press release about his donation; his goal at that moment, I'm sure, was to help someone and not to self-aggrandize. That is a good quality in a judge, since for the most part judges, like pets and children, are at their best when they're fairly quiet and avoid calling attention to themselves. It's a classic judicial trait, partly as a matter of disposition and partly as a matter of office and ethics. 

Then there is Judge James Ho, who once again is co-signing and, of course, trumpeting a boycott announcement. This one says that he and other co-signers "will not hire anyone who joins the Columbia University community—whether as undergraduates or law students—beginning with the entering class of 2024." The boycott shares several things in common with the current demands of student protesters. One is the letter's overwrought prose, and its self-seriousness--which always risks becoming a form of self-regard. Another is its sweeping nature, which embraces the guilty and innocent alike. A third, perhaps, is its assumption that there are no innocents, because any students who choose to become members of that institution are ipso facto guilty. Another is a ready willingness to attribute motives to others. There is also the fact that it makes demands vague enough that there is no clear gauge for their satisfaction, so that one can continue one's boycott for as long as one wishes and end it just as easily (although probably much more quietly). 

Yet another is an imperfect regard for accuracy. As Josh Blackman notes at the Volokh Conspiracy, Justice William Brennan did not "refuse[ ] to hire law clerks from Harvard Law School because he disliked criticisms of the Supreme Court by some of its faculty." Rather, as Blackman helpfully points out, quoting Owen Fiss, Brennan "decided to end his practice of hiring his clerks, as a matter of course, from Harvard." The key language is "as a matter of course." Brennan, like some justices before him, had previously effectively contracted out the job of clerk selection to a professor at a single school, in this case Paul Freund at Harvard. After he "became somewhat disillusioned with his alma mater," he changed his practice. He no longer selected Harvard graduates "as a matter of course," but began looking at clerks from other schools, while still also hiring Harvard graduates, although at a slower clip. (The "somewhat disillusioned" quote is from Stephen Wermiel's article on Brennan and his law clerks. Wermiel agrees with Fiss's explanation that faculty reactions were at the root of Brennan's disillusionment. Illustrating that recollections like Fiss's are not history and should not be taken as the whole story, however, Wermiel notes other bases for dissatisfaction on Brennan's part, and adds that Brennan had faced pressure for some time not to select his clerks from one school only.) Judge Ho is still a young man, and so we might excuse a little inaccuracy here and there just as we excuse it for feckless young student protesters: by saying "they're just kids" or "it's just a little exaggeration for effect." I prefer to think that people of legal age who come from fancy schools are responsible for their own words and actions, and that if you're going to close a statement with a flourish, you'd better stick the landing.     

Finally, there is the simple fact of seeing the boycotts of institutions, and specifically the application of that boycott not to institutional leaders or the institution qua institution, but to its members--including, say, 18-year-olds rendered guilty by choosing to attend that institution--as a useful approach. I can't say I agree. For one thing, at least in this context, it's rather elitist in its treatment of elite schools. I not concerned, for present purposes, about some thoracic surgeon's kid who ends up choosing among Columbia, Stanford, and Penn. But I don't begrudge the decision to go to a school like Columbia to a smart kid who got into only one such place, or a smart kid with no means who only got into one that would offer enough scholarship money to make it viable to go there. And it gives short shrift to the other reasons people choose particular schools, even fancy-pants ones, beyond their general elite status. It doesn't really make much difference what law school you go to: a smart, hard-working young man or woman can fail to learn the Rule Against Perpetuities all across this great country of ours. But it matters for other sectors of university education. It does matter when a particular program is only offered at some schools (maybe the student wants to study at a school where freshmen still have a Great Books requirement!), where there are qualitative differences in approach or focus between schools in particular departments, and so on.

But these are secondary concerns. I simply doubt that boycotting a school is the best means of either criticizing it or reforming it, and a good deal of the time I doubt whether it's even a particularly good one. People who care--actually care--about institutions would much rather see them meaningfully strengthened and steered back onto the right path than withered and gone, or given over to those who would remake them in ways that would further detract from the core functions of that institution. That requires involvement, not the back of the hand. And that's especially true for students. Their exercise of voice will be much more powerful coming from within that institution, and their use of exit will be of limited importance. And, however much the letter may be addressed to the president of Columbia, it's the prospective students the boycott is addressed to in its effects. Even now, some students are choosing to attend Columbia not because of, but despite, the tents or the cops or any other distractions, and for sound academic reasons. I would just as soon not put them on some list by virtue of guilt by association, or treat their choice as necessarily tainted because of it.

Ultimately, the letter seems to me to be much closer in spirit to those student protesters who do seem to reject the idea that institutions, and nations, are varied and complex, and that individual decisions to participate in them are varied and complex, and instead prefer to slather the concept of moral complicity on everything with the gusto of a starving man with a jar of peanut butter.

(What justification those students--or faculty--can claim for continuing to be associated with these schools is another matter. Given some of the views that have been enthusiastically expressed on the topic of moral complicity, and given that the protests merely called attention to features that they claim are longstanding and persistent, the choice to attend or teach at such an institution rather than withdraw or resign from it is much more morally dubious for individuals holding these views. One wonders at the fact that there has not been a much larger faculty exodus from Columbia and other similarly “complicit” universities, or that students at elite universities who hold such views do not balk at attending them.) 

Although I agree with Josh that the letter writers close their announcement with an inaccuracy, I can't say I agree particularly with him that it was "fitting" that the announcement was issued on Holocaust Remembrance Day. Since there is no single Jewish view on this (or just about any other) question, I don't begrudge him a different view. As a Jew, though, I will note that although anti-semitism is mentioned in the letter, twice, on the whole it barely figures in it. I don't question the letter writers' sincerity. But given the passel of other issues it raises, and the general sense that it's just another routine salvo in the culture wars, I can't help but feel that--despite the fact that it happened to be issued on Holocaust Remembrance Day--Jews occupy a wholly familiar role in the letter: an incidental and convenient one, in which we are mere objects and not subjects. Thanks all the same, but I'll pass.     

"Peaceful Protest" and "Non-Violent Protest"

Campus protest season is winding down, unevenly, unprettily, and sometimes unlawfully, and for a variety of reasons, not least the academic calendar, which is the eternal annual balm for campus unrest. My views on the propriety of the conduct of both protesters (and counter-protesters) and universities are determined and bounded by my sense of  the First Amendment's demands, and also by my sense of the role of universities and the norms that should govern in that institutional space. But I would like to make one point.  

