Monday, September 26, 2022

Situation-Altering Invocations of "Legitimacy"

There have been a lot of interesting interventions in the discussion of the "legitimacy" or "illegitimacy" of the Supreme Court recently. Some of them are simply collecting on my to-read list, so perhaps I should say interesting-looking interventions. But I am looking forward to reading recent pieces by Thomas Donnelly and, especially (based on the abstract), Or Bassok, among others. I think the general question is legitimate, so to speak. But I would add one note of caution about the broader universe of discussions of Supreme Court legitimacy.

At least post-Fallon, legal scholars are already accustomed to parsing the word "legitimacy" into several possible senses, including moral, legal, and sociological legitimacy. I would add one more distinction, which refers less to the meaning of the word and more to the nature of its invocation. There are good-faith descriptive invocations of "legitimacy," of course. There are also performative or situation-altering invocations of legitimacy. They take at least two forms. One is the deliberate invocation of the term in order to create concerns about legitimacy. Sometimes--perhaps often--the phrase "I have concerns about the legitimacy of the Supreme Court," like the injunction not to think about an elephant, is a way of attempting to create concerns about legitimacy.

The speaker may or may not also have genuine concerns of his or her own about Supreme Court legitimacy. But that is not necessarily the point of the invocation and may be quite separate from it. The point is to cause or encourage the proliferation of public concern about legitimacy, so that it takes on a life and momentum of its own, for electoral, political, fundraising, legislative, discursive, purely self-serving, or other purposes. (In a society that treasures and monetizes prestige and commodifies every "creative" or discursive act, self-interest should almost always be a factor in considering even the most sincere actions. One gets more attention for calling a court or decision "illegitimate" than "bad" or "wrong.") The speaker's own concerns about legitimacy may be nuanced and specific; the invocation is not, is perhaps not intended to be, and encourages the generation of non-nuanced concerns about legitimacy. 

No doubt it has ever been thus. I'm reading Brad Snyder's enjoyable Frankfurter bio right now (more on that, and on incipient Frankfurter revivalism, later, I should hope), and one striking thing about it is just how much pretty well everyone named in the book was concerned with naming and capturing the agenda. Capturing it by naming it in many cases: anyone who took con law when I did, and perhaps still today, will not be surprised to see just how much of the received narrative about its history, accurate or otherwise, was crafted on someone's typewriter and went on to become a free-floating, situation-altering "reality." But the phenomenon has certainly not slowed down and, I think, is changed and enhanced by the combination of wicked social media and the modern academic's ambition and language of "public engagement." And that in turn leads to a related but somewhat separate second form of situation-altering invocation of "legitimacy" or "illegitimacy." Invoking legitimacy doesn't just encourage others to have concerns about legitimacy; it encourages them to put any concerns they may have about the Court, or about particular decisions, into the language of legitimacy. Even if the initial invocation is strategic, ultimately that language shapes and constrains our thinking, just as Bakke's invocation of "diversity" created a half-century of diversity-talk, even if we could have been talking and thinking about the same issue through other and perhaps better lenses. 

We are accustomed enough in other areas of politics to attempting to distinguish between genuine grassroots sentiment and astroturfing. The astroturfing may ultimately succeed in creating grassroots sentiments that we should take seriously, but at least at the outset we are accustomed to treating those efforts skeptically, knowing that some sort of game is afoot. I would say the same thing about the profusion of invocations of concern about the Court's legitimacy, first from professionals and then from everyone else. Some of them are entirely sincere. But not all of them, even by ostensibly reputable people, are. And the second-order invocations of legitimacy concerns that they encourage may be sincere, but may also just be a case of people fitting a different concern--say, about hating a particular decision or wanting a different political lineup on the Court--into the only, or most prevalent, or most convenient, language that is available to them. That is so even if the actual concerns were or are somewhat different, such that we would think more clearly and be better off talking in terms of good or bad decisions or outcomes, or about who we want to have and exercise power. I am focusing in particular on efforts to encourage the belief that the Court is illegitimate, because that involves changing a perceived baseline and because it involves adopting a particular linguistic frame. But surely something similar can be said about language that treats the Court as legitimate or reassures others that it is and that there's nothing to see here. I believe there is a real legitimacy issue here, and probably that there is always such a concern, at least along some dimensions of the word. But we should approach invocations of legitimacy and illegitimacy with some skepticism, recognizing that some first-order invocations are astroturfing, and some subsequent invocations are a matter of adopting language that has been foisted upon the subsequent speaker with the intent of shaping, harnessing, and, in some ways, limiting their vocabulary and worldview. We should remember that when people say "legitimate" or "illegitimate," they may actually care about something else, or at least that they did before they were chivvied into adopting a particular linguistic framework.  

Posted by Paul Horwitz on September 26, 2022 at 12:44 PM in Paul Horwitz | Permalink | Comments (0)

Thursday, August 04, 2022

Missing: A Legal Scholarship of Gerontocracy Outside the Judicial Branch

It took some time before the New York Times, a bellwether of conventional professional-managerial class sentiment, devoted much space to the simple fact that the President is pretty darn old for someone who occupies what is often treated as a highly demanding and stressful job. But eventually, a few weeks ago, it put the point squarely, in an article discussing his age, its possible effects on him, and the political issues it has raised. Since then, it has raised the issue several times, including a story addressing the point in the context of his recent first case of Covid. The politics of President Biden's age have become increasingly prominent; in a primary debate earlier this week, for example, two incumbent Democratic House members thrown into running for the same seat both demurred when asked to support Biden for reelection, with Rep. Carolyn Maloney adding, "I don't believe he's running for re-election." No doubt both of them were aware of polls suggesting an increasing public view that Biden is too old to run for re-election.     

Of course President Biden is not alone in facing these issues and concerns. Writers and readers at the Times and elsewhere delighted in drive-by diagnoses of then-President Trump's mental and physical state in relation to his age, as in "Glass of Water-gate." Trump, too, was too old to run for President the first time, in my view, and certainly will draw endless stories about his age and condition if he runs again. Elizabeth Warren was over 70 as a major primary candidate in 2020 and Bernie Sanders was older still, older than any of his primary competitors. After a long period of omertá and professional self-preservation within Congress, the San Francisco Chronicle finally went public in April with a well-reported story about Senator Dianne Feinstein's (D-88) possible mental decline, freeing up other papers to follow suit. Senate Majority Leader Mitch McConnell is 80. Senate Majority Leader Chuck Schumer is a spry 71 and his Whip, Dick Durbin, is 77. The three top leaders of the House are 82, 83, and 82 respectively. We know all this. But the numbers are striking when put in one place.

I raise all this because I find it surprising (and unsurprising) that we do not appear to have seen the emergence of any real, cumulative American legal scholarship centering on our gerontocracy, and specifically on presidential old age and decline. At least I don't think we have. If there were a body of recent work on the subject, on SSRN or in law reviews, I think I would have noticed. A few crude Westlaw searches don't appear to indicate much at all. A search for references to Richard Posner's book Aging and Old Age since January 2015 came up with only 12 hits; one was in an article focusing on the judiciary and the remainder were not relevant. (I use Posner's book not as an endorsement, although I enjoyed it, but because it would be a pretty conventional reference in a law review article on the subject.) A search in the same time-frame for variations on the word "gerontocracy," unconnected to any other term, came up with 21 hits. Five of those articles connected the term to the federal judiciary specifically; one referred in passing to Congress alone; the rest are irrelevant. No references in the same period to "presidential age" or "president's age" were relevant. The many references to "presidential incapacity" focused almost entirely on impeachment and the 25th Amendment. If, as I think is true, presidential age and its effects is an issue with many policy implications, it is certainly not one the legal academy has addressed much.

One reason that might be offered for this failure is that we don't know it's a problem. But that is one of the very policy issues in question. As the case of Senator Feinstein shows, it can take ages, so to speak, for anyone to be willing to discuss the issue of age-related decline in an elected official with the press, even on an anonymous basis. As against the minor concern that an elected official with great power might be unfit to serve, there are the major concerns of career suicide for staff and of fellow elected officials being ostracized and having donations and favors from leadership and party PACs dry up like the Sahara.

And that's just Congress, a multimember body of, shall we say, imperfect collegiality. Although every executive branch leaks like a sieve, there are leaks and there are leaks. The branch serves one person, and even then that person may be in actual contact with very few subordinate members of that branch. Most people who serve a president will have no idea what condition he or she is in, and those who do are more likely to conceal than to reveal what they know. Insofar as close executive staff are as likely to manage as to serve a president, they may see their primary job as preventing any possible revelations about decline or incapacity rather than airing those concerns, even internally. Unsurprisingly, the main New York Times story on President Biden's age provided strong evidence of this. Most quotes were not for attribution. Many of those consisted of "uniform[ ]" and no-doubt coordinated blandishments about how tremendously vital President Biden is. This presidency's primary press strategy has been one of keeping the President away from the press, and its primary structure has been less one of cabinet politics than of rule by chief of staff, a structure that constricts presidential access and exposure and facilitates presidential management by staff. One simply does not expect senior presidential staff to be honest or candid about such matters. If there have been any high-level meetings about presidential health, decline, or incapacity--and I am not suggesting there have been, or that there have been specific reasons to hold them other than the general fact of the president's age--we will read about them in books published only after the presidency ends. Then they will be much happier to talk and to burnish their records retrospectively. And presidents about whom concerns, sincere or political or both, have been raised about their age may, in a way that is hard to chivvy out, push themselves even if or when it is unwise to do so, precisely in order to allay those concerns. During his recent bouts with Covid, President Biden and his staff have been at pains to emphasize that he continues to work hard through the illness. He may well be in every condition to do so, but could he do otherwise without the inevitable recurrence of stories about his age? Might that be a consideration in his decisions about whether or how much to rest? In the Times story on President Biden's age, the deputy chief of staff, "who oversees his calendar," said that Biden resists having his schedule managed and is "driving additions to his schedule all the time." Is that in fact ideal? Could it be harmful? No doubt it is a function of his own personality, but is it also influenced by a politically driven desire to be seen as vigorous and in command? How much and when should this or any other president be managed, structurally or informally, to prevent such actions? (Consider President Kennedy, his health, and his many willing staff and medical enablers.) 

Another possible reason for the gap is that this is not "law," or law law, beyond the 25th Amendment and related legislation (which has been discussed in legal scholarship, although rarely in the context of age and decline and not, so far as I know, in reference to this particular president). That's not a convincing justification, for at least three reasons. The first and most obvious is that "it's not 'law'" hardly serves to deter legal scholars from writing reams and reams about a great many subjects. The second is that questions of presidential age and decline, of how to monitor it and deal with it, and so on are all obvious policy questions that might be addressed in any number of ways, structural and legal, and thus fertile ground for legal scholarship of a kind that is conducted regularly. 

The third is that the same "there's no 'law' there, beyond a couple of unhelpful words of constitutional text" justification has been no barrier to discussing judicial age and possible reforms around that issue. As I noted above, when legal scholars discuss things like gerontocracy or aging and decline outside of the subject of elder law, they are most likely discussing the Supreme Court and the rest of the federal judiciary. Those judges' tenure lasts "during good Behavior." They are thus, at least arguably, even less constrained than the post-25th Amendment executive. That does not prevent substantial discussion. A search for the terms "cognitive function" or "cognitive decline" within 200 words of "Supreme Court," "federal judges," or "federal judiciary" since 2015 comes up with a healthy 84 results, with a high relevance percentage. See, for instance, this fine and nuanced article by Francis Shen on "Aging Judges," and the largely approving reply from Judge Morris Hoffman. (Both writers have worked on the MacArthur Foundation Research Network on Law and Neuroscience. Its members' publications and a general law and neuroscience bibliography are available here.) The age of the current Supreme Court lineup is a popular topic for those who would like to reform the institution for outcome-neutral reasons or rejigger it for outcome-driven reasons. And this desire is not wrong! (Although in many cases it may be opportunistic.) Of the current members of the Court, one is 74 and one is 72. Both are approaching what we might take as one comparative benchmark, the mandatory retirement age for Canadian Supreme Court justices. Ruth Bader Ginsburg held on to her office, tenaciously, until she died at 87 and after long discussion about her age; Anthony Kennedy relinquished his seat at the age 0f 82, and Stephen Breyer recently left the Court at 83. In an area without much existing law, scholars have been happy to discuss the possible effects of aging on judges, to propose reform efforts, to argue against a "lifetime tenure" reading of the Good Behavior Clause, to carefully study and cite the ages of our sitting judges and Justices, and so on. Legal academic writing about presidential or congressional age and its effects has been far less active by comparison. Perhaps this is an artifact of the politics, and perhaps it's a consequence of the much-remarked and never-cured legal academic obsession with the Supreme Court and the federal judiciary. The discrepancy is remarkable nonetheless, especially in light of the fact that there is certainly no shortage of scholarship about other aspects of the political branches, including topics about which there is "no 'law'" or not very much.  

Finally, there is the politics of the question, which may have influenced the scanty attention legal scholars have devoted to it in recent years. (I have not gone back to see whether there was a spike in scholarship around questions of presidential age during the Reagan presidency.) One could imagine two different accounts of how politics might affect the amount of discussion. The first would be a knowing unwillingness to call attention to the president's age, either because it makes no current difference in light of the comparative ages of Biden and Trump (if Trump runs again and succeeds in the primaries; some of his competitors, such as Governor Ron DeSantis, are considerably younger) or because one doesn't want to call attention to any potential weak points about President Biden in light of the calamitous (on the putative writer's view) consequences of Biden or his party losing the presidency. It is hard to imagine that this has been a serious factor. I doubt this not so much because it would be an illegitimate and discrediting reason for a scholar--although it would--but because the question has been raised repeatedly, first around the primaries and then more recently after something of a pause, in public and political discussion. No amount of legal scholarship discussing presidential age and decline would alter the polls by a jot. The other possibility is motivated reasoning and an effective stamping down of cognitive dissonance. Legal scholars who are willing and eager to see serious questions about judicial retirement ages, and to think of aging and decline as one of those questions, may be unable to see that the same general questions apply to the executive (and legislative) branches (and may indeed be more relevant and graver in that context), particularly if they are committed to convincing themselves that, in the words of the anonymous and surely scripted sources who spoke to the Times, President Biden is "intellectually engaged" and so on.  

All of this is complicated by the fact that aging and old age raises a variety of complex questions. For starters, different individuals may decline at different rates. Apart from general physical health, there are different sorts of cognitive functions, not all of which decline at the same rate or are equally relevant to particular jobs. The more bureaucratized and staff-driven various institutions (including the judiciary) become, the less we may care about the ability of an executive, legislator, or judge or justice to do much more than have a general point of view and cast a vote. (Although this seems to me to be mistaken, since one of the things that aging may affect is a person's ability to change his or her mind.) A number of these issues are canvassed in the article by Prof. Shen and in Posner's book. And we ought to be highly skeptical about drive-by diagnoses of specific individuals, regardless of whether they are applied to the current president or to former president Trump or to anyone else--and even if some of those assessments come from professionals in the field, who ought to know better and who are subject to the same political motivations as everyone else.

Still, none of this means that the general question of presidential (or congressional) aging and how to address it, whether as a matter of general law, of more narrow or more abstract policy questions (such as how to structure executive-branch staffing to ensure that we do not have a second Wilson regency or a captive presidency driven by a chief of staff or someone else), or even as a matter of informal "norms," is not worthy of study. (Personally, I would prefer a strong presumptive norm that it is unwise or simply wrong--politically and prudentially wrong and perhaps immoral--for any elected official to seek, or seek to retain, a particularly demanding office past the age of around 65, regardless of who else is in the race.) To the contrary. The complexity of the question seems to demand further study. I would love to see more of it, or even some of it--and soon. 

Posted by Paul Horwitz on August 4, 2022 at 01:41 PM in Paul Horwitz | Permalink | Comments (0)

Tuesday, June 28, 2022

An Important Step...Sideways...in Legal Education

Again via Paul Caron, I note this post about USC becoming the sixth law school to offer an undergraduate degree in law. The Reuters story that Caron links to asserts that this is a trend that is "catching on" in American universities, which are "seek[ing] new ways to give students a head start on legal careers and help them better understand the role of law in society." (The Reuters story identifies three law schools doing so, but Caron points to other sources that add another three to the list.) The story offers the expected quotes about the general value of learning the law. One passage notes the value of such degrees in allowing graduates to pursue "law-adjacent careers in compliance and human resources." This is of some interest, since it connects the undergraduate degree "trend," if trend it is, to the unquestionable American law-school trend of offering one- or two-year degrees or certificates in "compliance." 

Without questioning the value of such programs or the sincerity of those advocating them, one is of course entitled to ask the standard "cui bono" question. Although stories and promotional materials from law schools always trumpet one-year increases in law school enrollment, the overall numbers have gone down from the period of steady increases that picked up speed around the 1980s and peaked around the time of the 2008 recession. Those of us who were around in the period around 2008-2011 can well remember what is was like to teach students who had enrolled at the height of the market and suddenly found themselves graduating into a very different and much bleaker market. Law schools have a physical plant, and its value and capacity is hardly exhausted by the (smaller) number of law students sitting in a given number of rooms for a limited period of time each week. After 2008-2010, it is surely fair to say that many deans (and provosts across campus) saw the potential value of turning to short-fuse "certificate," masters, and other programs. The tuition for such programs was or is often fully paid for (sometimes by employers) rather than steeply discounted. They can be staffed substantially by adjuncts with one or two faculty members serving as director. Such programs can extract more value out of the physical plant, make up for smaller JD enrollments and competitions to draw JD classes with US News-friendly metrics through scholarships and discounts, bring in additional revenue, and diversify law schools' business operations. And that's not even to speak of the role of online education, which allows one to extract value without even causing wear and tear on the building. One can sincerely describe the rise of compliance and the growth of HR departments out there in the real world as both a genuine need that ought to be filled with training programs, and a financial opportunity for law schools. 

But it seems to me that the rise--if six schools can be considered a rise, and if more schools take this step--in undergraduate law school programs raises the obvious next question, one that was asked occasionally during the initial period of writing about the state of law schools: Why not go whole hog? Offering undergraduate programs in law, while maintaining the general structure of American legal education, strikes me as a step sideways. The step forward would be to move more fully toward a more European model. Is it really absolutely necessary to keep our awkward mixed model of law schools as both professional education in the practice of law and scholarly education in the subject of law? Does such a model do justice to either of these goals? Why not shift those--both students and faculty--who are interested in law as a legitimate academic subject to an undergrdauate and graduate Department of Law, while offering a two-year professional program for those who wish to become lawyers, one staffed largely by practitioners, clinicians, and more practice-oriented full-time faculty?