The point may feel somewhat semantic, but it clearly feeds into the understandings of both the participants and the wider public. The phrase du jour was "peaceful protests." That's a pretty imperfect phrase, or at least one that requires further specification. It seems to me to elide the difference between "peaceful protest" and "non-violent protest." At least based on what I have read, there is an excellent argument that the vast majority of protests and protesters were engaged in non-violent protest. Of course one can engage, if one wishes, in arguments about what constitutes "violent" protest, with potential pushback from two sides. One is the conventional contemporary argument that violence to property can never be considered violent as such. As a strictly intuitive matter--as a question of how I would fit some example into my perhaps eccentric mental schema--I doubt I'd think of spraying graffiti on a building as "violent" simply because it constituted damage to property. I would think of shattering the windows of a building or breaking down its doors for purposes of breaking into and occupying it as "violent," even if no people are harmed. I would think of it in those terms, not to put too fine a point on it, because it is violent, and the argument to the contrary is bosh. From the other side comes the argument that any protest, or any slogan, that is emotionally or psychically harmful to some audience is violent. I am equally unpersuaded by this line of argument. Whether "from the river to the sea" is a just slogan or a stupid one, it is not "violence."  

But there's a difference between "non-violent" and "peaceful," I think. And the statement that many protests were non-violent but not necessarily peaceful seems like an accurate summation--and one that's more accurate than simply using the blanket description "peaceful protests." Of course many protests were both peaceful and non-violent. But if, as was sometimes the case, protests were sufficiently loud and disruptive; if students, faculty, or staff were prevented from going whither they would on campus, sometimes because a space was occupied and sometimes by a degree of mobbing; or, no doubt, if other conditions were met--then I think it would be more accurate to call those protests non-violent than to call them peaceful. (Likewise, many counter-protesters were non-violent but not peaceful. I would add that I began writing this post a few days ago, before recent counter-protester action that was clearly and disturbingly violent.)

Is it a side issue? Yes and no. The First Amendment protects protest in many ways, just as it generally protects many other forms of expression. And it generally draws the line at violent activity, not just for protest but for other forms of expressive conduct. But there is no absolutely protected category of "peaceful protest," not least because "peaceful expression," whether in general or with respect to protest in particular, is not in itself an absolutely protected category. It is always potentially subject to any number of limitations. Not least among them is the difference between public and private property, but even on public property that has been since "time out of mind" used for protests and other forms of assembly, there are, among other things, permissible time, place, and manner restrictions. One may argue quite reasonably that the permissible spaces for that expression have shrunk, and that the courts should take a different and more expansive and protective approach to speech in those spaces. But it is beyond question that permissible limitations existed even when the courts were at their high-water mark in lauding and protecting protest, and would even if the legal landscape changed.

In that sense, what to call the campus protests is, legally speaking, close to irrelevant, although both the protesters and others seemed to place a great premium on the allegedly sacrosanct legal status of "peaceful protest." But a protest has always been, and certainly is these days, not just a thing in itself, but an object for media consumption, in which it is not just described, but branded, marketed, and propagandized from all directions. To convey and sell a mental picture of utter placidity and harmlessness, it is more useful to call a protest "peaceful" than merely, and somewhat pregnantly, "non-violent." The protesters, and their advocates (among whom I count myself as to some but not all of their conduct), surely appreciated this. More accurately, probably, some of them appreciated the strategic value of the right label and thus pushed "peaceful protest," and many others simply absorbed it and took it for granted. But it's an imperfect label and we should question it, regardless of one's conclusions about the legality or morality of particular protests.

One other point. I try to avoid the Other Place, but someone sent me a tweet by Scott Shapiro, a legal theorist at Yale, who wrote, "Now that Hamilton Hall has been cleared, Columbia students can go to class and learn about the glories of liberalism." Far be it from me to argue with a legal philosopher, or just about anyone else, about the nature of liberalism and its merits and demerits. And quips on Twitter, along with anything else written there, should not be paid undue attention. But it seems to me this quip nicely achieves two layers of irony. The first is what I assume is the obvious and intended one. The second-layer irony, however, is that whatever else one might say about the manner of retaking Hamilton Hall from those who occupied it, the general fact of retaking a university building that has been forcefully occupied by students, and doing so through the threat or use of state force, is entirely consistent with liberalism. Perhaps the second layer was intended too, even if its audience does not seem to have appreciated it that way. Of course one is free, in our liberal society, to make up one's own mind about whether this counts for or against liberalism.     

Fish on the University: It's All Academic

I haven't posted much in the past couple of weeks about the events on campus across the country, partly because of exams and other duties that actually relate to the core of a university's functioning, and partly because I wanted the time to work through my ambivalence about David Pozen's interesting Balkinization post. I thought it simultaneously had real value as a discussion of failures to follow university procedures, and ran the risk of doing the same thing I see in too much recent contemporary constitutional scholarship: the invocation of "norms" and "settlements" in a way that potentially loads up the content of those words in an imperial and conversation-stopping manner, when there is actually fair debate to be had about what the norms are, how stable the settlements are and when they may be reexamined, and what lessons we might take from the paradigm cases that gave rise to those always-contestable "norms" and "settlements." (The lesson to be taken from the vandalism, anti-intellectualism, and American-style milquetoast hostage-taking that was the 1968 Columbia occupation, for instance, including questions about its morality, efficacy, message discipline, and larger political consequences, may differ in the eye of various beholders. On 1968 as a wider global or at least Western event--in which the American version, predictably, was both closer to cosplay and further away from a meaningful connection to workers or the working class--I recommend Richard Viner's fine book 1968: Radical Protest and its Enemies.)

Of course a good deal has happened since then. I should say that the letter issued by multiple Columbia law faculty members is quite good. God bless lawyers for focusing on the key question of process, and skipping the standard sentences that genuflect to one or another standard sentiment in a way that inevitably leaves someone or everyone dissatisfied. And I am still thinking about Super's post.