It seems to me that one great benefit of such an approach is salary cuts. The professional school would rely heavily on adjuncts. And the salary of truly academically oriented law professors could be greatly reduced, making them commensurate with the kinds of salaries that are offered in most academic departments. As law schools follow a model of hiring Ph.Ds, that seems particularly appropriate, and those doctorate-holders could decide whether to pursue their work in a law department or a department of economics, political science, psychology, or whatever their field is. There are many lawyers (and current law professors) who have a genuine and enduring vocation to study and write about law as a topic and would gladly accept a lower lifetime salary for the opportunity to do so, along with the other benefits of life in a university, including tenure. If law departments required a doctorate in law or some other subject as a condition of employment, many would take that step and invest that time. Others--including some excellent scholars--might have the skill, but not a vocation so strong as to make them leave more lucrative careers for a department of law, with a salary lower than those currently offered at "law schools" under the current model. Maybe that's a genuine but acceptable loss. And maybe those whose interest is more in advocacy from a comfortable perch than a genuinely academic vocation would opt instead to work for advocacy groups or to pursue their goals in other ways. I might add a flipside benefit of salary cuts and of bringing the academic study of law closer to the model of other academic departments: If salaries were lower, and if departments of law brought their tenure rates closer to the rate that prevails elsewhere in the university and down from the extraordinarily high tenure rate of contemporary American law schools, law departments could (if the student demand existed) hire more faculty and, more importantly, take more chances in hiring. It's hard to take a flyer on someone who is genuinely promising and heterodox in his or her views, but doesn't already have a long paper trail and the usual set of ready-made credentials, if you know that a hiring decision is tantamount to a "yes" vote on tenure.   

If this "trend" is just about filling empty seats and finding new revenue streams, so be it. But if ought instead to be food for thought--including, perhaps, the thinking of university administrators. Maybe the academic study of law and the training for the practice of law would both benefit if the ostensible trend for undergraduate degrees in law resulted in an explicit two-track, two-schools approach.      

Posted by Paul Horwitz on June 28, 2022 at 12:52 PM in Paul Horwitz | Permalink | Comments (0)

Monday, June 27, 2022

Shaviro, "'Moralist' Versus 'Scientist'"

Via Paul Caron, this paper by Daniel Shaviro: "'Moralist' Versus 'Scientist': Stanley Surrey and the Public Intellectual Practice of Tax Policy." Tax law is well outside my wheelhouse, but the kind of issues the paper discusses are most certainly not foreign to constitutional law. Indeed, they are a guiding dispute and overarching theme for much of modern academic life.

From the paper's introduction:

Tax scholars have long felt the dual call between functioning primarily as “scientists” who seek to advance expert understanding, and/or as “moralists” who seek to improve the world....

To this day, the scientist versus moralist dichotomy continues to be prominent in the field. We all can think of tax scholars whom we view as primarily engaged in either the one enterprise or the other. Moreover, those of us with a foot in each camp are often quite self-aware about the distinction between projects that aim at neutral analysis, and those that engage in deliberate advocacy with the hope of improving the world.

To the scientist, the moralist risks the intellectual sins of over-selling, over-simplifying, and perhaps even improperly tilting the analysis or conclusions for ideological or salesmanship reasons. To the moralist, the scientist risks aesthetic self-indulgence, and perhaps even the self- centered pursuit of academic reputation, at the expense of actually trying to make a positive difference in the world....

Surrey’s memoirs provide a valuable opportunity to interrogate both a prominent instance of the “moralist” approach to legal academic work and the grounds for his main tax policy stances (all of which remain rightly prominent, albeit reasonably contested) – along with the question of made him so sure that he was right. I aim here both to explore his own underlying moral premises, and to assess what his work both gained and lost intellectually by reason of his hewing so strongly to a set of career-long, deeply held beliefs.

All very familiar to all of us, I should think, but there is something tremendously useful and revivifying about seeing the question presented and pursued in a different substantive area, and thus without the deadening familiarity of seeing it argued by the usual suspects in one's own substantive field. I have not read the whole paper yet, but so far it is crisp, eloquent, and interesting. I happily recommend it.   

 

Posted by Paul Horwitz on June 27, 2022 at 04:12 PM in Paul Horwitz | Permalink | Comments (0)

Some Supreme Court Miscellany and "Living Under an Anticanonical Legal Regime"

For various reasons, I'm inclined to avoid writing directly and on-point on the avalanche of important Supreme Court decisions. So here instead are some off-point questions and observations. Lest I be misunderstood, in a "people are starving and you're writing about a mere avalanche" way, I do not think many of these questions rise to the level of importance of the core issues addressed in these decisions. A few may actually be significant despite my best efforts, and I think a couple of points, which I naturally have placed toward the bottom of the post, raise genuinely useful questions that I hope others will take up. (Among other things, I'm recovering from surgery and more slowly than I had hoped, so I doubt I'll be the one to do it.)  

1) Isn't today's Bremerton decision, whatever else one thinks of it, good for academics? On the way to its decision, it discusses Garcetti, and emphasizes that the question whether a public employee's speech is "ordinarily within the scope of an employee's duties" should "be undertaken 'practically,' rather than with a blinkered focus on the terms of some formal and capacious written job description. To proceed otherwise would be to allow public employers to use 'excessively broad job descriptions' to subvert the Constitution's protections." Isn't that good for professors who may be engaging in speech for which the university would like to discipline them? I am more of a realist than a doctrinalist; I think any decisions on these issues will be guided more by what the Court thinks the scope of protections for academic speakers in particular contexts should be than by any prior formulae. But the language is there just the same and ready for use.  

[I'm leaving the paragraph above in. But I should note that I have been reminded by a correspondent that Garcetti did not answer the question whether and how it would apply to university professors, a question that was raised in dissent by Justice Souter and noted but left undecided by the majority. More important, the federal circuit courts--five of them so far--have refused to apply it to academic teaching and writing. I'm grateful to Prof. Jason Kilborn for writing to me on this point and for the citations--including to page 16 of Bremerton itself, where the Court notes that the case "does not raise questions of academic freedom that may or may not involve 'additional' First Amendment 'interests.'" I should add that as I write this, I realize that what I had largely in mind was writing by academics outside of the clearly academic field that a university might want to treat as writing that falls within the professor's scope of work for purposes of the chopping block. I wasn't thinking so much about statements inside the classroom or in whatever would clearly count as "academic writing." But, aside from my also realizing that it's far from clear that that kind of writing could ever be covered by Garcetti, the general point stands: that decision, which I had not reread in forever but should have before posting, does not clearly apply to professors, and so the preceding paragraph is something of a wet squib. Fabulous stuff below, though!]     

2) What will, or should, happen to con law casebooks? I am very slowly working on putting together my own constitutional law materials, so I tip my hat to published casebook editors, the best of whom do serious work in creating those books. But there are inevitably time lags, narratives that shape a casebook but become increasingly outdated, tendencies to fight the last war, overemphasis on cases and issues that engaged the editors' passions at the time but slowly faded into the general fabric--witness the growing and then shrinking space devoted to the Guantanamo cases or Bush v. Gore--and so on. Is this a Term that calls not for regularly scheduled annual supplements, but altogether new editions? (I am focusing here on the casebooks as books, without any other considerations. My views may be different if they are considered primarily as commercial operations. Although I'm sure new editions are greeted with delight by most publishers and many authors, my primary sympathies here are with students, who may not be delighted by the news that their recently purchased and incredibly expensive book has lost its resale value. That's why I'm putting together my own materials. In a better world, the average cost of materials for a casebook-centered course would approach zero dollars, and enough law professors would invest time in free materials that the great casebooks--and the great ones really are great--would at least face real incentives to reduce their price significantly.) 

Should annual supplements, at least, be different this year? Usually, they simply invite the person using the casebook to insert new case A at page X, and so on. Perhaps the editors instead should rewrite particular chapters, or offer a suggested table of contents for new chapters or sections of their casebooks, one that takes serious account of the relationship between the old cases in the casebook and the new supplemental cases that diminished or supplanted them. That's true not just of this year's blockbusters, but of other recent cases. Surely it's time for a rewrite of large chunks of the separation of powers chapters, particularly those that discuss appointments and removals and are still oriented around a narrative frame that starts with Myers and culminates in Morrison.  

At a minimum, I would suggest to published casebook editors that they include a serious introductory essay in their annual supplements assessing the state of affairs and how it affects their casebooks. They ought also to publish and distribute similar essays for those using their teachers' manuals, including new suggested syllabi. A serious "supplemental" effort this summer will involve some real work and major surgery. 

3) I mentioned casebook narratives above. Of course, they're not limited to casebooks. Narrative frames pervade how we talk about the Supreme Court and its jurisprudence. I suppose that is what supplies my own answer to the question posed by Gerard: "Is there still any reason to teach the liberty of contact cases in an introductory constitutional law course?...If Lochner is not canon and is no longer meaningful anti-canon, [because one can simply use Roe and Casey as the arguably anticanonical cases and contrast them with Dobbs], then why teach it?"

Howard offers an answer below: "Lochner is more than an unenumerated right. The case also functions as shorthand for using the Constitution to protect economic activities against state regulation. That effort continues with recent efforts (some successful) to use, for example, free speech to hamper economic regulation--hence so-called 'First Amendment Lochnerism.' Can students understand that concept and what it entails if they have not learned Lochner?" By implication, his reply to Gerard is that there are good reasons to continue to teach Lochner and to make it an important part of one's narrative in a constitutional law course.

I tend to agree with Howard, while also agreeing that Gerard's question is a useful provocation. I cannot overemphasize how much I dislike the tendency to sum up doctrine and doctrinal developments, as well as political and cultural developments, in bumper-sticker phrases such as "cancel culture" or "First Amendment Lochnerism" or "weaponization." This kind of thing is not new, certainly, but it has arguably been supercharged in recent years, by factors such as social media and social media-like thinking, the effort to pursue and promote a mix of "academic" and openly political projects across "platforms," and the emphasis on branding as a way to claim novelty or importance and thus claim a spot in a fancy law review. Cardozo wrote of metaphors that they "start[ ] as devices to liberate thought [but] end often by enslaving it." Slogans like "First Amendment Lochnerism" and many more, of whatever political orientation, are similar but mostly skip the first stage. Whatever their original authors' intentions, which may have been sincerely descriptive, they are often deployed to arrest thought, to force someone to think only in a particular way; they are not liberatory or fertile, but constrictive. To the extent that they are deployed for political purposes, that's natural. Political slogans are meant to serve a particular end, not to encourage exploration, divergence, dissent, or heterodoxy on the part of their readers and listeners. But I can't say I find this sort of thing attractive in either serious thinking and writing or academic thinking and writing. There are a lot of valuable discussions to be had about the issues or incidents that gave rise to the phrase "cancel culture," but they do not include the many arguments that focus excessively and absurdly on the phrase itself when they insist that "cancel culture" exists or does not exist. I would say the same thing of the popular bumper-sticker slogans that are colonizing constitutional law writing on the part of judges and academics alike.  

Nevertheless, Lochner, or "Lochner" as a shorthand or place-holder, is very much a part of the 20th Century American legal tradition and extends firmly into the 21st Century so far as well. Roe may officially be bad law now, and it may have been criticized, by liberals and conservatives alike, since the day it was issued. But it is not "anticanonical" in the usual sense in which that word is used. And I see no serious likelihood that it will be treated that way by mainstream American legal culture any time soon. So, if only because of the narrative that continues to exert a strong and perhaps distorting pull on our thinking about these issues, there are still good reasons to teach Lochner, even for professors who do not emphasize historical arcs or narratives in their teaching but focus instead on current doctrine.

[Let me offer a self-serving plug for a very good recent book on some of these questions. Law's Infamy: Understanding the Canon of Bad Law, edited by Austin Sarat, Lawrence Douglas, and Mary Umphrey, is good despite rather than because of my own contribution. But that chapter, "Fame, Infamy, and Canonicity in American Constitutional Law," does discuss many of these issues.]

This leads me to some additional questions. They deserve posts and discussion of their own, if someone else if not by me. In any event, building on my response to the question of Roe and Lochner and the status of the constitutional law canon, I would offer the following suggestions or questions:

A) Isn't it likely that many professors will, in a sense, teach Roe and Casey as canonical and Dobbs as anticanonical, despite the fact that the latter case is "good law" and the the former cases now are not? Are there good arguments for doing so? Whatever its consistency with many constitutional law teachers' jurisprudential and political views, is it good teaching? Or is it in tension with the role of a law teacher qua teacher?     

B) Following on this question, and in keeping with the view that a lot of American constitutional law thinking and teaching  takes place within a narrative frame, won't a good deal of American constitutional law writing and teaching for the next little while take place within the narrative of living under an anticanonical legal regime? As novel and dispiriting--or motivating and energizing--as this idea might be for many, it should hardly be shocking for legal academics in this area. But it might provoke some interesting (and some awful) writing. Reserving my views about whether it is sound or proper teaching, I'm sure it could also make for an interesting narrative frame for a basic con law course. 

4) Two final questions. First, what will be the relationship between the current Supreme Court and the lower federal courts, especially the circuit courts? It has seemed to me in recent years that at least in some areas, the relationship between the two has been one of two solitudes operating on more or less separate but antagonistic tracks, with some decisions suggesting that some appellate court panels were resisting or ignoring the Court. Despite that description, I actually think some of these instances were productive, not in the sense that they were necessarily correct or successful, but in the sense that the antagonistic dynamic, along with governmental responses to the intermediate court rulings, ended up producing some reasonable outcomes. Will this trend continue, or even increase? (And conversely, will there be instances of appellate panels overreading recent precedents and trying to push the Court farther than it wants to go?) 

Along the same lines, in the post-Brown years, there were famous instances of lower federal courts offering dubious efforts to distinguish Brown and other precedents, such as by focusing on Kenneth Clark's doll studies and concluding that they, and Brown itself, were undermined by competing social science. They are not celebrated. Will we see similar efforts now to resist some of the Court's recent opinions? Will some of them be similarly dubious in their deployment of the facts or law? How will these decisions be regarded? Quite differently, I expect.

And last, will we see one of the regularly-predicted and little-noticed revivals of state constitutional law?     

Posted by Paul Horwitz on June 27, 2022 at 03:32 PM in Paul Horwitz | Permalink | Comments (0)

Thursday, June 23, 2022

Supreme Court Seminar Inquiries

I am teaching a Supreme Court seminar this coming year. I would welcome any thoughts from those who have taught or are currently teaching such courses about how they structure their seminar, what materials they assign, what kinds of preliminary classes they teach before directly getting into individual cases, and what they have found works well or poorly. I am just as happy to hear from students on the same questions. My email can be found at my faculty bio page. I'm grateful in advance for any communications about this. 

Posted by Paul Horwitz on June 23, 2022 at 01:13 PM in Paul Horwitz | Permalink | Comments (0)

Wednesday, June 08, 2022

"I Can Say Without Hyperbole That This is a Million Times Worse Than All of Them Put Together"

The headline to the NPR story, delivered this morning, so I gather, by Nina Totenberg, is "After leak, Supreme Court seethes with resentment and fear behind the scenes." Maybe so. That is, after all, a fair description of the average workplace. 

But I must say the evidence for it in the story itself is remarkably weak. What does it consist of? Totenberg notes a speech by Justice Thomas a few weeks ago, and describes it as "seem[ing] to say he no longer trusts his colleagues." Thomas's speech praised the sense of trust that prevailed when the Court, under Chief Justice Rehnquist, had 11 years without personnel changes. Thomas did say, "This is not the Court of that era," but Totenberg does not quote this line. She does, however, first say that Thomas "[s]pecifically...implied that he doesn't trust Chief Justice John Roberts," and then write, "The root of the current antipathy is not definitely known," a sentence that feints at epistemic humility along one front while drawing from her inferences, so far as I can tell, and then asserting as settled fact that there is antipathy between the two. 

She goes on to talk in general terms about government leak investigations and directly hypothetical terms about how they might go at the Court, adding the unsourced comment that "indications are that some law clerks are lawyering up," following later with a more relevant, albeit unsourced and Brockmanesque, statement that "the terrified law clerks have been calling law firms, wondering whether they need legal representation." 

That quote is one of three things that come the closest to direct evidence, although I have no idea what her source is for the experience of terror as opposed to the concrete action of calling law firms (also unsourced). The second is this sentence toward the beginning of the piece: "The atmosphere behind the scenes is so ugly that, as one source put it, 'the place sounds like it's imploding.'" And the piece's kicker involves this: "'I don't know how on earth the court is going to finish up its work this term,' said a source close to the justices." That amounts to two quotes, neither of them especially direct and the second one not especially conclusive. Note that "a source close to the justices" and "one source" may be the same person. And since the second quote is followed by Totenberg writing in her own words but attributing the point to the same source about the clerks being "terrified," there may be as few as two sources, and possibly one, for the whole shebang, other than those portions of the article that draw on perceived implications and inferences. My trust in the accuracy of conclusions about highly specific facts in the world drawn from implications and inferences is somewhat diminished by, inter alia, 30 years of argument on the Internet.  

All of it may be true. All of it and worse may be true. It may be time, to quote another fine Kent Brockman line, for Court-watchers to crack each other's heads open and feast on the goo inside. But the headline hardly matches the evidence. Of course journalists don't write their own headlines. But the piece itself is paper-thin. Not only did the reporting not justify the headline; the reporting did not justify running the report. Perhaps Totenberg knows all this and more from many places. But that's quite irrelevant. "Trust me; I'm so-and-so" is not authority, although people in our line of work do seem ready to be overawed by famous people. Not is it journalism. Getting the goods, and reporting only what you can nail down and only so far as you can do so and without hyperbole, is journalism.  

Posted by Paul Horwitz on June 8, 2022 at 03:54 PM in Paul Horwitz | Permalink | Comments (0)

Monday, May 02, 2022

Leaks and a Look Backward

I'm sure there will be lots of commentary on the apparent leak and, with luck, I will not add to it. But I do have a couple of immediate thoughts, albeit they come at the least useful moment, since a) as the leak itself suggests, one often acts and reacts foolishly in the moment and b) one doesn't know whether, assuming a leak did indeed occur, it came from a member of a chambers--a Justice or a law clerk--or from someone or somewhere else. That matters for some reasons and not for others.