In the meantime, I commend to readers a late entrant to the discussion: Stanley Fish's post A Note to University Administrators, which appears in the excellent and pleasingly eccentric Catholic journal The Lamp. Readers of Fish's other work in this area will not be surprised either by his views or by the élan with which he states them. The core of his post is that the university is a university and not something else; its job is to do its job; that job does not include "play[ing] a role on the world's stage"; and while student or faculty political speech may occur on campus in particular spots and at particular times, just as that sort of general speech might happen in lots of other places, the duty of university administrators is to ensure that the main business of the university can take place--and to act, forcefully if necessary, when that business is disturbed. 

I do not agree with 100 percent of Fish's post. He could have said more about the genuine enforcement difficulties involved when administrators face large numbers with few resources (a problem that would be eased if they had acted earlier and more consistently on such matters). In saying--correctly--that speech and conduct that "threatens to undermine the main business of the enterprise...must be curbed and even silenced," he could have added a few words about consistency and procedural regularity. He could have noted the difference, for purposes of university autonomy, between university administrators inviting in the police and state or local politicians sending them in. Finally, I don't think Tinker v. Des Moines was the best case to cite for his purposes. So I hover at only around 80 to 90 percent agreement. But Fish is basically right, certainly right on the fundamentals, and much better and more sensible than many other recent interventions.

The silliest of those, I think. at least outside social media, is this (paywalled) piece in the Chronicle of Higher Education, the gist of which is that the only reason students are currently forced to shout so loud is that the universities have failed to truly listen to them. The piece, by Chicago historian Gabriel Winant, offers some perfectly sensible statements about the consumer orientation of the modern university, which has indeed been a terrible mistake. And I think it uses "listen" accurately; often enough, when someone writes "failed to listen" they actually mean "failed to agree or capitulate." But Winant's piece seems to walk a fine and perhaps strategic line between suggesting that the current protests highlight the failure of current "democratic norms [in] the academic community," and arguing that whatever form the university currently takes, it ought to be a democratic institution. He writes: "Substantive democracy on campus — in which students, faculty members, and staff are meaningful participants in the governance of the university — is the only way to realize the values of academic freedom and freedom of speech that are so widely touted by university leaders and the donors and politicians whom they serve." His view that the university is or ought to be a democracy is connected to a larger complaint about the "undemocratic structures of American social institutions," which I take to include more than just universities.

All this is quite wrong. (I set aside the fact that when someone appends a word like "substantive" to a word like "democracy," you should get ready to be flim-flammed.) The university is not a democracy. It should not be a democracy. If "American social institutions" are currently in bad shape and losing public trust, it is not because they are undemocratic; if anything, the converse is closer to true: the more these institutions try to satisfy everyone's needs and drown their distinctiveness in democratic waters, the less they satisfy anyone. There is room to argue about the proper structure of university governance. But "meaningful, democratic representation for students, faculty, and staff on university boards" is not "the only institutional mechanism that can secure" what the author calls "the university’s role as a place for the free development of critical thought and democratic citizenship." To the contrary. Fish has it right: the way universities contribute to "democratic citizenship" is not by reproducing democracy (or, I guess, "substantive democracy," a phrase whose meaning, again, may end up including all sorts of questionable moves), but by doing their job of "instruction and the advancement of knowledge in the humanities, social sciences, physical sciences and computer sciences." As anyone who has fairly received a high or low grade, fairly been granted or denied tenure, or been praised for advancing knowledge or criticized for erroneous or repetitive scholarship can tell you, these are not democratic activities. 

Here are some passages from Fish's post, all of which is worth reading, although I doubt it will be pleasing to those who favor virtually untrammeled student protest, and I am sure that Fish's response to those who see this moment as requiring a purge of instructors or courses of instruction on a non-disciplinary basis would be equally displeasing to them. (I don't think he would have much sympathy, for instance, for a doctoral student complaining about the "platforming" of an academic lecture on theology and asserting that "the nuances and complexities of my religion are not open for reinterpretation by those who do not share in its lineage or practice." I think he would say, "As an academic matter, and if the academic speaker is academically qualified, you bet your ass they are.")   

University administrators faced with sit-ins, tent encampments, and other forms of protest continue to betray an inability to understand their situations. A prominent (and even poignant) case in point is Columbia’s president, Minouche Shafik, who began a recent statement by acknowledging the obvious: “There is a terrible conflict raging in the Middle East with devastating consequences.” She then notes that many on her campus “are experiencing deep moral distress and want Columbia to help alleviate this by taking action.” Her next sentence falls off the cliff. “We should be having serious conversations about how Columbia can contribute.”

No, no, no! What she should have said is this: “Intervening in a political crisis is not within our job description; it’s not something we are either equipped to do or assigned to do. Our job is to introduce students to the materials and histories of various academic disciplines and to provide those same students with the analytical skills that will enable them to proceed on their own after a course is over.” That’s it, nothing else. Any “contribution” we as members of the academy might make to the solving of society’s problems would be indirect....

If this account of what institutions of higher learning appropriately do—they don’t do everything, they do the academic thing—is accepted, a conclusion (no doubt counterintuitive to many) immediately follows: colleges and universities have no obligation to foster or even allow political protests on campus. Indeed, it is quite the reverse, for if the overriding and defining imperative is to ensure the flourishing of the academic enterprise—classes being taught, research being conducted, procedures being followed—administrators have a positive duty to remove any impediments to that flourishing, including tent encampments, sit-ins, obstacles to exits and entries, building occupations, forcing the cancellation of classes and a host of other things now occurring....

When you are granted a platform [in the institutional context of the university], you are expected to produce speech that contributes in a significant way to the practice that has accepted you as a member. This is not free speech, but speech constrained by the norms and protocols that define and monitor the profession. As with any other practice, it is always possible, and indeed mandatory, to say of something offered, “That’s not the kind of thing we do around here.” In the academy political protest is not the kind of thing we do around here; it is not part of the core mission, although universities can decide to permit a bit of it in designated places on the model of a Hyde Park corner. But once the permitted political speech gets out of hand and threatens to undermine the main business of the enterprise—instructing students and advancing the state of knowledge—it must be curbed and even silenced....

Colleges and universities are not in the free speech business or the democracy business. They are in the education business; and while institutions of higher education may decide to allow a certain amount of political speech on their campuses, they are not required to do so. They are, however, required to silence that same speech once it enters the stage of interference and disruption.

“Required” is a strong word and it hearkens back to my earlier phrase “positive duty.” Some administrators see themselves as torn between the obligation to support free speech and the obligation to maintain a secure and safe campus. But they can dispense with their moral dilemmas (a hard thing for academics to do) and the hand-wringing that accompanies them once they remember that they were hired to administer an enterprise, not to be constitutional watchdogs or guardians of democracy. Removing obstacles to the functioning of the academic process (even by calling in the police) is not something they should apologize for, but something that follows from the office they hold....President Shafik is said to be in danger of losing her job. If that happens, it will be because she doesn’t know what it is.

 

USC's (Bad) Choice

David Schraub of Lewis & Clark has a useful new article titled, They Managed a Protest: Prohibitory, Ethical, and Prudential Policing of Campus Speech. I haven't fully digested it so I have no general commentary, agreement, or disagreement. His focus, or exemplar, is campus protests, especially in "fast-moving" contexts. But he places these in the general realm of the problem of how we "facilitate public debate" on campus. And one point he makes, quite fairly, is that we might spare a thought for the administrators, especially lower-level staffers, who are faced with dealing with these issues on the ground and in the moment. Amen to that, but of course some of the dilemmas he discusses run up and down the administrative chain. 

That is the most charitable light in which I might place USC's decision (announced by the provost, Andrew Guzman, who is also a professor at USC's Gould School of Law) to cancel the speech of its valedictorian at commencement. The valedictorian is described in the Times article I've linked to as having written "social media posts supporting Palestinians," at least one of which a campus group has objected to for the writer's now-standard equation of Zionism to settler colonialism etc. The objecting group, also adopting the tedious language of our times, complains that the university "chose to platform" a student it believes will exacerbate anti-Semitism on campus. The provost's announcement is replete with equally standard language about safety.

I think the university's decision was wrong. If, as its own letter suggests, having the valedictorian speak at commencement is standard--a "tradition," in the letter's terms--and if the selection of the valedictorian proceeded according to its governing processes, as it appears to have, then that tradition should not give way to threats. It's also not clear what those threats are. The Times story reports none, but is not well-reported. The USC Daily Trojan does a better reporting job than that, quoting an official saying that "the University received threats relating to Tabassum via email, phone calls and letters" but declining to provide further details. Unless it has well-grounded fears for her physical safety, it should move forward with the usual order of speeches. The complaint about "platforming" the speaker appears to fall in line with the usual recent complaints about platforming, which is to say it conflates content-neutral facilitation with promotion and agreement. The valedictorian is apparently chosen on the basis of both academic achievement and "service and leadership." Those criteria do not include "social media history" and the service and leadership for which the speaker was cited are commendable, not objectionable. I have no idea what she would have spoken about, but it's not relevant and it's not the reason she was given a "platform," any more than a public school is advancing religion when it selects a valedictorian speaker who has the highest class rank and also turns out to be vocally religious. "Platform," especially in its pernicious verb form, is one of the many recent locutions we could use a long, healthy break from.

But take the mildly charitable view for a second. Graduation ceremonies are indeed an occasion for community, family, and fundraising celebration. Universities want them to be pleasant. One no more wants or expects the Days of Rage at a commencement than one does a portable loudspeaker at a dinner party. If the university is aware of genuine and serious safety concerns, it faces potentially great challenges in assuring that safety--a job which will be done by staff and security officers on the ground. If it faces a threat of more-than-mild protest--say, something that graduates from the usual turned backs or slogans on mortarboards to an attempt wrongly to shout down the speaker, who has precedence according to the speech norms of the occasion and is entitled to be heard--then it will have to use its resources, or those of the police, to ensure the speaker can be heard and that those causing the disturbance either simmer down or are removed (and hopefully, depending on their actual conduct in these still-hypothetical circumstances, arrested or subjected to discipline). That's not the kind of thing universities want to put photos of in their alumni newsletter. As Schraub notes in his article, it will face the blame one way or the other: for failing to protect the speaker or for being too hard on the protesters. 

One can thus sympathize with the administrators and those on the ground. One can assume its choice was not based on the identity or views of the speaker but on the "threats" or reactions it anticipated. But the university's choice was still wrong--and dangerous. The university's announcement says that its decision "has nothing to do with freedom of speech. There is no free-speech entitlement to speak at a commencement. The issue here is how best to maintain campus security and safety, period." Of course the latter sentence is important. But much depends on what the actual threat is. Again, words like "security" and "safety" can encompass all manner of things, from genuine security and safety to the weaker senses in which these words are now often used, and to something weaker still, like disruption or discomfort or bad optics. I'm doing my best to take seriously the university's statement that it faced real threats to safety without simply swallowing it whole. One may occasionally doubt the accuracy of non-detailed official statements, and the less detail USC gives, the less one ought to credit it. But if the threat to safety were real and grave, such that no amount of security would suffice, I think USC's duty then would be to "choose" to give the speaker a "platform," finding some safer way for her to deliver her intended address before friends and grandees and then broadcasting it.

And the first point is a distraction. No, there is no First Amendment right to speak at a commencement. Yes, it does indeed have a great deal to do with freedom of speech, or, perhaps more accurately, with the system of speech on campus and, in a broader sense, with freedom of speech. That's so not simply because a student wishes to speak, but because this is the speech the university customarily provides and facilitates on these occasions, and it is giving way, altering its "tradition," in the face of identity- or speaker- or viewpoint-based opposition. It has an obligation not to do so. It should prefer a lousy, unpleasant graduation with the intended speech to a graduation ceremony that goes swimmingly, pleasantly, and pusillanimously. That's so especially because it is almost certainly going to get protests and disruptions no matter which path it takes. So it might as well take the right one.   
  

This is Not a One-Free-Bite Case

I will add only one point to the conversation about the Chemerinsky fracas. Dean Chemerinsky's statement about the incident says:

The dinners will go forward on Wednesday and Thursday. I hope that there will be no disruptions; my home is not a forum for free speech. But we will have security present. Any student who disrupts will be reported to student conduct and a violation of the student conduct code is reported to the Bar.

This does not appear to rule out taking academic disciplinary measures against the student or students who participated in Tuesday's disruption. But it doesn't exactly rule them in either. It reads more as if Chemerinsky is warning students about what will happen going forward. I hope I'm reading it wrong, and that Berkeley will seek to impose disciplinary measures with respect to this incident.