The first thing I must suggest is something I have been saying to myself plenty over the past five or six years--somewhat ruefully, since I wrote a completely true but, it appears, ill-timed book on the value of institutions in the First Amendment--and that is that the true, encompassing crisis of our times is an institutional crisis. In this case, the crisis might be manifest in the failure of the institution to stanch such leaks; it might be manifest in the petty leaks and apparent off-the-record interviews with justices that have occurred over the past few years, all of which were contemptible; and it might be manifest in a different and possibly generational way, in the sense that there is no greater sign of an institutional crisis than that its constituents no longer understand the nature, role, and value of an institution and its norms, and no longer have the faintest capacity to understand why their own desires might be less important than that institution. We spent a great deal of time talking about that during the Trump presidency--about the idea that staffers, officials, or, God help us, the chief executive might not understand that they filled a particular institution and must inhabit and respect its norms, whether they liked it or not and despite their own views in the moment. That would certainly be true of a justice or clerk who thought, "Every institutional norm forbids this action. But I'm doing it anyway."

The second is that, to the extent we are talking about a law clerk leak, it is somehow incomplete, if not dishonest, to do so without talking about money and its equivalents. Supreme Court law clerk signing bonuses are in the neighborhood of $450,000 these days. Some people consider that pretty decent money. But people value all sorts of things, and there are lots of ways to cash out the value of a Supreme Court clerkship, all at highly inflated sums, and a signing bonus is just one, as any former clerk working at a desirable law school (which is any law school, given the desirable nature of the job) could tell you. It seems to me that any anonymous leak by a Supreme Court clerk cannot be discussed or understood with any openness and intelligence while pretending that the context of almost endless remuneration just for having had the job doesn't exist. I would disagree with a law clerk who openly, by name, leaked a draft opinion, but I might feel a kind of respect for that person. Of course I would still call for their prosecution, possible imprisonment, and lifetime ineligibility for the bar, and rightly so. (This would hardly disable them, of course, from profiting substantially from such an action. In this country, everything can be monetized at some point and in some way. A memoir entitled "I Did it For Principle!" would get an advance from any publisher in the land large enough to make Croesus blush.) Still, I might respect the action, in its way, and at least doing so in that way would be preservative of the institution: violating institutional norms openly and for reasons of alleged principle reinforces those norms in the very act of violating them. But--again, if it is a clerk doing the leaking--we cannot understand an anonymous leak without understanding the money, goods, connections, and reputation involved in the commodity of having clerked for the Court. Leaking anonymously strikes me as worse than cowardly--it's chickenshit. (I should add an edited point here. I understand that Orin Kerr argues, in a Place I Do Not Visit, that there may in fact be no criminal penalties available if a law clerk was the culprit. Fair enough. I should not have assumed otherwise, and it ought to temper my rhetoric, even as I think any available remedies and punishments should be sought. On the other hand, in a way it underscores the cowardice involved in leaking anonymously and the degree to which there is no point discussing a leak by a law clerk--if it was a clerk, which it may not have been--as some great act of principle without also discussing the unwillingness to give up the myriad prizes that come with the Certificate of Clerkitude. Taking prosecution off the table would elevate the level of cowardice and unworthiness of the clerk-leaker from "But for Wales" territory to "But for Denbighshire?")

I'm also interested in looking back. My rather visceral reaction to this story makes me reflect on past news, even if this case is unusual and extreme. It is worth recalling the number of law clerks who apparently lined up--all anonymously, of course--to perform their outrage by leaking information to that august institution, Vanity Fair, about the deliberations concerning Bush v. Gore. Those leaks happened after the fact, of course, although this point cuts both ways: it did no harm to the institution in the moment, but it also can hardly be said to have been done in the heat of the moment. It was a studied act of cowardice. Years ago I called their stated justifications for doing so "insufficient and melodramatic," and I see no reason to change my view now. If anything, with that decision having gone from scandal to footnote, it seems more appropriate, and a reminder that a clerk's view of what constitutes "urgency" or "necessity" pales next to the wisdom of the  longue duree. But while we share our shock or outrage (or glee, for some) at the idea of a leak, we should remember that it happened before, and that those leakers did very well for themselves. Their names are public; you could look it up, as the old saying goes. A look at the clerks from that Term reveals any number of people I would happily curry favor with today, lickspittle that I am. But I also continue to think that their anonymous leaking was cowardly and that they too should have been prosecuted (or, per my note about Orin above, subjected to actually existing penalties). At a minimum, it is not too late for them to write to their bar or bars, presumably copying their current employers, reveal their violation, and see whether the bar or their employer cares to take action. If you have nowhere to go but down, why not try that?  

Finally, what of Justice Potter Stewart? After all, this leak might have come from a Justice--and, at a minimum, a number of justices in recent years have been happy to give off-the-record interviews to the press. Stewart, of course, did a good deal more than that. He leaked like a sieve. His role as unofficial reference librarian to Bob Woodward and Scott Armstrong, authors of The Brethren, was not revealed officially until after his death. But of course he knew it, and could have disclosed it any time he wished. And doubtless it was an open secret for many more. Stewart today is, I think, fairly evaluated as an okay justice but more or less a footnote and certainly not a star in the Court's history. (As are most Justices, after a long enough time, in fairness.) But in his day, he happily took his full measure of victory laps: the usual double-round of tributes and encomia from his servitors, both on his retirement and at his death. I think The Brethren did no lasting harm to the Court. It certainly did not at the time harm Stewart, who surely leaked in part precisely to buff up his own public reputation. But I also think it is entirely fair to conclude that by many a reasonable reading of his oath, of the judicial role, and of the norms of the Court, Potter Stewart spent the last decade or so of his service on the High Court as a sitting justice who was fully eligible for impeachment. Should that not somehow be factored into our mentions of Justice Stewart, on the rare occasions that he is mentioned at all? There is a bit of a trend right now of law review articles articles talking about the need to add moral considerations to parentheticals in citations. Should we not at least refer to him, when we mention him, as "Stewart, J. (committed impeachable offenses)"? Or do something similar in remembrances by former clerks? ("I remember the time that Justice Stewart, who was then committing impeachable offenses on a regular basis, said sagely to me, in his inimitable gruff voice,....")

Perhaps, in short, as we reflect on the cowardice and greed (with whatever added alleged soupcon of asserted principle or outrage) of the current leaker, we might spare a thought or two for the pusillanimity of the leakers of the not-so-distant past.    

Posted by Paul Horwitz on May 2, 2022 at 11:37 PM in Paul Horwitz | Permalink | Comments (0)

Friday, April 15, 2022

Tear Down This "Wall?"

Today's NYU Law controversy has something in common with earlier and by now routine Yale Law School controversies. That common feature doesn't seem to have gotten the attention it deserves.* That is the presence and role of a student listserv or "Wall" (as I gather the Yale student listserv is called) and the contribution that such spaces make to real or apparent controversies and unpleasantness at such institutions. 

I imagine that different schools run their student listservs different ways and have different reasons or justifications for having one at all. Of course one can imagine many ostensible justifications for having a student listserv and many of them are no doubt sound. (Others might be sound in some ways but not others: for instance, seeing it as a kind of consumer feature or customer service.) But one also imagines that ostensible purposes are not always actual purposes, that in many cases these spaces just sort of happened and then became taken for granted parts of the institutional landscape, that some of the justifications offered for them are rather post hoc,** and that in many cases, whatever the original justification was, such as making it easier to communicate news of upcoming events, their actual use now differs substantially.

Your institutional mileage may vary, but I suspect that what takes place on these listservs or walls is invisible to most professors. If anyone sees them at all, it may be only or mostly administrators. Some of my best friends are administrators, but there is no guarantee that they always make the right call about the function or value of communications in such places, or communicate what they hear to the faculty in a timely fashion. In other schools, professors may be part of the listserv but may or may not pay any attention to it.

It's also unclear to me how many students pay attention to the communications or fights on student listservs. As with other social media, however, it may be that the loudest voices are not necessarily the soundest or sanest ones, with the result that some small number of students drive controversy and disagreement while a larger number of students react by disengaging altogether. (Law professors who participate in subject-matter listervs, in which most people stop reading them while five or ten people regale themselves with repetitive and unpleasant debate and grandstanding, have no shortage of experience with this phenomenon.) As some of the Yale controversies suggest, these spaces may also encourage an unhealthy culture in which, again, some number of students actively scour the written record for evidence to use against their fellow students, while a larger number, for this very reason, stop saying anything at all. And all this is just about the political issues. On topics like exams, course selection, and other matters more relevant to the day to day life of the institution, they may drive up anxiety and bad information instead of calming it.

We seem to take student listservs or walls for granted. I don't see why we should. Not all communication is good communication and, even if we adopt the general view that more speech is better, not all communication structures are designed or managed in a way that achieves that goal well. Peer-to-peer communication is not always better than top-down, one-to-many communication. I generally favor cheaper speech, but clearly it has bugs or side-effects as well as positive features. There is something to be said, sometimes, for making it more costly and difficult not only to say the first thing that comes to mind, but to broadcast it instantly to a wide audience. There is lots of value in forcing reflection or delay before communication, or simply treating some forums as having a limited purpose rather than serving as open forums for general discussion.

That's especially true for institutions, and schools are institutions, with specific institutional goals and purposes, however much they may prefer the language of "community" or, worse, "family." And it must be said that nothing about these issues is unique to law schools or universities. They affect (or afflict) other institutions as well. Full many a New York Times staffer, to name just one prominent example, must rue the day they first heard of the "Slack app" or "Slack channel"; conversely, some staffers may love those spaces, but not necessarily the right people or for the right reasons. It seems to me that far from serving the institution and its purposes, sometimes these spaces serve those who have no particular interest in institutions, including their own, but instead think that every space, including institutional spaces, should be a space in which they can and should discuss and push on every issue of interest to them.

The discussion around these controversies generally dives immediately into either the substance of the debate or the usual arguments around "cancel culture," "hate speech," and so on. It is rarer for the discussion to start by asking about the structures that facilitated or enflamed the controversy in the first place. Perhaps when such controversies arise, and we find that a good deal of the controversy has to do with or takes place in a particular communicative context hosted or facilitated by the institution, such as a listserv or Slack channel or "wall," we might ask some prior questions, such as: Why the hell do we have such a space in the first place? Is it still serving the purpose--if any--for which we introduced it, or has it become more a source of trouble than a useful feature? Is it serving the entire population equally well, or is it disserving or driving away a larger percentage of the institutional population than the few for whom it is, apparently, a hobby or obsession? Why not get rid of it, or at least significantly alter the way it works? To be clear, I don't know what the right answer is. But it seems reasonable to me to ask the questions, rather than take the current setup for granted. It would be especially useful if all this were a faculty discussion, not one confined to and addressed by a few administrators, who might or might not be making the right call on these questions.      

*David Lat has commented at various times about the effects of the Yale Wall and the ways in which current students seem to use it differently and in, to use an awful contemporary word, a more "weaponized" fashion compared to his own time at that school.  

**Thus, one perfectly reasonable argument for keeping a law school listserv or its equivalent, or for concluding that whether one does or not is unimportant, is that students will do it themselves anyway. A friend or two have written to suggest that student connectivity is ubiquitous at every school regardless of the official setup. I have no reason to doubt that. But I'm not sure it's the reason the listservs were established in the first place, and I should think the chronology suggests otherwise. It seems to me, strictly anecdotally, that more of the public controversies involving fights on and evidence taken from listservs have involved official rather than unofficial sites, but I could be quite mistaken. (They also seem more often than not to involve the elite law schools. I assume the reason for this is not that these students are any better or worse than anyone else, although I could certainly imagine that there are some schools where students are too busy seeking jobs and learning practical skills to spend much time issuing statements and counter-statements. Rather, I imagine it has to do with these schools' visibility, their students' media savviness, the interconnectedness and shared social capital of American elites, and the odd shared view of elites and others, both within and outside these institutions, that what goes on in these places is somehow particularly significant.) If I'm not wrong about this, it would be worth asking why that is; perhaps it's the easy and/or automatic universality of the official site. In any event, in light of my view of institutions and their duties, I'm not crazy about futility arguments of this sort. The fact that nasty free-for-alls might erupt somewhere else is not much of a reason for an institution to host a site of its own for such free-for-alls. But I should certainly acknowledge that what law schools and other institutions do with their own resources will not prevent their members from doing unwise and intemperate things elsewhere.  

 

Posted by Paul Horwitz on April 15, 2022 at 12:41 PM in Paul Horwitz | Permalink | Comments (0)

Friday, March 25, 2022

Some Thoughts on Today's Ginni Thomas Story

1: I'm focusing only on today's story, in which the Times reports that Virginia Thomas sent a series of texts to President Trump's chief of staff, Mark Meadows, urging him to take steps to overturn the results of the 2020 election. I abstract away, for the most part, from her, from any previous coverage, good or bad, and from Justice Thomas himself. 

2: We might view this as a subset of a subset of a general question produced by now-longstanding social and cultural change. The broad change is the rise of two-career spousal couples. The broad subset is two-career professional couples in Washington, D.C., the classic Washington "power couple." It is a well-established and bipartisan phenomenon. The conventional and safe view is that there is nothing wrong with it as such, and the further conventional and safe view is to raise serious concerns about it in particular cases, choosing one's focus and the degree of one's concern based upon one's political allegiances. The subset of a subset involves professional couples in which one partner is a judge. I will focus quite arbitrarily on high-level federal judges, although it seems to me that any potential concerns might well be graver in the case of federal or state trial judges.

3: Part of the reason for the contemporary conventional and safe view, apart from elite class prerogatives, is that there is obviously a significant gendered or gender-related component here. As a historical matter, the raising of concerns necessarily focused on working professional women in marriages or relationships, as greater numbers of them entered the professional workplace, including the political workplace. Whether the concerns were based on some kind of explicit bias or not, the attention and the burden surely fell disproportionately on women, just as they were fighting to emerge from legal and cultural barriers to professional advancement. Any treatment of the general question should fully acknowledge that fact. 

4: Acknowledgment is not dispositive, however. Whatever one might say about other power couples--Senator/cabinet secretary, House member/lobbyist, elected officeholder/agency chair, and so on--it seems to me a sound policy or norm that spouses of high-level judges, whatever the gender of either member of the relationship, should not be involved or active in politics at all. That certainly includes high-level partisan activity, and may extend more broadly to other work, such as high-level governmental work. Again with all due acknowledgment, that policy should apply whether or not such a policy stymies or stifles that partner's career, aspirations, calling, or passions. And it should apply whether the particular example is, in the eyes of the beholder, particularly gross in nature, or whether it is more conventional and commonly accepted by the professional class--say, the difference between texting the chief of staff and invoking the "Kraken" on the one hand, and being a conventional interest-group lobbyist, or attendant at various DC weekly meetings of public and private political forces, or professional apparatchik who works on increasing the flow of money to parties or mainstream candidates, on the other. 

5: We need not make it a personal thing. Indeed, there are good reasons not to, since our tendency to be guided by our own partisan identifications may lead us to condemn some such associations and excuse others, on the basis that Judge X is incapable of ruling impersonally but Judge Y would never dream of being influenced by his or her spouse's activities. The question has very little to do with the person of the judge and his or her capacities. Nor would I necessarily frame it in terms of recusal and the appearance of partiality. I think of it in terms of the judicial office. I've written (following some of the historical material in Philip Hamburger's book on law and judicial duty) that we should think of office much less in terms of power and much more in terms of duty and obligation. The power attaching to an office is an incident of that office, and dependent on and inseparable from the duties and obligations of that office. To be sure, only the officeholder and oath-taker truly occupies and personifies the office and takes on its burdens. But I worry that such a relationship, in which the judge's spouse is engaged in highly partisan work, publicly or privately, harms the honor and integrity of the judicial office. This is a somewhat old-fashioned and perhaps outdated or archaic view. But that's not the only reason to favor it. To the extent that our greatest crisis in American civic life is, as I believe it is, an institutional crisis--not just failures of and within institutions, or even a public loss of trust in institutions, but also a failure to take institutions seriously as such--the kind of conduct I'm talking about here is deeply corrosive of both institutions and trust in those institutions, and perhaps also corrosive even of the office-holder's view of his or her own institution.

6: The judge in such a situation must urge his or her spouse to cease engaging in that activity. Any person in a relationship knows that for all sorts of reasons, there are things we could not imagine asking of a partner and would not ask of them. We know too that there are things we might be willing to ask but that the partner will roundly reject. Where the judge won't or can't deter the spouse from so acting, he or she should step down from the bench. 

7: The policy should apply without respect to the importance of that judge, the importance of their holding the position in their own or others' views (say, the judge is on what the observer thinks is the "right" side of a 5-4 division on the court, with a president and Senate of the opposite party waiting eagerly to appoint a replacement), and, again, the gender of either partner in the relationship. To the extent that our concern with the gendered nature of the general issue, or our own gendered assumptions, begin with a preconception that the judge in any imagined case is a man and the person asked to sacrifice their own career aspirations is a woman, we should remember that the male partner is not locked into the judicial office. A judge, like any other partner in a relationship, is always free to prefer and elevate his or her spouse's interests and desires, including professional and political desires, over his or her own, and thus to step down from judicial office if the spouse is unwilling to give up politics. Judges ought to leave office more often in any event. Believing that the judge's spouse's career or desires come first is an excellent reason to step down. It is, in large measure, the fact that judges seem eager to occupy their offices on a "till death do us part" basis that gives rise to more frequent occasions in which a judge stubbornly refuses to step down "under fire."  

8: There is nothing dishonorable about stepping down under such circumstances. Quite the contrary: it shows greater honor to the judicial office, and to the person stepping down from it, than remaining does. Rather than view such an outcome as a scandal or embarrassment, we ought to view it as the judge doing the right thing. Nor is there anything scandalous or embarrassing about a spouse wanting to engage in political activity or follow some other calling that is, in my view, inconsistent with the spouse's judicial office. Lots of people pursue such callings. The question is only whether that state of affairs can exist or persist while the partner occupies a political office. Nor, finally, would I be inclined to draw conclusions about the views of the judge--that, say, the spouse's political activities "confirm" one's views that the judge is political, and so on. Spouses, professional or otherwise, can and do hold different views and preferences, in kind and degree. (My spouse--a former officeholder, incidentally--is a person of good sense and thus usually disagrees with me.) The partisan surround around such issues, the likelihood of gloating on one side or defensiveness and defiance on the other, are good for fundraising and commentators but bad for establishing a system in which we treat it as legitimate that two partners in a relationship may wish to pursue different careers, one of which is partisan and one of which is not, but treat the honorable thing to do in such circumstances as either having one spouse give up those political activities or having one spouse surrender a high judicial office. We ought to facilitate that honorable choice, not make it more likely that it won't happen.