I can well imagine cases where the rules are insufficiently clear, or the activists' actions insufficiently deliberate, or some other set of facts exists that counsels an added degree of patience and charity. This is not one of them. Unless the university and/or law school's rules are exceptionally laissez-faire, it is obvious that this constituted a violation, and it is equally obvious from the students' writings and less-than-delightful illustrations before the fact that they intended to disrupt the dinners hosted at the home of "Zionist Chem." This is not a "one free bite at the apple" case. There is no reasonable question that the students knew this would violate any basic conduct rules--even at Berkeley! There's no reasonable question that they had fair warning. Nor is there any question they did not stumble into the violation but walked deliberately into it.  

I could imagine Dean Chemerinsky wanting, as a matter of personal inclination or prudence, to let this one slide. He might want to do so not because it was not a clear violation, but because Prof. Fisk's actions might be treated as muddying the waters or giving rise to counter-complaints; or because he fears the blowback and thinks (as seems so far to have been the case) that a warning would be more effective; or out of a simple dislike for imposing discipline, especially on graduating students.* Certainly doing so would invite disruption and protest at the graduation ceremony itself, although I assume that's going to happen no matter what.

That would be a mistake. Free speech, and especially free speech on campus (although this event was not on campus), depends on a system that is, to paraphrase and correct Justice Brennan's words, "inhibited, robust, and wide-open." Free speech rules seek to guarantee the widest scope for expression within spaces that, at least in the physical realm, are shared and resource-constrained, and within institutions that, even when public, are often dedicated to particular speech-benefiting purposes. As such, some basic rules to govern the use of those shared spaces are required. Not every speech event is a New England town hall meeting or a gathering in a crowded theater. Roberts' Rules of Order don't always apply. But in many spaces, basic rules of conduct, volume, speakers' precedence, and so on are necessary for a system of free speech to function, thrive, and endure. Those rules are meaningless without both some degree of consensus and a willingness to actually enforce them.

This is one such case. Chemerinsky's statement didn't rule out retrospective action, and this is a case in which it's obviously called for and, indeed, necessary.

I'm not baying for anyone's head. Disciplinary proceedings should and will include due process. As such, I don't predict the outcome of such a process or suggest what would constitute a fair penalty if a violation were to be found.* All I'm saying is that for the sake of robust, wide-open speech, particularly within the purpose-driven campus context, disciplinary rules should be applied to Tuesday's actions, not set aside until the next occurrence. 

* I think these portions of the text are consistent with what Steve writes above. Especially given that pursuing disciplinary measures would invite more attention to the actions of his colleague and spouse, I could imagine Chemerinsky wanting to put the matter behind him. And I could imagine any nice person thinking that the fact that the student is graduating matters, or any strategic person thinking that penalizing a graduating student would give rise to bad publicity. I sympathize with the former considerations but think that the reasons and duty to press ahead disciplinarily outweigh those considerations. I think the latter consideration should be treated as irrelevant. It might of course affect the penalty, counseling lenience--or not. In this chess game, student activists might calculate that they can move forward with impunity, whatever the action, because universities won't do anything about it. Perhaps a recalculation is required. But penalties should be consistent with due process and fairness, and I am not counseling any particular penalty, whether harsh or lenient. That said, it is hardly respectful to these students, to their adulthood, agency, and commitment, to suggest that any disciplinary action should be utterly withheld as a matter of course because they're about to graduate and might suffer serious consequences to their ability to practice law. Depending on the nature of the action and the nature of the penalty, that's the point of disciplinary actions in the professional-school context.         

DeGirolami on Traditionalism

A nice op-ed from my friend Marc DeGirolami on traditionalism, in the New York Times, which I was happy to see gave him enough space to decently lay out his view. Although the topic is not especially timely (I mean that in a good way, on the whole! "Timeliness" is an overrated and distorting quality.), he finds a nice hook by contrasting it with recent statements by Stephen Breyer and Kevin Newsom.

Normally I would say "Don't read the comments," which is the prevailing rule for sensible people everywhere. (And one that adds a sizeable question mark to claims about the democratizing discursive value of social media.) In this case I violated the rule and found it instructive. Of course there is a good deal of inanity. But much of that lay inanity reproduces exactly what ostensibly more educated and elite people who are actually in the law game have been doing for the last several years, in the time-honored tradition of fighting the last war: They give lip service to "traditionalism" or "history and tradition" up front, suggest they will be talking about it in what follows, and then proceed to criticize originalism in great detail. (Although Marc was early to this iteration of legal traditionalism, some scholars have actually started writing interesting articles about traditionalism that are actually about traditionalism, viz. recent pieces by Sherif Girgis, Felipe Jiménez, and Larry Solum. These are the exceptions.) Or they make what they think are the killer arguments against traditionalism--pointing to bad past practices or traditions--without acknowledging that most of them were addressed firmly and rightly by the Civil War Amendments and other constitutional amendments, which are an appropriate way to entrench the societal recognition that some traditions must change; others were killed in the way that bad traditions are, by the accretion of time and practice, a possibility that Mark recognizes more than once in the piece itself; and others may be constitutional but need not be enacted or practiced. (The preponderance of the remaining comments simply adopt the expedient of talking about something else.) 

You need not take any of this as an endorsement of traditionalism as a constitutional practice. I do think however that whether it is a full-on, name-in-neon-lights modality or not, accounting for and invoking tradition is not new (many of our most celebrated First Amendment decisions, for example, engage at least for rhetorical purposes in the invocation and celebration of real or fictive traditions), is probably inevitable, and happens even in the most lively of living traditionalist opinions. And I think Marc has done a valuable job in naming (or renaming) the practice. But I reserve further judgment. What I would like to see, even in a short-ish op-ed and certainly in his book, where I'm sure it will appear, is a deeper dive into all sorts of questions, such as:

• Is it relevant if a tradition is "invented"--that is, it purports to trace back to the misty past but is in fact of far more modern vintage?
• Is traditionalism as a legal practice one that yields judicially manageable standards, assuming these to be desirable?
• Is there anything to be said from a constitutional comparativist perspective about traditionalism as a constitutional practice? If we are mostly alone in using it, why is that, beyond its obvious current political uses? Is it a cultural matter, a legal-cultural matter, a function of stronger and more cohesive national cultures and practices in those nations, or a function of the relative youth of most other constitutions, which effectively start from a baseline of the state of "tradition" in those countries at the time of entrenchment of those constitutions, even if they do not speak in those terms and won't for another few decades?
• How much is traditionalism as a legal practice merely about legal "traditions?" How much should it be about cultural traditions more generally? To the extent the latter are involved, how good or bad are judges at identifying those? To the extent they're not, does it render traditionalism as a legal practice somewhat desiccated, and miss much of what really matters in thinking about constitutional law's connection to our values and practices?
• More generally, is traditionalism a legal and/or judicial skill? If so, what does it involve? How can it be cultivated or taught? Is it yet another mode of interpretation, like originalism or reliance on theories of justice, that takes judges away from their actual, common-law-like, area of greatest competence, and thus questionable, even if "true," as a judicial practice? Or is it closer to their competence because a sense of tradition is one of the qualities that marks common-law judging?
• What does bad or sloppy legal traditionalism look like? What does excellence in legal traditionalism look like?
• What is the appropriate political response to traditionalist decisions? When political majorities reject a traditionalist ruling as hidebound and out-of-date, and thus pass laws rejecting those traditional practices (or lack-of-practices), shouldn't this be celebrated by legal traditionalists, on the whole? Isn't it an as-yet under-discussed virtue of traditionalism that it shifts power and impetus to the political process, where a more pluralistic society can then examine and possibly repudiate our nation's "traditions?" If so, is there a difference between Dobbs, which purports to allow the people to pass laws protecting abortion, and Bremerton or Bruen, which entrench particular practices against legal regulation?
• If the latter practices fall into desuetude for long enough, is it proper traditionalism for a court, even in the absence of a constitutional amendment, eventually to rule that they are no longer constitutional, even though some people or jurisdictions still engage in that practice? How does one go about making that argument and identifying that state of affairs?    
• Are the current justices good or bad at traditionalism? If critics, however substantively and politically motivated they may be, come up with sound evidence that the history and traditions identified by a majority of the Court in a case like Dobbs are inaccurate in important ways, should traditionalist lawyers and scholars, however substantively and politically motivated some of them may be, openly criticize those opinions for their poor work? If they don't, or fail to at least address that evidence in their work (after all, why should we outsiders take the Justices' word for it when they describe legal traditions?), is there a problem with the state of traditionalism as a legal and scholarly practice?
• What did rights-favoring scholars who are currently ill-disposed towards traditionalism say about it when cases like Stevens and Alvarez, which invoke traditionalism in a way that is favorable toward free speech and uses it to guard against new categories of "low-value speech," were issued? Did they criticize or reject it there? Did they instead applaud it, or conveniently ignore it? 
• Are Bremerton, which is discussed in the op-ed, and the American Legion and Town of Greece decisions, which are not, examples of good or bad traditionalism? I'm not sure where in tradition Justice Gorsuch, writing in Bremerton, came up with his seeming requirement that students not "feel pressured" to participate, or the importance of the fact that he did not lead prayers with the team, or his bog-standard-liberalism assertion that "[r]espect for religious expressions is indispensable to life in a free and diverse [r]epublic." (Others have asked exactly what high school football games, or even public high schools, have to do with American "traditions." I'm not sure how strong that criticism is, but it at least suggests that traditionalism, like all other methods of constitutional interpretation, has a level-of-generality problem.) I'm not sure where in tradition Justice Alito, in American Legion, found a requirement that a monument not disparage others, or whether Justice Kavanaugh's concurrence attempting to find judicially manageable principles for Establishment Clause cases going forward should be understood as an utterly non-traditionalist opinion. I'm not sure where in tradition Justice Kennedy, who begins his First Amendment analysis in Town of Greece with the words, "[I][t is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted," found the perfectly reasonable rules of etiquette he constitutionalized later in the opinion. And of course, outside the Establishment Clause, there are what we might think of as the saving provisions in Heller, which ought still to exist after Bruen. Surely those were about policy, not tradition.) Are these bad traditionalist opinions because they came up with sensible qualifications but didn't link them to tradition, and certainly not in any serious, evidence-based way? Are they good traditionalist opinions because good traditionalism, like any good method in constitutional law, must be employed--and adulterated--with a healthy measure of unprincipled Posnerian prudence, pragmatism, and consequentialist? If so, and if such adulteration makes "traditionalism" as practiced by judges look a little ridiculous, does it place it on any worse footing than living constitutionalism, which arguably is most justifiable and acceptable as a judicial practice when its liveliness is connected to--and at least somewhat hobbled by--our ties to, and the constraints of, our (evil, undemocratic, etc., etc., etc.) past, rather than being unbound in its responsiveness and justice-seeking? Or originalism, which is most reasonable when somewhat hobbled by settled precedent?
• This may not be aimed at traditionalism in particular, but more generally at modern approaches to constitutional interpretation in the U.S. After years of mocking the three-part and four-factor tests of the Burger (especially) and Rehnquist Courts, do the little qualifications and caveats in some of these opinions serve as a reminder that we may have moved to the opposite extreme, and that it may be time for a little more appreciation and revival of those former elements of judicial decision-making, which are both made-up and, in theory, conducive to judicial manageability?
• A related point: In what I think is the only useful element to be taken from the "teaching constitutional law is in crisis" assertions, how exactly does one teach--and, especially, evaluate--law students with respect to traditionalism? The same thing applies to originalism, granted, but it certainly applies to traditionalism. Does one hand students an issue-spotting question and then offer a forty-page historical appendix? (In fairness, the point is not limited to originalism or traditionalism. It's just conspicuous because of the novelty. Con law professors may pretend that students are perfectly capable of engaging in proportionality review or rights-balancing or some other form of Goldilocks-ish policy analysis or comparison of incommensurables on law school exams because we've been used to it; that doesn't make it so.)

I could go on. It's still a good op-ed, and far better than most of this kind at giving readers useful information and tools, including the tools to criticize the approach, while avoiding high degrees of advocacy, naked or otherwise. I've enjoyed Marc's work on traditionalism so far and very much look forward to his book. I do think many constitutional law professors continue to engage in an odd, perhaps unconscious pivot in which they quote judicial language concerning "history and tradition" and then start recycling old criticisms of originalism and thus render their work quite unresponsive to the current Court and the methods it is purporting to shape and use. But the study of traditionalism as a scholarly endeavor, whether by supporters or opponents, should certainly now move from identification to serious internal and external critique. Nothing is so useful or commendable, once you've identified or created a good proposal and let it loose into the world, as turning back around and setting your gunsights on it.  