9: One may worry that such a role creates an incentive to dig up real or questionable stories about judicial spouses and their activities, just as judicial confirmation hearings incentivize senators and interest groups to dig up real or questionable scandals. It's a 6-3 Court, and it may not be an accident that the focus here is on Justice Thomas. (Although Ginni Thomas has engaged in such activities for some time.) Plenty of investigative reporters are pretty obviously partisan, choosing their targets of investigation on that basis and ignoring other subjects that deserve equal attention and investigation; and plenty of people who engage in investigation are not journalists at all, but open combatants working for interest groups or parties or various other entities within the political-industrial complex. So be it. The general rule I suggest is a good one and the right one for preserving the integrity and honor of the judicial office. And it can't be employed strategically by advocates if the rule is observed in the first place, such that the spouse has already desisted or the judge has already chosen not to continue in judicial office.     

Posted by Paul Horwitz on March 25, 2022 at 12:45 PM in Paul Horwitz | Permalink | Comments (0)

Wednesday, March 23, 2022

Alabama Law Review Symposium: "The End of Animus: The Lifespan of Impermissible Purposes"

A substantial number of cases in recent years, including Trump v. Hawaii, Masterpiece Cakeshop, Ramos v. Louisiana, and Espinoza v. Montana Department of Revenue, have raised a question that has received surprisingly little sustained scholarly or legal attention, at least since the initial flurry of scholarship concerning motives in constitutional law. A lot of scholarship on this general subject asks when animus or improper purpose begins: what sorts of actions, speech, or facts trigger a finding of illegitimate purpose? That focus is understandable. But the question that has received much less attention is when animus or improper purpose end. When, given the initial presence of an illegitimate purpose, do later actions mitigate or purge the initial presence of "discriminatory taint?" When should later actions be treated as merely cosmetic, so that it is not too easy for a discriminatory actor to sweep improper purposes under the rug? Conversely, given a broader interest in effective governance and in encouraging proper, reasoned decision-making by political actors--even where that decision-making might lead to a policy result one personally disfavors--could we set the bar for purging discriminatory taint too high?

As Joseph Blocher wrote some time back, "constitutional law does not currently provide a ready answer" to this question. And the answer to that question is relevant not only to the "end" of animus" but to finding its existence in the first place, as Blocher observes: "The questions are deeply inter-related....[J]udges’ willingness to recognize impermissible purpose depends in part on what they see as the costs of doing so. The harder it is for the government to clean its hands, the more reluctant some judges—or, looking into the near future, some Justices—will be to recognize when they are dirty." It's a question that runs across a variety of legal and constitutional areas, including antidiscrimination law, election law, immigration law, criminal procedure, and the First Amendment.  

This is the subject of this year's Alabama Law Review Symposium, "The End of Animus: The Lifespan of Impermissible Purposes," which will be held in person (with both in-person and remote guests) this Friday. The lineup of panelists will discuss the question as a general matter of law and legal theory, with particular reference to equal protection law, and with respect to current controversies in various fields. Bonnie DeCarlo, who has done a wonderful job as Special Works Editor for the Law Review, has lined up what I can call without exaggeration a stellar group of panelists: William Araiza (who will also deliver the keynote address), Dale Carpenter, Jennifer Chacon, Michael Coenen, Andrew Hayashi, Anil Kalhan, Joy Milligan, Louis Michael Seidman, Nicholas Stephanopoulos, and Robert Tsai.

I am tremendously interested to hear what they have to say. I have been thinking about this question for a fair amount of time now, and I am certainly not at a resting point, other than two general observations. First, I do think there is value in thinking about this question in terms of the crucial if oft-lamented question of governance. A reasonable approach here, one that does not too easily reject lawmakers' attempts to purge the taint of animus of illegitimate purpose, can do what constitutional law is supposed to do, at least in an Elysian sense but also according to many other conceptions of its function: channel decision-making to lawmakers and incentivize them to have in place, and engage in, sound procedures of governance, consultation, and deliberation. Second, I suspect that where I land on this question will end up altering my views on the rightness or wrongness of some recent rulings despite my priors on those cases. It might do so for others as well. 

More information about the symposium is available here. The symposium will result in a print issue of the Law Review in due course. I must again praise Bonnie DeCarlo and her Alabama Law Review colleagues, as well as the deans and staff of the Law School, for their hard work in making this event a reality. For all my complaints about "novelty," I think the symposium will actually result in new and useful contributions to an under-covered question. 

Posted by Paul Horwitz on March 23, 2022 at 11:03 AM in Paul Horwitz | Permalink | Comments (0)

Monday, March 21, 2022

A Scandal or an Extremist/Utterly Brilliant and Wonderful

I gather the confirmation hearings for Judge and nominee Jackson begin this week. Ilya Somin argues in the VC today that confirmation hearings, although flawed, "serve useful purposes." Although I am sure he has considered views on the topic, to me this is not quite the right question. One should ask, rather, whether their useful purposes outweigh their detriments. More to the point, I think, is the question whether the optimal mix of pluses and minuses is not achieved by a paper confirmation process without the appearance of the nominee, whose function, it seems to me, is to say as little that is interesting as possible as briefly as possible while offering the Judiciary Committee the opportunity to say nothing interesting at all at much greater length. There is also something to be said for the power of the polite, disruptive "no." As I've said before, I think the whole pattern of norms and expectations and power relations--including those between the White House and the nominee--would be well served if at least one nominee would decline to appear and invite the Senate to judge his or her merits on the basis of the extensive nomination materials that are filed.  

In any event, all this is a motivation and excuse for me to pull something out of deep freeze. Spurred by an early post of Howard's several weeks ago, I wrote a post on what will happen in this or just about any other confirmation process for a Supreme Court justice--"process" being perhaps the operative word, since only a very little bit of it happens in the confirmation hearing itself. I'm not sure that much that I've seen in the coverage, which I've looked at only spottily, requires significant changes to what I wrote in the first week or two after Jackson's nomination, although I've added a note here and there. It's unduly lengthy, for which I'm only semi-apologetic. I wanted to collect all my thoughts so I could, in effect, get rid of them and worry about other things. Here goes.

* * * * 

I have not read more than the first sentences of Howard's post below, but they spur me to do something I have been meaning to do for the last few days: Discuss the positions taken now and that will be taken through the culmination of the confirmation process for Judge and Supreme Court nominee Jackson.

I do so now [that is, a month or more ago] because I think it is now, when I--like most of us--am mostly ignorant about Judge Jackson--that I am most likely to say something accurate, measured, honest, and consistent about her confirmation process. It is understandable that people who are politically engaged or hyperattentive (or, possibly, addicted) to commentary on current events, or whose living and sense of self depends on believing in a set of myths about the value of transparency, the power of reason, the pertinence of facts, and so on--in short, law professors and the commentariat--will think that more information is always better and that their judgment necessarily improves as they learn more. But it seems to me that at least in this area, ignorance and a certain kind of naive cynicism are underappreciated, as are the downsides of "engagement." It is certainly important for one's understanding to know the quasi-official grounds on which senators are permitted to vote, the terrain on which they operate, and the moves they will make accordingly. Beyond that, however, for reasons suggested below, actual facts may just get in the way; more than that, they may serve as incubators of bad faith. The more we (think we) know about Judge Jackson, I venture to suggest, the more seemingly particularized (although, really, mostly ritualistic, reflexive, and strategic) but less wise, sound, and instructive our discussion of her candidacy will be. Of course, as facts come in and debates arise, I, like others, may feel moved passionately to intervene and offer some further argument. If that happens, you shouldn't trust me--or others; or, perhaps, yourself.

Because I find it all somewhat interesting and also want to purge myself of opinions now so I can use my time more productively than actually paying attention to the proceedings and generating opinions about them, I develop my points at great length below. But in brief, I would suggest the following general prediction, which is more important than the facts or "facts" that will be slotted in consistently with them. Sometime between now and the end of the process, Judge Jackson will either face a "scandal" or be revealed as an "extremist," or both. Sometime between now and then, she will also stand revealed not as an acceptable nominee who can do the job, but as a secular saint of virtually unsurpassed brilliance, empathy, or both. The stakes may start out as low, but by the end they will be world-historical. None of this need be true. Nevertheless, some or all it will be fervently believed, even by people who didn't believe these things at first. And one more, perhaps less frequently spotlighted point: Many of the moves that will be observed or complained about during the post-nomination process will also have occurred, but mostly intra-party, during the pre-nomination process. Although it is understandable that we tend to focus on bad, or bad-faith, arguments made by the other side (whatever or whichever one that might be), versions of many of them will have already been employed in intra-fraternal debate about whom to nominate--and then quickly tossed down the memory hole.  

The longer version follows.

 1: For the most part, the most pertinent reasons to vote for or against a Supreme Court nominee--and the actual reasons why most votes will be cast--are forbidden reasons on which to publicly ground a vote for or against a Supreme Court nominee. Unrealistically, one could put this down to a deeply considered view about what advice and consent require. More realistically, one could put this down to a genuine but shallowly considered and vague sense about what advice and consent require. There is also very little payoff, except in honorable conduct of one's office and fulfillment of one's oath, for devoting time and effort to coming up with a detailed and consistent policy on the topic, not least because one might then feel obliged to follow it. Really, a reasonable senator with an eye to his or her own interests just needs a sufficiently plausible and sufficiently publicly acceptable reason for voting. To the extent it reflects the senator's actual view, I would prefer to have a senator vote openly for or against a judicial nominee because that person is being appointed by the wrong president, or because the nominee may be wonderful but fails a single-issue litmus test, or because it's Tuesday or the coin came down tails, or just because. Some of these positions might fail whatever the constitutional definition of advise and consent "is." But I'm not sure that voting for a different reason and then bullshitting about it passes that test either, and at least a candid partisan or arbitrary vote would clear away the BS and provide for political accountability. In any event, the current state of affairs, broadly speaking, is that "she's a Democrat" or "he's a conservative," simpliciter, are not generally treated as adequate fodder for the senator's floor speech or press release or tweet.

2: One might add to that a second problem: given our credentialist and bureaucratized, professionalized approach to Supreme Court nominations, most of the candidates will already have been confirmed to a prior federal judicial office. This limits the politically acceptable range of options for justifying a vote against a nominee, especially but perhaps not exclusively for senators who voted to confirm the nominee to the earlier office. Even for those who voted against the nominee the first time around, the senator may want, not just to say "I'm voting against--again," but to find a way to move the needle of both public opinion and the vote in the chamber. Although I think the argument is silly, a senator is permitted to say something like, "That was just the DC Circuit. This is the highest court in the land." Sometimes they do. But it might not provide enough of a cushion and certainly doesn't provide much political momentum. Nor can they say, no doubt accurately in many cases, "I confirmed him/her to a lifetime appointment of immense gravity as a package deal, or to secure agreement on something else, or because I'm fine with unreflexively taking the party line on lower court appointments, or because I think he/she is a fine lawyer and was comfortable with his/her sitting on a lower federal court, especially given that moving from the appeals court to the Supreme Court is chancy even for those identified as potential nominees. But it was understood that all bets were off for Supreme Court nominations." This seems like a perfectly sensible justification. But it's too inside-baseball and is unlikely to change anyone else's mind. Of course one response to this is to tighten the screws for every judicial appointment, or for confirmation of a possible future Supreme Court nominee to any prior job. And we do see this, of course, and not necessarily to anyone's benefit. But, again, actually getting a nomination to the Supreme Court is chancy even for serious prospects, and it's reasonable that the willingness to cut deals or otherwise accept the confirmation of that person to a lower court will operate according to a different cost/benefit calculus than will confirmation to a Supreme Court seat. 

3: Given the narrowing of justifications that are acceptable under current political etiquette, and the frequent fact of prior confirmation to a different judicial office, the best bets, or at least the standard public positions, for rejecting a Supreme Court nominee amount to two: "Scandal" or "extremism."

A) Scandal: The nominee is fine, checks the credential boxes, is widely admired. I even voted for her last time around. But now that we have learned that she started that forest fire, or murdered those folks while she was in college, or whatever the scandal happens to be, forget it. Alternatively, now that we think it might be the case that she did something terrible, why take any chances? Fill in the usual rote invocation of "grave doubts" or "concerns" or whatever macro the staffer uses in writing the statement. The benefit of scandal is that it renders any prior confirmations irrelevant. It captivates the public, or some portion thereof. It only has to be plausible ("grave doubts"), not proved. And while it might not change the final vote, it allows the investigation process to be drawn out--twice: once in the protracted search for scandal, and again if something turns up that is close enough to squeeze out a case for further investigation and/or hearings--damages the appointing party and president, and, far from incidentally, is a fundraising goldmine both for the senator and for all the interest groups the senator might want to please or enrich. "Scandal" is also a conveniently variably defined term, although I suspect the relevant standard has tightened over the past 30 or so years. (And politically ambitious people now know to make sure the nanny's Social Security taxes are paid up.) In any event, a whiff of scandal, or a lesser scandal, may serve as sufficient grounds to justify delay and more digging, in the hope something worse will turn up. 

B) Extremism: Not everyone has lived a life filled with what count politically as sins, alas. (Although I admire most of the people I have met who have lived lives of conventional rectitude, I'm not sure we're better off with such a standard. Within limits, there's something to be said for eccentrics, freaks, and mild rogues--even as judges or justices. And, of course, what counts politically as a sin is very different from the actual scope of sin. It is a "scandal" to have cheated in law school. It is not a "scandal" to succeed honestly at law school, have a brilliant career, get a job teaching at a fancy school, and use one's wealth and position and connections to ensure that one's children also go to fancy schools and get fancy jobs, including at the same institutions. Heaven forfend.) In the absence of even a plausible and variable case for scandal, the next best bet is extremism: Of course I would vote for a judge nominated by a president of a different party. I only think about the merits. I have voted to confirm plenty of judges nominated by this president! But this nominee is too extreme. This was roughly the Obama line during his tenure in the Senate, but of course many use it. It has the advantage of sounding reasonable and thoughtful and occasionally being accurate. But its greatest advantages are political acceptability, variability, and opportunity. There is no definition of extreme. Nor is there are a threshold number of positions or decisions that must be taken or decided before one officially counts as extreme. In a pinch, one outlier view will do. Better yet, one outlier opinion will do--and given the trend of appointing Supreme Court justices with prior federal judicial experience, one can usually find that one opinion, preferably one whose facts make for good copy. ("Merely because some little old statute duly passed by Congress had a clearly stated deadline and no provision for exceptions, she was willing to deny poor Timmy access to lifesaving medical treatment! Is that the kind of person we want rendering judgments on the highest court in the...?") Even without a decision, if one is lucky enough to have a nominee with a record of academic legal writing, one can still get to extremism. ("Baby selling?")

I would much prefer a senator to oppose confirmation on the basis that a nominee is a "liberal" or "conservative" than because the nominee is an "extremist." Partly it's because the standard is clearer, and partly because it's more honest and conduces to more honesty; if "liberal" or "conservative" were sufficient, the senator would have less need to turn or distort a hard or odd or unusual case, or an easy case with terrible facts, into an "outrage." But there are other reasons. First, as with personal eccentricity versus clear, conventional, rather rigid rectitude, a hunger to avoid "extremism" or for providing any basis for an accusation of extremism encourages the advancement of the dull party-liner or clever trimmer over the occasionally terribly wrong but also brilliant and independent mind. In nomination-world, we all cast ourselves as the staid police colleague in the movies who dots all the i's and disdains that one "maverick" detective who, the rest of the time, we think of as the hero. Second, and admittedly not without basis, it fails to sufficiently appreciate the possibility that one's office affects one's work. The academic who never takes or so much as muses on an "extreme" position for fear of it affecting later advancement is failing at his or her current office; and the one who is willing to advance such positions may understand the judicial office as differing considerably in its duties and constraints from that of scholar. The lower court judge who duly and loyally, if dully, follows precedent in a case with awful facts may view the office of a lower court judge differently than that of a Supreme Court justice.

Regardless, scandal and extremism are the two most essential ingredients of a judicial nomination process, and whether they are real and serious (which surely happens) or more dubious, one or the other will turn up and be invoked. Other critical arguments will be invoked. Some of them will be arguments about something else entirely, arguments for which the nomination merely serves as a convenient platform. (I gather that a television celebrity demanded that Jackson's LSAT scores be divulged. I assume the goal of that was to make hay on the subject of affirmative action, although that strikes me as irrelevant to any concerns about the nominee herself). Senators will talk about abortion, Court-packing, religion, empathy, balls and strikes, and so on. But few if any of those are likely to alter a party-line vote. Neither will extremism, and scandal today will only rarely alter anything. But they are the only acceptable vocabulary that is left for trying to move the needle as long as we persist in excluding most of the actual reasons to vote for or against a nominee from open invocation by both those doing the voting and the attendant lords who engage in commentary and fundraising. 

[So far as I can tell, "extremism" has been the approach here, and it has focused on Judge Jackson's pre-judicial career, with the silly argument that she represented terrible people as a public defender. Since I'm not the constituency for such an argument or for those making it, I can't say how effective it has been. It does not seem to me to have much traction, and thus has mostly served--in the way that "too extreme" arguments generally do--as a politically sufficient justification for a "no" vote and for fundraising and speechmaking around that vote without having to say "I wanted a liberal/conservative judge" or "I oppose anything a President of another party does." Surely that was exactly the purpose of the frozen trucker case in the Gorsuch nomination.]