Trump Law Redux

The Supreme Court hears arguments today in two cases involving the use of government pressure and/or "jawboning" to influence the decisions of private parties. Murthy v. Missouri is another Fifth Circuit special concerning the degree to which the government can communicate with, or lean on and coordinate with, social media companies to influence their content moderation policies. National Rifle Association v. Vullo asks how far the government can go in using its regulatory power to pressure companies to stop doing business with a politically disfavored group. 

A good deal of the media discussion has had to do with the serious issue (however dubious most of the public discussion and a good deal of the nascent academic "discipline" may be) of "misinformation," questions of social media platform responsibility, how far government can go in leveraging its power and conversely, how much the courts can or should limit government from engaging in normal regulatory, oversight, and communicative activity. All valid questions, and there are more besides. But if I may venture a mild suggestion: The question the Court should be asking, albeit perhaps quietly, has less to do with current or past events. Rather, the Court is now in "pathological First Amendment" territory. It should be asking: What sort of opinions should it write in these cases with a future presidential administration in mind that may be irregular, vengeful, and punitive?   

The Sense of 'Crisis' in "The Crisis in Teaching Constitutional Law"

I also have some thoughts on the op-ed Gerard discusses below. The op-ed, by Jesse Wegman, is titled "The Crisis in Teaching Constitutional Law." I think the article manages to raise some interesting issues. It is, however, mistaken in one crucial respect--in calling what it describes a "crisis," a new and sudden emergency, rather than a recurring issue in constitutional law and in the academy's relationship to the courts--and questionable in others, and it buries some of its interesting points because of that mistake. There are also posts on the subject by Orin and Will at the Volokh blog; I haven't read Will's post yet, but have read Orin's and find some points of overlap.

In writing this, it struck me at some point that I hadn't even got around to the question whether there is, you know, a "crisis in teaching constitutional law." The answer is no: it's just as easy or hard to teach constitutional law as ever. But that's a mundane practical question. The real points of interest in the piece lie elsewhere. So, for the most part, I'll leave that for a second post. 

So what is good or useful about Wegman's article? Perhaps most of all, it's useful in suggesting, not a problem arising from the Court as such, but a problem arising from generational change, and from changing views on institutions and institutionalism. On the generational front, it notes that we are dealing with at least the third generation of fallout from attachment to the Warren Court. Even if its first-generation advocates have mostly left the stage, the senior establishment still consists of people who were taught by those people, as Pam Karlan notes in the story--and folks like Karlan in turn taught most members of what is now the mid-career academic establishment in constitutional law.

The "valorization" of that Court, and of the role of judges as "heroes who would save us all," remains a powerful prevailing mythos. It is certainly evident in Wegman's own romantic-yet-embittered tone here (although his own professor was at the time leading the charge for popular constitutionalism.) Those teachers didn't just learn this faith once they entered law school. They learned it from a fairly narrow range of media that they would have been exposed to before they became law students, in an era when Anthony Lewis wasn't merely one of hundreds of people commenting on the Court, but rather its primary spokesman. Those media helped feed the mythos.

That time has long since passed. The particular stories and legends that were imbibed by my generation and those before mine are as fresh and relevant to the current generation of students as my classroom references to Kiki Dee or Conrad Bain.

In addition, as Wegman writes, there is a decline in institutionalism and institutional trust. He pins this on events like the hardball refusal to seat a replacement for Justice Ginsburg during the last year of the Obama administration. But that's both unpersuasive and insufficient. The number of institutions that now face significant distrust is far larger. The list ranges across civil society and includes institutions both public and private.

More fundamentally, the issue doesn't just involve distrust in particular institutions, for particular reasons. It involves a broader skepticism of or simple indifference towards the idea of institutions as vital but limited-purpose entities. It makes it difficult to teach about the Supreme Court--but also to be a journalism professor (an area that's been the subject of even more rapid and sustained change, and a more vertiginous decline in public trust, than anything in constitutional law), a medical school professor, and so on. And that distrust is either caused or exacerbated by things like the loss in assumptions about the good faith of one's interlocutors noted in the piece by Michael McConnell, who continues, "I do think that some of the underlying assumptions of how a civil society operates can no longer be assumed." It's in this sense, and not in any sense tied more directly and causally to the current Court, that it makes a difference if people no longer believe that, in Wegman's words, "the Supreme Court is a legitimate institution of governance." People can disdain the current Court and still believe in the larger premise that the Court is important and legitimate as an institution; I suspect that's true for most constitutional law professors, histrionics aside. The problem is that the premise itself holds no interest, no conjuring power, for a growing number of people.   

Wegman connects this point to a quote from Mark Graber, who says, "We're witnessing a transformation in the New Deal consensus" across both left and right. I'm not sure these two things are exactly the same. But--without straying too far into Moyn or Deneen territory--it does seem fairly arguable that teaching constitutional law, in the form in which it has been handed down to us since the postwar era (with hugely important disruptions along the way), or having faith in the Court, among other institutions, depends on a set of assumptions that are consistent with postwar liberalism: its values, its proceduralism, and its reliance on a host of presumptively trusted and valued public and private institutions. Remove faith in some of these things, and the whole edifice becomes unsteady.

"Faith" does seem like the right word here, incidentally. For those who are keen on the "liberalism as religion" argument, or who like to quote the closing lines of Roberto Unger's classic Critical Legal Studies book, the quote from Prof. Melissa Murray in the story's closing lines will stand out: "You're not just ministering to [law students], you're also trying to restore your own faith....This is a place for institutionalists. Deep down they want to believe." She is surely right that law schools are places for institutionalists--at least so far as faculty are concerned. The possibility that our students no longer "want to believe" in that institutionalist project--and that others, of different generations, share both that lack of faith and that lack of desire for faith--is not something she confronts here. Nor does Wegman's story address it. But we might want to. 

These all strike me as interesting points. What is not so interesting is the framework for the story in which they can be found. That framework is that there is a thing called "constitutional law," that it is both relatively stable and closely linked to the Supreme Court and happens, somewhat ironically, to resemble the Court's Burger- and Rehnquist-era efforts to turn the Warren Court's effusions into a more routinized, formalized test-based jurisprudence whose formalization makes things look less like "politics by other means"--and that all of this has been blown apart in a flash, making it impossible to "figure out how any of this makes sense" and thus to teach it or respect it. 