[I wrote above, "Many of the moves that will be observed or complained about during the post-nomination process will also have occurred, but mostly intra-party, during the pre-nomination process. Although it is understandable that we tend to focus on bad, or bad-faith, arguments made by the other side (whatever or whichever one that might be), versions of many of them will have already been employed in intra-fraternal debate about whom to nominate--and then quickly tossed down the memory hole." This line of extremism argument serves as a fine illustration. Those who think the "oh my God, a public defender actually represented accused criminals" line demonstrates the intellectual flaws, dishonesty, or general awfulness of those making it might remember that one of the criticisms of another prospect for this seat that was heavily if more quietly pushed within the Democratic party/interest-group complex was "oh my God, an employment lawyer who represented employers." Unlike the public defender argument, which will likely not alter the vote, it is entirely possible that the "she represented the wrong side" argument convinced President Biden to pass over Judge Childs, if only to be consistent in this administration's policy of truckling to interest groups who can help in losing gubernatorial and midterm election races.]   

4: On the other side, one can expect that supporters of confirmation will not be content to call the nominee good, fine, acceptable, okay, plausible, or anything like that. Most nomination and confirmation rituals involve someone calling the nominee the most qualified possible candidate, and every such process involves public commentary rightly scoffing at the very idea of a "most qualified possible candidate." I think the scoffers are right. But the pats on the back for making this point should soften in light of another phenomenon often observed among the very same scoffers. That phenomenon is what we might call the greatness inflation of the nominee. Not unlike bankruptcy, it will happen gradually and then suddenly. The gradual nature may have something to do with the time it takes to gather and disseminate inspiring facts and for a standard narrative to solidify; it may also have to do with the fact that the process usually begins with several possible nominees, at least a couple of whom are equally popular or acceptable, so that everyone, the eventual nominee included, starts out at the same basic level: equally and merely terrific. Once the nomination is official, however, greatness inflation process sets in.

Given the default "realist" position that multiple people would be good picks for the job, and the realist fact that contemporary nominees all have more or less the same elite credentials, one would think it would be awkward or unnecessary to inflate the greatness of the nominee. Any number of factors weigh against this, however, even for those who have some acquaintance with the judge and his or her record and can assess it fairly. The most obvious is the push for confirmation, which feels urgent to many even when they also believe everything will just come down to a party-line vote and even when the numbers in the Senate are comfortably in favor of confirmation. (It would be nice, if unimaginable, to see a confirmation process where the vote is sufficiently solid that the senators could simply call the nominee "a reasonable pick" or "a decent choice.") Another, related to that but with some twists of its own, is the ego and ambition of the person offering the praise. Those associated with the judge may want to burnish and publicize that connection. Members of the academic establishment might want to establish their bona fides and encourage a relationship with the Justice, in the same way that beat reporters will run a "source-greasing" story that praises some potential source for purposes of future access. Supreme Court advocates have excellent reasons to do the same thing. Many people just like having bylines on op-eds in major newspapers. 

Whatever the reason, the nominee will soon go from "a plausible candidate" to something closer to genius and sainthood. [I cannot say how much this has happened with Judge Jackson. I note that the Times has such a story today, and that it ran a "She's a super-mom too!" op-ed a while back.] 

5: What is perhaps most interesting about all this is that although it can all be described as a matter of strategy and tactics, mixed in with a certain amount of sincerity but resulting in more or less the same arguments made each time regardless of the nominee, at least in a heated confirmation process all this will become a matter of deep belief and conviction on the part of the people making or responding to these arguments, or at least on the part of the audience for these arguments. People who quite reasonably did not give a damn about the nominee a few scant weeks ago--because they had never heard of him or her--will care deeply about that person and believe whatever the standard line is with great fervor. One would think that after a few rounds of this, one would see the pattern and refuse to be used, to have one's strong feelings manipulatively engaged, in this fashion. But confirmation hearings, like other political events, are like tearjerker movies. You can see the strings, you know the filmmaker is pulling them with an eye on the box office gate and the opening weekend, you know the music and the lighting and the dramatic pauses and the actress lying the hospital bed are all tropes designed to manipulate your emotions. You may resent it. But the tears flow just the same. 

[I would have liked to develop this point more, but will let it go in the interest of timing, having already sat on this post for some time. If a last-minute "scandal" were to emerge, I suspect we would see it happen here. But so far, there has not, I think, been the same level of emotional engagement in this nomination, perhaps because of events elsewhere, which help place this event in a proper perspective, or perhaps because the nomination will have little effect on the vote count on the Court, or because the votes seem sufficiently clear, or because the downsides of going nuclear over this nominee are too great. I can't say. But the phenomenon is one I find fascinating, and certainly one we will see again, particularly in the case of a nominee who is replacing a justice with a different set of views or votes. Our capacity to convince ourselves that we care deeply about something, and to be made to feel deeply about arguments that we know are largely rote and strategic--including the arguments we are making ourselves--is perhaps the greatest weak spot of even ostensibly sophisticated and knowledgeable individuals, who, when it comes to politics and culture, are just as susceptible as the audience at some Hollywood weepie. Again, I think we would be much better off if senators did not spend their time looking for scandals or extremism and simply announced their votes openly on purely political, or political-substantive grounds. But as long as that's not a permitted move, I am not convinced that more knowledge and more information as helpful to the process as we are wont to think.]      

Posted by Paul Horwitz on March 21, 2022 at 11:03 AM in Paul Horwitz | Permalink | Comments (0)

Saturday, March 19, 2022

Compromise Culture

Successful newspapers and commentators, including academic commentators, have a knack for writing on-point, intelligent, even more or less important things about current events, provided always that they remain conventional and conform to the spirit of the times. In doing so, they have an equal and corresponding skill, one that is just as vital to their success and prestige, at leaving other large and potentially uncomfortable questions off the table. 

A case in point is the coverage--somewhat spotty depending on what you choose to read--of mainstream cultural institutions' sudden desire to cut ties with Russian artists (and, sometimes and wholly absurdly, Russian art). Most of these decisions, like many culture-war decisions at universities, can properly be read as business decisions, responding to fears about the reactions of paying customers; but where reason and calculation hold the reins, passion and sincerity come flying close behind, and no doubt sincerity has accordingly accompanied some of these decisions. A fine example is the recent actions of the Vancouver Recital Society. The artistic director of the Society told the press she has been trying to book Russian pianist Alexander Malofeev for six years. (Malofeev won major international awards in his early teens in 2014 and 2016.) The Society then announced that it was cancelling Malofeev's August performance, stating, "We at the VRS cannot in good conscience present a concert by any Russian artist at this moment in time unless they are prepared to speak out publicly against this war."

Which he then did. The Society naturally responded by confirming that the performance was canceled anyway. Inevitably, it described its reasons as "complex and nuanced." The new statement acknowledged the obvious: that it is hardly costless for a citizen of an authoritarian regime to make such statements. It then offered a suite of reasons to cancel the performance regardless of anything Malofeev might say about the invasion: 1) sympathy with a Ukrainian staff member with family still in the country; 2) "grappl[ing] with the notion that even one cent of the proceeds from a VRS concert would go back into the Russian economy"; 3) the worsening situation in the Ukraine, which seems like the kind of "the situation has [predictably, and thus mostly irrelevantly] changed" makeweight that people and organizations often offer; and 4) a fear of demonstration or heckling, which would cost money to fend off. (I am not in agreement with some of what Howard writes on these questions. But it is at least true that one of the most important distinctions between mere heckling and a heckler's veto is the resources--and, centrally, the will--of the institutions that manage the space involved. Most "heckler's veto" cases at law schools and universities are a joint enterprise between the protesters and the administrations of those schools.) 

I am unaware of any defenses of the VRS's actions. I am aware of some criticisms of it. To the extent that the VRS was not lying about community sentiment, presumably there are people eager to have Malofeev's performance canceled. Since I am not on Twitter, I don't know whether there are full or roundabout defenses of Malofeev's cancellation there, but I feel sure they can be found there. Just about any opinion can be found there. But of course the VRS's actions don't stand alone. Everyone's doing it. Predictably, the discussion around such events has taken place within the conventional contemporary framework of denunciations and defenses of "cancel culture." Defenses of cancel culture by people operating within common convention usually are not direct defenses, but debate-society approaches: minimization, differentiation, distinction, argument by definition, distraction, and so on. But they are defenses and they are out there. And this is the standard frame within which the contemporary commentator of due standing is expected to conduct the argument about Russian art and artists and Western arts institutions.

What is interesting to me is not the current debate or some of the current decisions. Many of them, like the VRS's choices, are simply transparently silly and thus hardly merit much discussion. What I find much more interesting is, to point back to the history above, the six years during which the VRS was seeking eagerly to schedule the same Russian artist--presumably because he's good, and famous, and the VRS knows it will be rewarded for the appearance of a good and famous artist. So far as I can tell, little or none of the "cancel culture"-framed discussion focuses on the six or sixteen years leading up to the current moment.

Those were the years of Vladimir Putin's second, third, and fourth presidential terms and second premiership. As a Citizen Kane-like newsreel narrator might solemnly intone, "Those were busy years for Vladimir Putin." They include, inter alia, the arrest of Mikhail Khodorkovsky and seizure of his holdings for distribution to the state and its cronies; the assassination of Anna Politkovskaya; the organization of paramilitary groups to support Putin; the passage of a law against "gay propaganda"; the annexation of Crimea and Sevastopol; attempts to intervene in the 2016 election in this country (which, in fairness, Putin announced may have been conducted "not even [by] Russians, but [by] Ukrainians, Tatars or Jews [ ] with Russian citizenship"); the poisoning of Sergei Skripal; and, one imagines, one or two other things. While these events occurred, efforts to secure a performance by Malofeev in Vancouver, and similar efforts by countless other Western arts institutions, proceeded apace. 

If one had to choose, I would say that the current moment is relatively boring compared to the myriad choices made by Western institutions--artistic, academic, financial, financial-artistic (Hollywood is keen on foreign markets and, as with China, has made many deals with Russian distributors and filmed many movies there), cultural, political, and so on--over the past 20 or so years. I am not criticizing those choices as such. But they were hardly made behind a veil of ignorance. To the extent we think of any of these institutions and individuals as making and being capable of making moral choices--and they certainly wish to be understood in this way--what they did was what most of us, in smaller ways, do every day: they made compromises and lived compromised personal and institutional lives. In some cases they justified these choices and believed in those justifications (and not without reason). In some cases they sternly maintained a distinction, in a way that many of the same institutions currently are not, between the state and the individual, although they must have been aware that they could hardly tell, in an authoritarian and oligarchic state, in what way the artists or companies or other interests they were chasing after were or weren't complicit in or supported by or enjoying wealth and prestige within that regime. In some cases they chose other things to be concerned about when making choices: say, government policy in Texas rather than in Russia, or rejecting tobacco company sponsorship while taking money from companies using mistreated foreign laborers. In still other cases, they no doubt followed Billy Madison's sage advice: "Don't think about it." In short--and, again, like most of us, short of saints and recluses--they weighed and balanced, including weighing and balancing their financial interests and public standing, and made compromises, moral and otherwise, including the compromise of economizing on one's time in deciding which morally freighted issues to learn about and thus to care about.

These questions are, I think, more interesting and more difficult than questions about what to do today or tomorrow in response to immediate events. Or perhaps they should be thought of as continuous with those decisions and as casting light on them, and on whatever decisions we will argue about passionately one or eleven years from now. More generally, discussions of "cancel culture" (a phrase I don't much care for, despite my concerns about it, because reducing anything to a bumper sticker dulls the brain) would be more interesting if they were understood not as discrete and distinct moments or events, but as taking place within a much larger and much less unremarked-upon--partly because they are much vaster, and partly because to do so is much less comfortable to the ostensibly righteous participant in those debates--compromise culture. The facts of life of compromise culture are, I should think, no less important from a moral and institutional perspective than our responses to "cancel culture." And because they are less talked about but more universal, enveloping all of our choices, they may be much more revealing of our actual moral status and moral decision-making process. Indeed, as I think I've suggested, the fact of our not talking about them (in the same way, to pick a pet issue, that legal academics love to talk about "political economy" and "economic inequality" and other forms of inequality but are virtually mute about social class) is itself interesting and revealing. Again, commentators operating within convention say a good many interesting and valuable things. But often the really interesting questions lie in the aporias--in what falls outside the conventions.

I dare say one could make the same observation about recent law student efforts--the latest in a long line, albeit similar efforts have been more frequent and visible in the past few years--to pressure elite law firms to cut ties with Russia, which presumably will culminate in efforts to have law schools bar non-compliant firms from participating in on-campus employment efforts. I have nothing against such efforts as such, and absolutely nothing against law students who do not wish to work for particular firms for moral reasons of one sort or another. And I acknowledge the short life, so to speak, of the law student qua law student; today's objector was not around for a similar effort on a different issue ten years ago. But, as with previous efforts, what is interesting is not the resolute stand against one client or type of work, but the very long list of clients and activities that, by implication, students engaged in such movements are comfortable with, or at least comfortable not thinking and talking about much or calling attention to. In such movements, what I find interesting is not the push against a particular line of work--say, for tobacco companies--or the consequent debates over whether such movements are more harmful than beneficial. What's interesting is the vast set of compromises, whole- or half-hearted, involved in every other client these individuals are willing to work for, and every other employer the law schools are very glad to welcome on campus. There, I venture to say, in all the apparently unobjectionable clients and ventures and activities, is where the real moral action can be found. And it is no less personally defining for the participant than the official objectionable activity or client. 

Nor, I should perhaps not have to say, is compromise culture avoided by avoiding the big law firm (or, I guess, the concert recital hall) altogether. For, it should be clear, "compromise culture" is a redundant phrase. One might as well just say "culture" and have done with it. Every choice will involve moral weighing and balancing and concomitant compromises. One will represent the accused criminal but not the wrong accused criminal, one side of the criminal justice system (thus keeping the system going generally) but not the wrong side, clerk for the good prestigious federal judge but not the bad one (but not, God forbid, avoid a judicial system, or a system of prestige within it, that one might otherwise choose to question more categorically). One may campaign for the righteous candidate floated by dark money, or work for the righteous nonprofit supported by equally shadowy or questionable wealth or whose mission is shaped by the preferences of the donor market. Some lucky few may hope to avoid various taints, or put up with them just long enough, and end up in the academy. The dictionary definition of "research university" is "a large institution into which vast millions of dollars, foreign and domestic, public and private, flow, one is not entirely sure from whom, whence they came, or where they go, but do try not to worry about it." Next to the modern university, the Vancouver Recital Society is a piker.

That's just life. I do think the mainstream press should cover the current choices that are being made more, and more critically and prominently. But some of that coverage will happen. It falls well within convention, after all. It would be much more interesting if we broke from that frame and paid more attention, and gave more coverage, to the choices made over the past two decades.       

Posted by Paul Horwitz on March 19, 2022 at 01:28 PM in Paul Horwitz | Permalink | Comments (0)

Thursday, March 17, 2022

Bromwich on the Current Awfulness

It's paywalled, but this interview with David Bromwich in the Chronicle of Higher Education is interesting and eloquent. (The Chronicle is decidedly a mixed bag, but the Chronicle Interview feature, which is conducted regularly by Len Gutkin, is one of the most consistently readable sections of that journal.) Among other things, Bromwich speaks about the current willingness of university administrators to "acquiesce to a social tendency--a wave of opinion and emotion"; argues that "the consensus on what constitutes good speech, speech that lends itself to the hygiene of the culture, has become too sure of itself"; notes "the absurd exaggerations of politeness"--and, as he notes, silence--"that you can see in classroom behavior over the last few years"; correctly states, about reactions to a recent op-ed from a University of Virginia student, that "the claim that what she’s describing doesn’t meet anyone else’s experience is just disingenuous"; criticizes the growth of a conception of the university in which the guiding assumption about its mission is that "it should be socially improving, interested in creating a good society or a model of a good society"; and notes that the way in which academics have taken to Twitter "simply goes against the vocation of being a scholar:"

I know of faculty, both here and at other universities, who are major personalities on Twitter. They tweet links to articles, and they tweet instant reactions, off the cuff, sometimes witty and sometimes not. And there is some demagoguing. On occasion, they are compelled by an inward or outward pressure to delete their tweets.

To me, this simply goes against the vocation of being a scholar. Let’s not be too high and mighty, but still — we are understood to be people who deliberate, who take some time to get at what we believe to be the truth. The whole ethic of snap reactions goes against that. In the long run, it’s going to reduce the prestige of professors. It makes us more like everyone else, which a lot of academics have wanted to be all along. That’s part of the problem — the idea that we should try to erase the distinctions that separate university life, academic life, from society.

Of course I am not interested in whether the prestige of professors goes up or down. If I had to choose only one, I would probably prefer down. But the point about temporality I find valuable and well-stated. It is a fundamentally bad thing, and a personally and disciplinarily corrupting one, for academics to adopt the time frame of social media. And Bromwich is right that it is a mistake to erase the distinctions between academic life and society--not because we should be above it or because we are outside it, but because we have a specific calling to answer to, a specific job to do, and that job is something, not everything. There are many things academics are free to do in their off-hours, and many other places they can work if they decide those are the activities they would rather dedicate their lives to. 

A note on Bromwich's point about overconfidence about what constitutes "good speech," and specifically the word "consensus." Academic consensus in general is, I would venture, both a dangerous thing and a very, very common one. The academy, like the New York Intellectuals that Harold Rosenberg was referring to with his aperçu, tends to be a "herd of independent minds." It is sufficiently consensus-oriented that even a relatively obvious and simple point of disagreement can seem like a striking bit of novelty and brilliance; and conversely, sticking with the consensus and making appropriate obeisance to it, while not a path to success, is the strongest hedge against failure. The problem is not agreement as such; saying that two and two don't equal four is novel but idiotic. It's the freezing power of consensus, the myriad ways it is enforced, and the manner in which it moves easily from tentative and sensible agreement, in lieu of a closer independent look at an issue, to casual, cheaply attained overconfidence. Anyone who has witnessed a conference in which four or five éminences grises expound as one on some common view, as if to think otherwise would be a sign of insanity, is familiar with the phenomenon. Although there are people and places in which treatment of this issue is serious and considered, it seems to me that overconfidence about what constitutes good speech is a common characteristic of most general discussions of or references to "disinformation" or "misinformation."   

Of course I don't agree with everything Bromwich says here, or in his other writing. It's still a fine read. 

Posted by Paul Horwitz on March 17, 2022 at 11:04 AM in Paul Horwitz | Permalink | Comments (0)

Monday, March 07, 2022

University of Alabama School of Law Seeking Assistant/Associate Legal Writing Professor Applications

I am pleased to announce that my law school is seeking applicants for the position of Assistant/Associate Professor of Legal Writing. The notice follows below. If you have questions, feel free to contact Prof. Russell Gold at [email protected]. Legal research and writing is, as I often tell my students, the most important course they take in law school. 

Assistant/Associate Professor of Legal Writing

The University of Alabama School of Law is seeking applicants for the position of Assistant/Associate Professor of Legal Writing. This position has been created to expand and further strengthen the Law School’s program in legal writing. The successful applicant must demonstrate a strong commitment to contributing to the growth, development, and improvement of the legal writing program. Working under the supervision of the Law School’s Director of Legal Writing, our legal writing faculty collaborate with colleagues on core assignments and on teaching strategies but otherwise select and develop their own materials and lessons.

The non-tenure-earning position will be on a contract basis with an initial three-year term and the possibility of additional three-year terms. The successful candidate will teach two sections in the first-year program and will also develop an upper-level writing or drafting course and teach that course twice during the three-year contract. The successful candidate, in consultation with the Associate Dean of Academic Affairs and Director of Legal Writing, may be eligible to coach a moot court team for additional compensation.

Applicants must have a law degree from an ABA-accredited law school and a strong academic record. Applicants must demonstrate effective legal writing skills and should be admitted to and in good standing with a state bar. Preference will be given to applicants with four or more years of legal experience and to applicants with teaching experience. 

All applicants must apply for this position through the University of Alabama’s job site at https://facultyjobs.ua.edu/postings/50013. Applications must include a resume, cover letter, list of three references, and a writing sample (which can be uploaded via the “Other Document 1” section). Applications will be received until the position is filled, but preference will be given to applications received by April 1, 2022.

The University of Alabama is an Equal Employment/Equal Educational Opportunity Institution. All qualified applicants will receive consideration for employment without regard to race, color, religion, national origin, sex, sexual orientation, gender identity, gender expression, pregnancy, age, genetic or family medical history information, disability, or protected veteran status, or any other legally protected basis, and will not be discriminated against because of their protected status. Applicants to and employees of this institution are protected under Federal law from discrimination on several bases. Follow the link below to find out more.

“EEO is the Law” https://www.eeoc.gov/sites/default/files/migrated_files/employers/poster_screen_reader_optimized.pdf

“EEO is the Law” Poster Supplement http://www.dol.gov/ofccp/regs/compliance/posters/pdf/OFCCP_EEO_Supplement_Final_JRF_QA_508c.pdf

Posted by Paul Horwitz on March 7, 2022 at 11:15 AM in Paul Horwitz | Permalink | Comments (0)

Saturday, February 05, 2022

Crazy if Wrong, Crazier if Right

I found only thing startling about this story reporting that a former clerk to Judge Ketanji Brown Jackson "embarked on a Wikipedia editing spree over the past week, bolstering the page of his former boss while altering the pages of her competitors in an apparent attempt to invite liberal skepticism, according to a statement from his fellow clerks." It certainly wasn't the act itself (for which no sensible or charitable person would hold the judge responsible). It was this bit: "The most recent changes to Jackson's page appear to be an attempt at swaying left-leaning opinion in her favor. On Jan. 30 and Feb. 1, user H2rty made significant changes to the body of Jackson’s page, cutting a reference to Jackson’s position on an advisory board of 'a Baptist school.'” It takes a remarkable level of youthful hubris and immurement in some kind of epistemic bubble to confidently conclude that deleting a reference to a judge's service to a Baptist religious organization would improve her chances at nomination, let alone confirmation in a divided Senate or wider electoral benefits. Worse still is the possibility that the judgment was accurate insofar as it reflected a prediction of the views, not of left-leaning or liberal public opinion, but of left-leaning or liberal interest groups. I don't think even that is correct, although if it were it would reflect badly on the political acumen of those groups and suggest the dangers of being generously well-funded by a few wealthy private donors instead of having to appeal broadly to the public for financial support.

I think of it mostly as youthful error. But the episode may also serve the same function that law professor listservs do: offering a powerful reminder that some kinds of brilliance are almost directly disproportionate to any kind of skill at reading or predicting politics and may be better as a guide to how to lose elections.  

Posted by Paul Horwitz on February 5, 2022 at 02:53 PM in Paul Horwitz | Permalink | Comments (0)

Thursday, February 03, 2022

"In Tonight's Performance, Warren Rudman Will Be Played By...."

The New York Times has a delightful story today reporting that Rep. James Clyburn, whose vital endorsement is famously linked to President Biden's pledge to nominate a Black woman to the Supreme Court, has a particular candidate in mind--federal district court judge J. Michelle Childs, who is also currently a nominee for the DC Circuit--and is pushing for her appointment. The story calls it "a blatant effort to call in a political favor in the form of a lifetime appointment to the nation’s highest court" and suggests that although the administration is officially considering her nomination, it has also occasioned some pushback. The pushback is best represented, in the story, by its very non-specific, off-the-record, "aides say" nature--and by the more specific detail that some pushback has come from "some progressives and labor activists, who have flagged her work as a lawyer representing employers opposing unionization drives." One may sympathize with those who find it difficult to keep straight the question when a lawyer in private practice--in this case, at the firm of Nexsen Pruet, where Judge Childs became the first African American partner--is or isn't inextricably linked with the legal aims of her clients. The story describes her as being "regarded as more moderate than other candidates Mr. Biden is thought to be considering." Hence, one assumes, the pushback. 

30-odd years ago doesn't seem like ancient history to me, but the analogy missing from the story is to former Justice David Souter, who was heavily pushed for the Court by Warren Rudman and John Sununu--and who was ultimately viewed as a disappointment to Republicans who wanted and did not get a more conservative vote.

If the analogy holds, I say more power to Rep. Clyburn and Judge Childs. Walter Dellinger writes in today's Times that there is "a long and important tradition of presidents taking into consideration the demographic characteristics of prospective justices — including geographic background, religion, race and sex — to ensure that the Supreme Court is and remains a representative institution in touch with the varied facets of American life." Jamelle Bouie the other day opined that it is time to reject the standard-issue Establishment view that "the court is the final rung on the meritocratic ladder for judges and other legal elites." He added, "To the extent that Biden has been open about the politics and political optics of this nomination, I think he’s done a service to the public. The Supreme Court does not exist outside of ordinary politics, and the justices aren’t members of a secular priesthood. Anything that makes this clear, anything that helps bring the court back down to earth where it belongs, is worthy of our support." 

Quite so. The old saying that a judge is a lawyer who knew a governor still holds true. There is little doubt that Judge Childs, as a federal judge and nominee--by this president--for still another federal judgeship, is qualified in a general historical sense. There is plenty to be said for nominating someone who is the daughter of a police officer, who lived in Detroit and in the Deep South, and was educated somewhere other than the same usual one or two square miles of the United States. The fact that her nomination might more nakedly suggest a relationship to straight-up relational and transactional politics is, as Bouie suggests, neither unusual nor necessarily a bad thing. And, as Justice Souter demonstrates (in my view), it can turn out quite well. I personally welcome a choice that brings a "more moderate" judge to the court, if only because it defies the usual and dominant currents of polarization. Most of all, there is always something to be said about making a choice that defies the settled expectations of a small number of political and legal professionals, who are quite sure they know exactly what and who is needed and that they have the whole thing sewn up, in favor of a more Tip O'Neill-ish acknowledgment that all politics, including Supreme Court politics, is local. Hubris being what it is, when Everyone Who Counts is convinced they know who the nominee ought to be and that the stakes have never been higher, and when the interest-group press releases have already been all but finalized and mass-emailed, that is exactly the time to do something else.     

Posted by Paul Horwitz on February 3, 2022 at 07:03 PM in Paul Horwitz | Permalink | Comments (0)

Wednesday, February 02, 2022

Sarat, Law's Infamy

Speaking of self-promotion....!

Anent Howard's post below on the anti-canon, may I note the recent publication of Law's Infamy: Understanding the Canon of Bad Law, edited by Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey. It features chapters by Justin Collings, Sherally Munshi, Robert Tsai, Richard Abel, and Keramet Reiter--and one from me, titled "Fame, Infamy, and Canonicity in American Constitutional Law." Great cover design from the folks at NYU Press.    

Posted by Paul Horwitz on February 2, 2022 at 10:28 AM in Paul Horwitz | Permalink | Comments (0)

Some Side Notes on One of the Controversies of the Day

These days I am affirmatively uninterested in weighing in on the average culture-war controversy, regardless of my views on its merits. In any event, by the time I get around to doing so usually all the obvious points have been made and bones have been well picked over, which just leaves statements of affirmation or solidarity on one side or another--and those really don't interest me. I offer, instead, two side notes on the discussion of Ilya Shapiro and Georgetown Law, repeating once more that they are side notes and that I quite understand that most people with views on the subject are passionate about the the main issues.

1: One aspect of Shapiro's tweets that got less attention, understandably I suppose, is the suggestion that Sri Srinivasan is "objectively" the "best pick" for a current opening on the Supreme Court. I cannot imagine what it means to talk about anyone as "objectively" the best candidate for a Supreme Court seat. Such a creature is a unicorn, not because it's rare but because it doesn't exist. There may be obviously poor and obviously acceptable picks according to the general sense of the legal and political culture of the day. (At least initially. The goal of the politics of the confirmation-and-fundraising process is to paint the nominee as the worst or the best possible candidate, and by the end of that process an astonishing number of people have persuaded themselves that these propositions are true.) But beyond that range there can be no metric that allows us to talk about an objective best pick, in terms of either the "legal" or "political" merits, to draw a weak distinction.

This is not a problem in itself, of course, because being the "best" is not a prerequisite for an Article III judgeship any more than it is for the presidency or most other offices. (If it were a prerequisite, and if there were such a figure, perhaps the President would be better off nominating that person for the district court bench, so that this extraordinary figure could handle the difficult job of intimately affecting people's lives with much less assistance from either counsel or staff. I'm not sure putting the nation's "best" lawyer or judge on the Supreme Court is really an efficient or necessary use of limited resources. The highest or most prestigious office is not necessarily the office that needs the best person; it's just the place that most "best" people are understandably, if unfortunately, eager to get to.) But talking in terms of "objective" best candidates for the office is a problem, I think. It is a problem if the person using the phrase believes it, a larger problem if he or she doesn't but indulges in bullshit language, and a wider problem if it accustoms others to using such language. 

2: One way to think about some of the whole affair is as a reminder that it's not just individuals who are harmed by Twitter and other social media, all the bad habits they cultivate, and all the vicious cycles that eventuate. Nor is it just individuals who are culpable in it. Take the dynamic of major newspapers. They are hemmorhaging traditional readers, traditional advertising revenue, and public trust. They respond in various ways. One is to encourage their reporters to take to social media to promote the paper, their own stories, and themselves, and/or hiring reporters who already have such a profile or are eager to gain one. Another is to focus on newsletters, podcasts, and other subscription features that foreground individual reporters' personalities, and to market those personalities in a variety of ways--an approach that dovetails with the encouragement of social media presence. The reporters--all but the most disciplined and deliberately boring ones, I suppose, but those are not the ones who draw attention and get newsletters of their own--inevitably end up opining, cracking wise, saying something foolish, picking fights or engaging in them, and so on. The quality of the institution declines, and so does the public trust in that institution. The newspaper fires a reporter here, suspends one there, and perhaps issues an official statement paying lip service to the idea that its reporters are supposed to maintain certain limits in how they tweet. All this may be sincere, or damage control, or both. Regardless, it remains heavily addicted to the social-media-personality model. At some point, it is fair to see the institution as being just as responsible for that model's negative features as its positive ones, and as having gambled that a loss of trust and sobriety in the long term is worth it for the sake of hanging on or thriving in the short term. Circuses that put on high-wire acts and advertise the fact that the acts will perform without a net are not trying to kill their performers, but they are selling the exciting possibility of a highly public disaster and so accepting a certain number of foreseeable tragedies. 

Self-promotion on social media is increasingly the coin of the realm for any number of ambitious public-facing institutions--including law schools. Perhaps it is not an institutional focus. But law schools, like newspapers, magazines, political parties, and plenty of other organizations, unabashedly like having prominent people, and a social media presence has become a major component of prominence. Law schools, by and large, like boasting of having someone who is well-known, and part of that means having someone who writes op-eds, appears frequently in the press--and is widely followed on Twitter. (The most frequent rationale I hear from law professors for being on Twitter is "self-promotion.") At least on social media, "prominence" is hard to distinguish from "personality," and "personality" at the margins easily becomes "notoriety." Because social media prominence depends substantially on speaking frequently, speaking wittily or vigorously, and speaking bluntly or provocatively (the two easiest routes to a widely noticed statement of 280 characters or less; I'm sure there are lawprofs who devote their Twitter feeds to long variations on "It's complicated," but I doubt they get the lion's share of the attention), it is a high-wire act. Unlike most circus acts, there is definitely no net. 

I do not think law schools, or their marketing folks, are actively seeking notorious hires. I do think they are as eager as anyone else to boast of having famous people. Georgetown's announcement of Shapiro's hiring emphasized not only his skill and experience, but his status as "one of the premier public commentators on constitutional law" and spotlighted the fact that he "appears frequently on radio and television commenting on Supreme Court decisions and other constitutional matters." The announcement closed, as contemporary press releases often do, with, "Follow the Constitution Center on Twitter at @guconstitution and Shapiro at @ishapiro."

One may be inclined to say, "That's just how things are done today," or to distinguish a law school's marketing and PR operations from the rest of the institution. I'm not sure either statement is accurate or sufficient. (I might add that I often think of "making a splash" as one piece of a decent faculty hire, and I seriously doubt I am alone in this.) Of course none of us are thinking, "We certainly hope our eagerness for institutional public prominence will eventuate in a painful and embarrassing controversy." But we might consider the degree to which our institutions, like many others, are dependent on or addicted to a model in which a certain number of painful and embarrassing controversies are an inevitable and predictable feature--not some unpredictable accident, or unexpected failure on the part of the prominent person one set out to hire, or intrusion on the normal life of the institution from the barbarians outside the gates, but something in which we are actively and eagerly participating and for which we bear our own share of culpability. This is not the world we happen to live in. It's the one we have chosen and continue to choose. 

       

 

Posted by Paul Horwitz on February 2, 2022 at 10:20 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, January 12, 2022

Who Ultimately Runs "Student-Run" Law Reviews? Not Law Review Editors.

Not having read Larry Alexander's article or relevant documents describing the publication offer or agreement or editing process, I am reluctant to say too much about this specific incident. As he does, Paul Caron usefully collects varied commentary here. But it is one of a few such incidents that have come up recently, with others involving the American Indian Law Review, the Washington University Law Review, and--with a slightly different set of facts--the NYU Review of Law & Social Change. (These are the ones that have drawn publicity. There may be others. And it may or may not be that case that there have been many such incidents in the past, but that the controversy-addiction-feeding aspects of social media, and users of social media, have given these incidents more prominence than would previously have been the case.) Some of these involve what we might think of continuity and succession issues between volumes and editors. Others involve what we might think of as changes in view among some law students about what their office as editors of scholarly journals--and it is an office--involves, allows, or demands. That larger category involves a good deal more than just flashpoints around the publication of particular articles, or even public statements issued by reviews or their editors about their aims, although there have been quite a few of those in the past few years. 

I was particularly interested in a post by Michael Smith, linked to by Caron, noting and complaining about what Smith calls "the sport of attacking law review editors." I take no view on most of what Smith has to say in his post, and am not in total agreement with his complaint that professors should not criticize law review editors by name. On the whole I am sympathetic to it. I would not be inclined to do it. It seems undignified and unnecessary much more often than not. And I must acknowledge my suspicion that a good deal of the time such posts and twits, even when they have a point on the merits and about larger concerns, are carried out in a fashion that reflects the awful mixed motives that characterize so much social media activity: not just making a point, but scoring a point, or promoting oneself, or feeding unhealthy controversy, or exaggerating for political effect, and all the other things that make so much of contemporary discourse a cesspool. But some instances of naming a law review editor seem to me more about fairly reporting and documentation than outright attack. And it seems fair to note that to the extent that journals and their editors are busy making public pronouncements of their own, their expectations of privacy may diminish accordingly.

Nevertheless, I am in sympathy with Smith's basic point, beyond my concerns about undignified discourse, insofar as it reminds us that if there is a problem, it lies elsewhere. Legal scholarship, like scholarship in any discipline, is an institution. And, with very rare exceptions, it is not an independent institution. (There is at least one prominent law review that is formally independent. Even there, I don't think it should be viewed as wholly independent of the law school with which it is associated.) Given the odd fact that most law reviews in this country are student-edited, it shouldn't be an independent institution. A scholarly institution is the responsibility of the members of its discipline. That's true in general terms, but also in the more specific sense that a law review is ultimately the responsibility of its law school, that school's faculty, and the review's faculty advisor. At a minimum, if someone is going to go to the trouble of naming the editor of a law review when complaining that it has failed in its duties, scholarly or contractual, that critic should note the name of the faculty advisor and ask for comment from that person. But beyond that, ultimately a law faculty itself should step in--has an institutional and disciplinary duty to do so--if one of its journals is acting in a way that violates, ignores, or weakens scholarly norms. 

Of course what those norms are is subject to the usual contestation. But the ultimate duty to step in and at least temporarily resolve those contests belongs not with student editors, but with the larger institutions that administer the law reviews and that bear responsibility for the state of their piece of the discipline. Were it otherwise, the existence of student-edited journals would be even more absurd than it already is. No doubt that duty can and perhaps should usually be exercised lightly--not deferentially, since there is little basis for deference, but lightly. In the past, when I have been faculty advisor to a journal, I've told the editors that it's "their" volume and  that they are generally free to make their own calls about which articles to publish and about the direction in which they want their volume to go. The editors of one volume may be concerned with "national" scholarship and prestige, while the editors of another might want to place a greater emphasis on scholarship and writers focused on their own state or jurisdiction, and so on. Most of that is fine with me, although I offered advice up front and along the way. But if the editors decided they wanted to run a year of Alexandrine verse, not for any recognizably legal-scholarship-related reason but because they are keen on Alexandrine verse, I would have an obvious duty to step in and say no--and if I didn't, my colleagues and administration would.