The latter point falls under the "not new" category. As long as we're referencing the era of the great Kiki Dee, take a look at Isidore Silver's article The Warren Court Critics: Where Are They Now That We Need Them?, published in the same year as Dee's greatest triumph. It provides a useful rundown of some of the standard plaints of leading Warren Court critics, many of which find echoes in Wegman's article. Or try Skelly Wright's description of Alexander Bickel and other critics' verdict on that Court's decisions: "over-interventionist in purpose, sloppy in reasoning, and mistaken in result." This is not the first time law professors have confronted a host of new decisions and asked: "How do I teach this? What does it even mean? In what sense is it even constitutional law as I recognize it?"

Nor, to quote Mark Tushnet and Timothy Lynch's account of the Harvard Law Review Forewords, is this the first time that critics of shoddy craft or unprincipled work on the Court have warned that such decisions would place the Court "in jeopardy of acting without legitimacy or moral authority." Tushnet and Lynch note that "these notions appear recurrently in the legal process Forewords," before going on to note that those scholars' "hegemony [began] to crack when its adherents [saw] that their theory [had] become less relevant to the real world." Legal Process had a resurgence in popularity after Eskridge and Frickey published the famous Hart & Sacks materials and helped revive interest in them. Perhaps what we are seeing today is a "crisis" for both the generation of law professors who came to law school when you could actually buy a hardbound version of Hart & Sacks and the generation that saw it to publication. 

The former point--that there is a problem for constitutional law teachers because the stable framework has vanished--I'll take up in a separate post. 

"...Growing Interest in..."

The Atlantic, which, with Slate rendered more or less irrelevant, retains its almost 170-year title as the Mecca of American Midcult, has this interesting story titled, "I Went to a Rave With the 46-Year-Old Millionaire Who Claims to Have the Body of a Teenager." (For the sake of clarity: He claims that his body is the equivalent of a teenager's, not that he has failed to dispose of a teenager's body.) "Interesting" is a strong claim, and words in the headline like "millionaire" and "rave" suggest that a better word would be "quaint," in an 80s-in-"Madchester" kind of way. The subject--yet another person who a) comes from Silicon Valley, b) would prefer not to die, and c) would very much like to sell you something--is not at all interesting. But the story is interesting.    

Specifically, the obligatory passage in which the piece attempts to rise above the noise of the crowd, and to justify its own existence and significance, runs:

Johnson told me wants to create a Don’t Die nation of 20 million people. This may sound unhinged, but people are listening. Johnson’s societal ambition echoes that of growing numbers of tech executives and venture capitalists trying to build alternative cities and states. His quest for immortality has been the subject of features and interviews in Time, Bloomberg, Vice, The New York Times, Trevor Noah’s new podcast, and more over the past year or so. The Blueprint Discord channel has more than 14,000 members, whom he calls the “Don’t Die Army.” In addition to the meetups Johnson hosted in New York on Saturday, there have been more than 200 Blueprint gatherings in 75 countries this year. Some 5,000 people recently enrolled in a self-experimentation study to see how well the Blueprint protocol works on a broader population.

Note the actual level of correspondence between the phrase "people are listening" and the evidence given. The largest number given is 14,000--the number of people on Johnson's Discord server. Of course, 14,000 ain't nothing. As Discord servers go, it's smaller than US Furries (19,000 members) and much smaller than virtually any Discord server related to sex or gaming, but larger than the membership roster of the Smooth Jazz Chill Out Lounge server. In any event, ultimately the evidence for "people are listening," which is a long way from people actually being convinced, or serious, or even particularly interested, consists of a) a small number of Discord server members, which already places them in a specialized population; b) a smaller number of people willing to "self-experiment," which probably overlaps with the number of Discord members; and--and surely most importantly--c) some number of reporters or editors for a small number of similar chattering-class-servicing publications, all of whom are pursuing the same standard-issue feature subjects, and all of whom would prefer that those be roughly the same subjects. (Being first to the subject is good if others soon follow; being alone in finding a subject interesting or newsworthy weakens the cash value of your work and opens you up to claims of unreliable eccentricity.)

References to "growing numbers" and "people" notwithstanding, then, the justification paragraph here does not really support the claim that the subject of the story is significant or that it will be of interest to many people. Indeed, it may well be of no interest to the vast majority of people. Rather, it suggests that the right sorts of people, people occupying roughly the same cultural milieu either directly (Silicon Valley) or indirectly (people willing to read features about rich tech culture in the Atlantic), are willing to treat it as interesting. The story could have said that to justify itself, of course. But apparently that sort of justification would be considered...what, exactly? Insufficient? Inappropriate? Déclassé? Too on-the-nose, too self-revealing? Nor, apparently, is it sufficient to offer no justification whatsoever, other than that one person found it interesting enough to write about. So one must have the usual recourse to flimsy numbers, vague claims of growth, and invocations of consensus on the part of similarly situated culture-and-status markers that the subject is important and the interest justified.

Nothing unusual here, of course. This sort of thing is the vast majority of what "we" read. Perhaps this serves as a reminder to be skeptical of the importance of such stories, even or especially if they engage in the usual exertions to demonstrate their own importance. It certainly serves as a reminder that how these stories justify their importance is usually fairly telling of their narrow class and cultural perspective, and of the narrow nature of the group whose interest counts to certify the story as important. And it leaves open the possibility that the vast majority of people out there would find the same story entirely unimportant, might find whatever is on offer there appalling if they did take any notice of it, and just might be able to identify other issues of vastly greater urgency and importance to them and their lives.

I offer this as a passing observation. It is wholly--well, perhaps not wholly--unrelated to the fact that it is law review submission season; that a great many papers offer almost exactly the same justifications for their own existence and for the importance of some particular subject; that these authors too would like to be first but definitely not alone; and that these authors rely on the knowledge or hope that the people doing the selecting will, in turn, fall within the same narrow class and cultural spectrum, and thus either agree with or gloss lightly over those justifications. 

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.  

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.   

  

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.       

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.  

 

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.   

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.  

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."...

 

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. 

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.    

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. 

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.   

 

 

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.)

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.)  

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.    

  

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.      

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.    

      

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. 

 

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."

   

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.   

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.) 

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. 

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. 

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.     

"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.