I suspect that some potential controversies don't arise, or don't get publicity, or end up being resolved appropriately, because the faculty advisor or the law school itself steps in, quietly, either before the fact or to resolve a problem. That's as it should be. (I gather that in the case of at least one of the journals named above, that's what ultimately happened. And NYU issued a statement on its own behalf and that of the law school objecting to the NYU Review of Law & Social Change's action.) But when we are talking about the controversies that do end up arising and gathering traction, or about larger concerns about law reviews, we should certainly remember that however much autonomy we appear to give law reviews, they are not actually autonomous, and for disciplinary reasons cannot be. Ultimately, they are the responsibility of the discipline, generally through the office of the faculty advisor and in a broader sense of the law school and its faculty and administration, and beyond that of all of us. We may act or talk most of the time as if these reviews are independent and autonomous, but the buck still stops with us. It is at least possible that we should be more hands-on in our disciplinary responsibilities on this front than we currently are. Law reviews and their editors are, at least in this system, free to talk about exciting "new" visions about what legal scholarship should be and do, what positions law reviews should take (if any), and so on. (They're often not actually "new," of course.) But if we as a discipline or as individual institutions think their vision is wrong, or that they have acted wrongly or outside scholarly norms in a particular instance, it's still our job to step in and settle the matter.            

Posted by Paul Horwitz on January 12, 2022 at 10:29 AM in Paul Horwitz | Permalink | Comments (0)

Monday, December 13, 2021

"The First"

Among the most-played tunes on my broken record is my criticism of the "novelty claim" and my fascination with what it says, not about novelty as such--I rather doubt the phrase says very much about that--but about the practice of American legal scholarship: its norms, tactics, motivations, means of advancement and accumulation of prestige, and so on. I thought I'd take a look at the frequency with which the phrase "this article is the first..." or "this is the first article..." appears in law reviews. Here are some results from a search of Westlaw's Law Reviews and Journals database by year:

2021 (to date): 142

2020: 195

2019: 163

2018: 162

2017: 171

2016: 152

2015: 178

2014: 127

2013: 124

2012: 106

2011: 80

2010: 69

2009: 72

2008: 71

2007: 41

2006: 40

2005: 32

2004: 23

2003: 34

2002: 28

2001: 26

2000: 27

1995: 12 

1990: 12

1985: 5

Obviously the whole thing is rather unscientific. I didn't check that each usage was a novelty claim or that it came from a law review rather than from other publications that appear in the database, such as bar magazines. In the aggregate, however, it's rather suggestive. A couple of points:

1) I did do some spot-checking. The further back one goes, the more likely it seems to be that the phrase is not in fact a novelty claim. Take 2003. That year, the two variations of the phrase appear 34 times. But if one removes the noise--phrases, typically appearing in bar magazines and other monthly service publications, such as "this is the first article in a three-part series" or "this is the first article by our new columnist"--the number of actual novelty claims using the phrases goes down to 14 for that year. 

2) As one can see, the growth appears to be somewhat stepwise, with the numbers jumping from time to time and then stabilizing in that area for a while. (With the year not yet out, I am guessing this year's final total will be somewhere between the 2019 and 2020 numbers.) Perhaps some linguistic virologist out there has written about how frequent this pattern is in language in general.

3) My speculations about this phenomenon are just that: speculations. Here are a few. A) Perhaps it's wholly adventitious. B) Perhaps the use of the particular phrase is adventitious, and one could go back and find other phrases, used just as often, that used to make the same novelty claim in different words. It would still be interesting that the norm has hardened around this particular, mechanically repeated phrase. C) Perhaps--but, again, I doubt it--it signals a real change in the amount of novel legal scholarship. D) Perhaps it reflects the growth of interdisciplinary scholarship, insofar as the journals may be printing articles that are the first empirical study of X in a law review or the first to apply methodological tool A to issue Y. E) Perhaps it is mostly a matter of competition for space and prestige, caused by both the torrent of article submissions and the vast universe of law journals of varying prestige levels.

4) If competition for prestige placement is the reason, we might reflect, given the dates, on the influence of three factors. One is the increase in the amount of lateral hiring. Another is the increase in the number of fellowships and other proxy-doctoral/postdoc programs. Both of these reflect the same thing at different career stages: the competition for hiring or advancement. The third is the size and (along some dimensions) heterogeneity and diversity of the legal professoriate, in which sheer numbers mean that names, institutions, and networks only get you so far. 

5) Again following on this point: the possibility that the growth in the standard novelty phrase reflects a competitive move does not mean the move works. I have not checked whether these claims appear more often in the Stanford Law Review or the Podunk Journal of Marine Insurance Law & Policy. Nor do I know whether a novelty claim makes the difference between getting published by the former or the latter. (I am assuming that, according to the norms and prejudices of our profession, placement in the former is preferable to placement in the latter.) I rather doubt it. But perhaps it is possible that a novelty phrase makes the difference, at both journals, between getting read at all and being placed almost immediately in the reject pile. I also do not know whether authors who make novelty claims are more likely to do well in entry-level or lateral hiring than other authors--and if so, whether it is because of the novelty claim as such, or because the presence of the novelty claim shows that they already know how to play the game. 

6) It does strike me as possible that what makes the difference in such a first-stage consideration of an article submission, apart from what ought to be but are not extraneous factors, such as the author's resume, is not the fact that this phrase appears, or even that a novelty claim of some sort appears, but that the author has provided, high up in the piece, a clear statement of some kind indicating why the article is worth reading. That still leaves open the question whether articles editors recognize the various reasons besides raw "novelty" why an article might be worthy of further consideration, or whether they have reduced their culling inquiry to the question of novelty vel non. (Again, apart from influential and improper sorting mechanisms such as resumes, which may dwarf the question of whether or not the article clearly explains why one should read it.) 

7) Apart from competing for prestige placements for hiring purposes, I wonder--another tune from the broken record--what role fellowships have in another sense. I gather that one piece of the fellowship process is the sharing of techniques and tactics, whether from a top-down level by program directors or mentors or horizontally through exchanges of wisdom, lore, and rumors among the fellows themselves. At some point it may not matter whether the novelty phrase works: it is simply part of their acculturation. They use it, and later (alas) encourage newer fellows or more junior scholars to do the same. Perhaps they pick up the idea from younger friends who are on prestige law reviews, and in turn the law review editors there and elsewhere come to expect it. The herd elsewhere inevitably follows suit; as writers, we are not a terribly original or independent bunch. And thus we move from 80 uses to 180 in the span of five years. It is worth thinking about whether all the advice given in such programs is actually all that good predictively, quite apart from whether it is a good or bad thing for legal scholars and their development or for legal scholarship. (And it might be that much or most of that advice is far less important than having the fellowship on one's resume, an article or two in print or on hand, and a raft of inflated references. If so, perhaps fellowship program directors should treat this as a reason to feel liberated to tell fellows to disregard most of the strategic advice they offer each other, or that their mentors offer, and just follow their muse wherever it leads.) Perhaps the advice is not so much good as it is self-reinforcing and self-perpetuating. It is hard to underestimate the centrality of tradition, fashion, ambition, and conformity among academics and intellectuals, at all levels and regardless of claims to be anti-traditional, iconoclastic, speaking truth to power, or what have you.

8) At back of a great deal of this, of course, is law review editors and their inevitable lack of discernment, for which a novelty claim serves as a substitute. But they need only accept their fair share of the blame. Law professors do not always have a broad range of knowledge or a deep education in their own academic profession. They forget the scholarly past, if they ever learned it. And they are called upon to judge candidates across a range of subjects far from their own expertise. (Perhaps they shouldn't be. It's not clear to me that the whole faculty should have an equal vote on all candidates regardless of subject matter.) They may be just as eager for the same proxies. They may prefer bad ones to none at all. And, in my view, however much they may know and profess to know that most such claims are unwarranted and strategic, they (like the rest of us) can easily fall prey to the habit of expecting such claims simply because they are the norm and of believing them more than they know they should. We forge the chains we wear in life, and soon stop seeing them as chains, if we see them at all.  

9) My view of all this, obviously, is at best jaded and at worst despairing. But let me end on a somewhat more positive note. I find the numbers given above depressing, in part because of what they say about the system and its determinants and in part because I think writing, scholarly or otherwise, should be a unique expression of personality. (And also, of course, because the sentence is often insincere and rarely true.) But, as I suggested above, perhaps the growth of the phrase and its mechanical invocation is a function of the fact that there is more competition among a much wider range of legal scholars, writing in a large number of fields and methods and coming from a large number of backgrounds. In some ways, and perhaps slightly counter-intuitively, one may be freer to be distinctive and eccentric in a smaller, more closed and elitist system, in which idiosyncrasies are more accepted because everyone already knows everyone else and everyone's work is read more closely and evaluated in a more individualized fashion because there are fewer people and less writing to sort through (and/or because the primary sortition in such a world occurs at the level of distinguishing the establishment from everyone else). Maybe the bureaucratization and standardization that a phrase like "this is the first" represents, even if those who write it don't see it as such, is just a way to deal with a larger, more specialized, more diverse universe of scholars. That's cause for good cheer. It's just unfortunate that it doesn't seem to be an especially good or honest way or one that makes for good reading. 

Posted by Paul Horwitz on December 13, 2021 at 03:02 PM in Paul Horwitz | Permalink | Comments (0)

Friday, November 19, 2021

Why Stop There?

Josh Blackman suggests as a Gedankenexperiment that we eliminate the institution of Supreme Court clerk as it currently exists. He also muses that the Court could "hire a room of copy-editors and cite checkers--non-attorney career employees who can proofread the work, but not make substantive recommendations." So we might ultimately think of this not so much as a suggestion that the justices should have no helpers, but that the institution be significantly rethought and re-formed along more bureaucratic and centralized lines.

It's not a genuinely novel suggestion. (That's fine with me! Novelty is valuable but rare and deeply overrated, and may create a perverse incentive for ambitious scholars not to look at the reams of good legal academic literature that exist, especially those pre-dating the last 20 or 30 years. Almost nothing is new under the sun. I should note that one point he makes--that it would encourage earlier retirements--is not truly novel, but is more rarely mentioned and certainly interesting.) Many people have written about the rise of the modern Supreme Court law clerk institution, raised questions about it, and suggested we might do it differently or do without it. Reasons vary widely. 

Blackman focuses rather heavily on power and prestige in advancing his experiment. Another useful way to think about the issue is that changing or eliminating the institution simultaneously involves de- and re-personalizing the Court. Having a dedicated and diligent personal chambers staff--one that, because of the youth and inexperience of the staff and the particular skill set used in making hiring decisions, is characterized by hyper-technical skill rather than wisdom and judgment--allows the Court to write long opinions full of doctrinal detail and short on succinctness or personality. Getting rid of clerks dedicated to each single justice would thus re-personalize the Court by making the justices write in their own unique voices and, because of the reduction of extra time and technical skill that would result from the elimination of dedicated clerks, write with more economy and less kitchen-sink detail and hyper-doctrinalism. In short, less work by committee, more Holmesian aperçus. At the same time, the current institution is in other ways representative of and dedicated to the proposition that each justice is a "Justice:" a unique, powerful, and important figure, like Thanos. Having a room full of professional law clerks dotting i's and crossing t's on behalf of the entire Court rather than any individual justice would refigure the Court as a more bureaucratic institution, in which individual votes perforce still matter but the work is ultimately a collective, unglamorous, collective, and professionalized enterprise. Some would say the Court in the modern era is such an enterprise, and should be organized accordingly--and to make its true nature clearer, without the false superstructure of personal fame and distinction. 

Without judging the wisdom of such a move or the transition costs involved, I wonder why Blackman stops there. Other than the cert pool, which of the factors that he thinks support such a move don't apply just as well to federal circuit courts and their judges? They too are powerful, attract prestige games, engage in extracurricular activities, and risk becoming immured in their own chambers without substantial contact with their colleagues. Even the cert pool point could be analogized to what, in my day, were called "screeners"--opinions issued without oral argument. Viewed from the alternate perspective of personality and de-personality, again, I see little difference: Court of appeals judges partake plentifully in cults of personality, and court of appeals opinions are often highly bureaucratized in style. 

Taking for granted that circuit court judges need additional professional help, we might still reasonably ask: Do they really need individual "elbow clerks?" Is there anything a single clerk sitting in Louisville or Montgomery can do--anything we want them to do, that is, or ought to want--that can't be done by a room full of relatively nameless and faceless factotums at the Head Office in Cincinnati or Atlanta? Is there any reason we should look more kindly on the prestige, hiring bonuses, and future opportunities for power that attach to individual appeals court clerkships than those that accompany Supreme Court clerkships? Why not cry: Down with trivia-based application tests! Up with staff-clerk TPS forms! The argument for individual clerks is perhaps strongest for individual trial court judges. But it is not that strong. We could thus ask the same questions about federal district court clerkships, and about the various levels of state courts and their clerkships, which also participate in an economy of prestige and also serve bureaucratic functions. 

Again, it seems to me that such moves would recognize two odd-bedfellow points. First, it would shape our institution to recognize that in a gigantic modern economy, in a country with hundreds of millions of people and countless business entities, law is in many respects a bureaucratic and not a personal institution, and should be organized appropriately to its function. (Blackman writes that if John Marshall didn't need a law clerk, neither does John Roberts. That's the wrong way to think about it. The Marshall Court as an institution is not the Roberts Court as an institution, any more than the United States of 1803 is the United States of 2021. Roberts, who sits at the apex of a vast bureaucratic enterprise known as "the federal courts," may not need a personal law clerk--but not because the institution he heads is, in reality, the same one.) Second, by removing the closest level of bureaucratic layering from individual judges and making it a shared resource, it might force judges to be both less omnipresent and titanic, because deprived of the heavy lifting power devoted to him or her alone, and more personal and idiosyncratic.

Blackman conducts this purely as a thought experiment. But we need not be quite so arid. We have examples of courts that function perfectly well without precisely the same elbow-clerk organization we currently have. The Justices of the Supreme Court of Canada have individual law clerks. But the Ontario Court of Appeal, a powerful court in an economically mighty and sophisticated province--and, given Canada's legal structure, one that occupies essentially the same position as both a federal circuit court and a state high court--has a different system. Its clerks are "paired with either one or two judges of the Court and then change[ ] assignment[s] halfway through the year. This rotation process ensures that each law clerk is exposed to different approaches to judging and a broad range of areas of law." This disrupts the kind of culture that abounds in multi-member American federal courts, in which elbow clerks are typically chosen in part for political and ideological kinship and become partisans for their own judges, both in the long run and in terms of immediate internecine combat. Such an approach would be somewhere between the current American model and a wholly bureaucratized model. It might be a very healthy model for the Supreme Court to consider. So far as I know (which is not very far), the Court of Appeal has managed without leaks, conflicts of interest, confidentiality problems between chambers, or other concerns that might be raised against such an approach. State court clerkship structures vary widely, of course, but in some states, like Virginia, trial court clerks "are shared among two or more judges." Despite this arrangement, the Commonwealth still stands. This barely scratches the surface of the available information on state, federal, and comparative or international court/clerk arrangements.

I do not suggest that any differing arrangements are better or are suitable for transplantation. I merely suggest that our current arrangement is certainly not inevitable, almost certainly not necessary--and doesn't apply to the Supreme Court alone. Indeed, given the not-infrequent eruption of bitter disputes between judges within federal circuit courts and within state high courts, and the small number of appeals heard by the Supreme Court, I doubt it is the most important court to consider with respect to reimagining clerkships. Encouraging the consideration of expanding the bureaucratization of clerkships and eliminating individualized elbow-clerk arrangements beyond the Supreme Court is not just a matter of "go big or go home," although I think that's a legitimate suggestion about a thought experiment. It's also a matter of asking the question where it matters most--and considering that "where it matters most" might not be the Supreme Court, despite all the attention devoted to it.

Two final points in this short intervention. First, we might acknowledge that some of the current Supreme Court justices have shown a little more flair and individuality in their writing. Certainly this can be overstated, but it must be acknowledged. To the extent that we have associated law clerks with the "formulaic Constitution" style of opinion, we should consider that law clerks might have contributed to this style, but it was also a particular approach of a particular period in the history of the Court. We should be careful about generalizing across eras without making some effort to historicize. And we should consider how changes in the clerkship structure might affect approaches and styles on the Court or other courts other than the "over-long, hyper-technical, multi-part test" style. The most obvious candidate is originalism. Would that room full of depersonalized clerks conduct historical or historical-ish research on behalf of original justices? Would the staff-room include some non-lawyer historian assistants? Without elbow clerks, would the originalist justices do no originalism? Less originalism? Worse originalism? A different form of originalism, perhaps closer to Justice Black's than to the most contemporary versions? Originalism may be our law. But "our law," like everything else, is subject to, affected by, perhaps even a creature of the means of production.   

Finally: Would Blackman's suggestion eliminate those "distortions in legal markets" with respect to law clerks that are specifically related to power and prestige? Nope. Not in a million years. In fairness, Blackman does not suggest otherwise, and he has a variety of distortions in mind, not just things like Supreme Court clerks getting giant paydays and prestigious future jobs. (To the extent he does have that sort of thing in mind, we certainly should include court of appeals and district court clerkships in the thought experiment.) But I don't think it would be wrong to see this as one of his focuses. And I think we can say accurately that as night follows day, so the elimination of one form of prestige will give rise to others--or to more subterranean arrangements serving the same function, as in the good-and-bad old days. Status and prestige, like money, are hydraulic, and will flow somehow and somewhere.           

Posted by Paul Horwitz on November 19, 2021 at 01:31 PM in Paul Horwitz | Permalink | Comments (0)

Sunday, November 14, 2021

No

Since I'm busy avoiding work, I'll take a moment to answer Howard's question: Does what the late Justice Ginsburg said about Colin Kaepernick tell us anything about how she would have voted in the flag-burning cases? My view is that the answer is a clear no. I'm not sure much evidence is needed. But while tributes are generally the last place one should look for the truth or for evidence of sincerely held views, I would just note that in her memorial tribute to William Brennan, 111 Harv. L. Rev. 3 (1997), Justice Ginsburg wrote, in a tone of implicit approval, of a variety of his noted opinions, and included Johnson and Eichman, with a description of those cases as being about "the tolerance the First Amendment exacts even for flag burners." Whether the flag-loving rhetoric in that sentence was sincere, obligatory, or somewhere between the two, I doubt she would have had any difficulty casting a speech-protective vote in those cases. 

None of this is meant to suggest that Ginsburg should have said what she did, or that Couric acted anything other than improperly in attempting to sanitize the interview to protect Justice Ginsburg's reputation. (As Couric saw it. The interesting thing about the episode is that while Couric's perception might be accurate with respect to elites, surely Ginsburg's off-the-cuff reaction to Kaepernick was close to the center of public opinion at the time. Couric may have thought, after literally consulting with other members of the establishment, that leaving in Ginsburg's comment would embarrass the Justice. Nevertheless, ultimately her editing had less to do with protecting Ginsburg's general public reputation than with safeguarding her club membership. Asking millionaire journalists for their thoughts on public opinion is like going to Marie Antoinette for tips on baking.) Couric clearly acted wrongly, and doubly so because her stated reason for editing out the remark--that Ginsburg "was elderly and probably didn't fully understand the question"--was far more newsworthy than the particulars of how she answered the question. Nor does it matter to me one way or the other what Ginsburg's celebrity trainer has to say about the matter. Ginsburg shouldn't have answered the question not because she answered it rightly or wrongly, but because she shouldn't have answered it--or given the interview--at all.

Whatever Ginsburg's thoughts on the flag, the national anthem, or protests were, however, I think her vote in Johnson and Eichman would clearly have been the same as Brennan's.     

Posted by Paul Horwitz on November 14, 2021 at 05:22 PM in Paul Horwitz | Permalink | Comments (0)

The Most Important Sentence in Simon Lazarus's YLS Memo

Leaving aside all the other issues, there is surely one point in Simon Lazarus's memo, noted by Rick below, on which all right-thinking people can agree: "'Inflection point' is an overused cliché."

It is true that academics are not the most thoughtful or independent thinkers or writers. And it seems increasingly true that apart from all the other trend-chasing they may engage in, they--and their youthful editors--are caught in a moment (not an inflection point!) in which both academic and general-audience writing is infected by a hybrid of what I think of as social-media bumper-sticker phrases (see, e.g., virtually every current political and cultural debate) and bad grad-school-dropout essay style. (Try comparing the current movie reviews in the Times to those five or fifteen years ago--and read the staff bios. This is a case in which the hiring crisis in the humanities is a lose-lose scenario.) But the frequency of use of a phrase like "inflection point" serves as a nice illustration of how bad things have gotten. Here, based on a search of Westlaw's law review database, is a look at the number of times the phrase has been used per year in the past decade:

2021 to date: 114

2020: 139

2019: 136

2018: 93

2017: 80

2016: 79

2015: 64

2014: 56

2013: 49

2012: 31

Going further back at greater intervals, the numbers are 21 times in 2008, five times in 2005, six times in 2000, a whopping twice in 1995, and a total of seven times in a search of all uses of the phrase before 1995. The numbers are actually worse than that. The further back one goes, the more likely it is that when an article contains the phrase "inflection point," it is using it accurately as a term of art in mathematics, or quoting it as business jargon. That is far less true today.

I am sure that 1995 also had its trendy phrases. (And that I used them.) And I don't think this kind of trend--not so much an example of academic jargon, I think, but more an example of the increasing jargonization of normal language, and of its seeping from the Internet into every other corner of the language--is unique to the legal academy as opposed to other sectors. It might even be less common in legal academic writing, although one might think otherwise given the circumstances of its production: As an academic discipline, law is more undisciplined than most and its gatekeepers less qualified and, because they are younger, more subject to capture by linguistic fads. Still, given how often lawyers or legal academics trumpet the lawyer's ability to speak and write clearly and succinctly, we ought to be especially vigilant against this sort of trend. Evidently, we are not. 

It also strikes me--and this too is true of many of the phrases appearing in both online and offline discourse, including in the law journals--that most of the time it is used inaccurately even as a turn of phrase. In its non-mathematical sense--one closely related to its mathematical meaning--an inflection point is a moment of dramatic and fundamental change, one in which previous assumptions no longer apply. Most of the time, "inflection point" is merely used to mean something more like an "important moment." And a good deal of the time, its use is less descriptive and more rhetorically assertive and strategic than that. It is used to mean something like, "This is a moment that I want you to believe is urgent." Since the evidence given to support the assertion is often lacking, it is fair to say that its invocation in such cases meets Harry Frankfurt's definition of "bullshit:" it is intended to persuade without much regard for whether it is true or false in fact. (Why undertake this draconian legal change, despite the unanswered questions about consequences or the existence of known costs and risks or the presence of contrary precedent? Because we are at an inflection point.) Apart from its political uses--and a good deal of legal academic writing is intended to look as if it is politically engaged or make the writer feel he or she is politically engaged--I suspect that it fills a self-serving function supplemental to novelty claims, spurious or otherwise. Why publish this article, or publish it in a top journal--even though, strictly speaking, it is not novel? Because we are at an inflection point.

I don't much care for writing prescriptions. But if I were addressing law review editors, my advice to them would be straightforward: Redline every use of every phrase of this sort. (I'm sure many current instant-cliches will occur to you.) Ask the writer whether it is actually true (and demand support on that point) and actually needed. Encourage him or her to rewrite the sentence in plain English. (At a minimum, this would have the benefit of making many articles feel less important and exciting.) Then go after the older cliches as well. 

But the real target of any advice should be the professors, who are older and better situated to withstand the linguistic temptation to be timely and up-to-date. They won't be anyway. We all grow old and, if we are fortunate, unfashionable. So they may as well shoot for being clear and timeless.   

  

       

   

Posted by Paul Horwitz on November 14, 2021 at 01:24 PM in Paul Horwitz | Permalink | Comments (0)

Friday, August 27, 2021

Silence is Golden, Justice Breyer

There are some things I admire about the fact that Justice Breyer has not retired. It's not a a long list, since I think he should have retired already. I can find little good reason for a Supreme Court justice to serve more than 20 or 25 years on the Court, and if that justice is already past the age of 70 or so by that time, I can find almost none at all and find it presumptively irresponsible. (To be fair, I find it even more irresponsible that someone would serve in elected office at that age or run for a demanding office like the presidency past the age of 60 or 65. That most certainly includes the current and prior occupants of the office and any number of members of Congress. It should be an embarrassment to both men that Trump and Biden asked for the burden of serving as president at the ages of 74 and 77.) But I did admire the fact that Breyer at least affected to be uninterested in the political groups and social-media shouters who were telling him to retire (and, inevitably, in many cases turning making a buck by doing so). And I appreciated that, with the exception of a platitudinous speech last year, he generally didn't comment on it. One may contrast this with Justice Ginsburg, who seemed all too ready to embrace her celebrity and talk about her retirement or non-retirement, among other issues, and whose celebrity was a financial boon for some of her extended family members.

That's why I was particularly disappointed that Justice Breyer chose to speak with Adam Liptak on the subject. Kudos to Liptak for the "get," certainly. I have no idea how soon in the interview Breyer's retirement came up, but it's no surprise that it did or that Liptak leads with it, and would or should have been no surprise to Breyer. Although he "visited the Washington bureau of The New York Times to discuss his new book, 'The Authority of the Court and the Peril of Politics,'” surely the justice knew that the book itself would be near the bottom of the list why a Times reporter, or anyone else, would want to talk to him. He could have tested this, of course, by saying words that seem all too uncommon these days and then sticking to them: "No comment." They're the only two words a justice generally needs or should use in talking about the Court, let alone his or her own role and tenure on it.  

The best way to engage with tedious spectacles is not to engage with them; and a genuine attitude or put-on image of rising above it all is not terribly effective when one chooses to...respond to it all. By choosing this path instead, Justice Breyer effectively puts himself on a level with, and earns, every standard-issue Chemerinsky op-ed, billboard, tweet, and fundraiser-cum-message-campaign urging him to retire. It is particularly horrifying that he is quoted as saying, "I don't think I'm going to stay there until I die--I hope not." Short of tragedy or a Looney Tunesian falling-anvil incident, there is no reason any Supreme Court justice should die at the job. And it is a dilemma he could solve with a one-sentence letter any time he wishes. I say again: the most, and maybe the only, admirable model I can think of in recent decades for Supreme Court justices showing both proper care for the institution and a proper perspective about his or her job is Justice David Souter, who served for under two decades and walked out of the building under his own steam. 

Perhaps we should think of this interview as in part an example of the pernicious effects of Supreme Court justices publishing books. Although the size of the contracts for these books hss skyrocketed--not much of an issue in this case, I should think, since Breyer's book is being published by a university press--we should not think of this as a modern phenomenon. The last century was full of unimportant books written by Supreme Court justices. Even the rise in memoirs by justices is not unique. William Douglas cluttered a good-sized shelf with both categories of book. But that doesn't mean they were a good idea then. (Surely money was a relevant motivating factor in those days too.) And they're even more unfortunate today. We would lose a couple of interesting books if Supreme Court justices declined to publish books while sitting on the court; Rehnquist's history of impeachment comes to mind. But not many, probably not this one, and we would gain much more than we lose. Among other things, we would lose the temptation to sell and to speak that resulted in Breyer's interview with Liptak. As a general, almost unbreakable rule, Supreme Court justices, like mimes and celebrities, should perform their roles and otherwise remain silent.    

Posted by Paul Horwitz on August 27, 2021 at 10:23 AM in Paul Horwitz | Permalink | Comments (0)

Tuesday, July 20, 2021

Jot on Pozen and Samaha's "Anti-Modalities"

I don't normally promote my Jotwell contributions or, less forgivably, those of my other contributors to Jotwell's con law section. But I am sharing this one, which I hope and think readers may enjoy. The subject of the jot is David Pozen and Adam Samaha's excellent recent article "Anti-Modalities." As with many of my jots, it is somewhat dual-purposed: both an effort to explain why an article is praiseworthy, and an opportunity to suggest problems or unfortunate trends in legal scholarship generally, to which a "jot-worthy" article serves as a contrast and exemplar. Here's the opening: 

A specter is haunting modern American legal scholarship—the specter of branding.

Whether it is a marketplace of ideas or just a marketplace, legal scholarship today overflows with neologisms, “I call this”-es, and other efforts to hawk our wares to law review editors and, perhaps, other scholars. Useful at times, branding is often unnecessary or silly. It routinely announces a purportedly un-noticed phenomenon that in reality fills whole library shelves. (One awaits with resignation the inevitable article proclaiming, “I call this activity, in which two parties reach a binding and often memorialized exchange of promises, agreementification. It urgently deserves closer study.”) Given the frequency with which legal scholars treat as “new” arguments or observations that were old before they were born but lie outside Westlaw’s reach, branding often involves neither new wine nor new bottles, but old wine in old bottles with a new label slapped on. It is bad enough if these efforts are cynical, worse if they are not, and perhaps worse still when they are a bit of both. We might call this the Late Capitalism-ization of legal scholarship.

With that cheerful preface, it is a pleasure to see a new label that actually performs a useful service, spotlighting something we might otherwise neglect. It is doubly pleasing because the article neither celebrates nor condemns what it labels. It walks us through the phenomenon with a proper sense of its nuances and its costs and benefits. Written by David Pozen and Adam Samaha, Anti-Modalities exemplifies the difference between a meaningful scholarly label and a mere marketing gambit.

A bit on social media and other platforms and the dangers of elite law professors (which, arguably, from a class perspective, is all of them) engaging in "code-switching:"

Pozen and Samaha worry that “the anti-modalities both reflect and perpetuate the intellectual insularity of mainstream legal culture,” that their subtle entry into constitutional decisionmaking “only make[s] ‘the constitutional-law game’ more complex and impenetrable to nonspecialists,” and that this is one source of “legal estrangement” between lawyers and “nonelites.” Insularity born of the exclusion of the anti-modalities is indeed one sort of problem. But code-switching is another.

All sorts of platforms, and especially social media, allow and encourage constitutional lawyers to make anti-modal arguments on public questions of a constitutional nature, or—perhaps worse—to engage in a mix of modal and anti-modal arguments. They do not disclaim any professional status in these forums; most of them trumpet it (and would be ignored if they didn’t). They do so without any necessary skill in the anti-modalities, and without making clear what role they are playing and whether particular arguments are modal or anti-modal. One might think that anti-modal engagement on public issues in public spaces would reduce the “resonance gap” that worries Pozen and Samaha. But the mixture of modal and anti-modal argument by constitutional lawyers in these spaces may, as they suggest, add to the impenetrability of constitutional law. The very privilege of code-switching at will, while still loudly asserting one’s status as a professional player of the game, may exacerbate rather than narrow legal estrangement between elites and nonelites. And the lack of clarity about what role these elites are playing, personally or argumentatively, may sap institutional trust in “mainstream legal culture” and thus widen the gap further.

And an amusing footnote to the description of the concept and label the article introduces as "new:"

Semi-new, actually. The label “anti-modalit[y]” appears briefly in a 2013 article by James Grimmelman, in a different but conceptually similar fashion. To my delight, a much closer version also appeared in 2014 in parodic form, in one of Larry Solum’s April Fool’s abstracts. “Antimodalities,” here, is an affectionate spoof of Suzanna Sherry’s criticisms of constitutional theory, in the form of an argument that despite “the insistence of [constitutional] pluralists that constitutional argument is limited by a closed list of modalities,” in reality many key Supreme Court decisions are “‘antimodal’ decision[s] relying on arguments from outside the modalities.” That sentence could easily appear in the “real” article discussed in this jot. I see no reason to think the authors of the present-day Anti-Modalities were aware of or remembered this parody. But I do hope they share my delight. It is no reflection on the genuine merits of Pozen and Samaha’s piece that Solum is a fine parodist or that, in legal scholarship as elsewhere, history so often repeats itself—first as farce and then as reality.

Enjoy--and read the Pozen and Samaha article! 

 

Posted by Paul Horwitz on July 20, 2021 at 08:39 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, June 30, 2021

A Different Take on Faculty Intervention in Law Journals

Jonathan Adler has an interesting post about a purported controversy involving Duke's Journal of Law and Contemporary Problems. I can't vouch for the accuracy of the details, since the source for his post is an item in Above the Law. As he notes, insofar as the apparent controversy involves student editors at the journal protesting the editorial decisions of a journal which is and describes itself as faculty-edited, it's not really much of a controversy. What interests me is Jonathan's take. He writes:

The ATL story certainly sounds bad, as most law journals are led and managed by students, with minimal faculty supervision (let alone control). Forcing student editors to publish an article would be quite a breach of journal norms....

Let me suggest another view. I do not disagree with him descriptively. It is true, if embarrassing, that most American law journals are student-run. (That is not true of most law journals elsewhere. In those places, a) most law journals are run by faculty, b) students may get involved in some capacity but doing so is not at all a key to future jobs or professional advancement, and c) law is more genuinely and seriously an academic discipline--and articles don't run for tens of thousands of unnecessary words or place marketing on an equal level with substance.) It is also true that direct faculty intervention would be contrary to the usual norms. But it's not so clear to me that those norms are always salutary or that we shouldn't take another, more positive look at the possibility of faculty intervention in the decisions of law journals. 

The Harvard Law Review is a formally independent entity. I'm not sure that's true for the overwhelming majority of law journals, which are student-run but substantially funded and operated by their law schools. Whatever their degree of formal dependence or independence, they exist to fill a function. That is, in theory, first and foremost to publish scholarship. If a journal's board decided to spend the year publishing MFA theses or recipes for moussaka or hot takes on contemporary politics, it would be derelict in its duties and any sensible faculty would intervene. And quite properly so, regardless of whether the decision to abandon its obligations was ratified by even a unanimous vote of the current editors or not.  

I take it as a given that academic disciplines are subject to change and internal debate, and that a reasonable range of reasonable disagreement about the boundaries and best practices of that discipline is always available, especially in an undisciplined academic discipline like law. But as the examples above suggest, there are limits, and in cases where the limits are exceeded it seems to me that a faculty and/or administration's obligations--to the discipline as a whole and to itself as an institution--require it to intervene.

I am inclined to think that they ought to do so more often than they currently do. I have already suggested in past posts that there seems to be a larger number of mainline journals engaging in questionable scholarly practices, including running symposia that are clearly unbalanced and clearly make no effort to be balanced, despite being mainline journals. (I leave aside secondary journals that espouse a particular point of view. One might question their very existence. But they are secondary journals, and they at least advertise their biases openly.) One may ask reasonable critical questions about the behavior of the Washington University Law Review last year. Two sets of questions might be raised about a recent symposium in the Roger Williams University Law Review, which both took funds from a group which takes a partisan position on a set of legal issues and advocates for those issues in court (and thus has every reason to support one-sided scholarship on those questions), and openly disclaimed any interest in seeking out contrary views. (I cannot say what influence the subsidization had on the symposium, because the conditions, if any, of that subsidy were not spelled out. But that is exactly why people are suspicious of subsidized scholarship. And nothing in any event prevents a journal from turning down offered money, or taking it and then doing what it wants to and what is right.)

I cannot say empirically that law journals have suddenly or dramatically become more one-sided, more opinionated, less driven by well-established norms of scholarship, less interested in norms of scholarship as such, more interested in issues that are orthogonal to their actual mission and responsibility. But that does seem to me the direction in which things are headed. In such cases, it seems to me the "minimal" faculty supervision or control should become less minimal. In such circumstances, faculty that persist in maintaining a hands-off position are actually disserving their own discipline and abandoning their own professional obligations.

Given the strange existing structure we have in our discipline in this country, a norm against faculty intervention is not a bad one. But it depends on a prior and more fundamental norm--that the law journal act as a law journal, acting according to academic norms and values for academic purposes. Where it fails in that, intervention is fully warranted. Perhaps we ought to be thinking about doing just that more often than we do. It's worth remembering that student editors of academic journals serve for one or two years. Some of them have a sense of institutional history and an inclination to think about their fiduciary responsibilities to the discipline over a longer time period. Some, understandably, will not. (If journal membership had nothing to do with jobs or prestige, I assure you from experience that the interests and commitments of those who still chose to participate in them would be very different.) As faculty and administrators, our commitment to and responsibility for the discipline is longer and deeper, and more important than the possibility of upsetting a subset of a given year's worth of editors. (Surely a subset; journal editors are no more unanimous than any other group of individuals.)

I cannot help but add, as something of a footnote but perhaps an important or telling one, that I suspect the reality is less hands-off than Jonathan's post suggests. How often do faculty or administrators lean on or use their influence with ostensibly independent law journals--to encourage the publication of a friend's tenure piece or their own, to steer the direction of a symposium for partisan or other non-scholarly purposes, or for some other non-scholarly and non-disinterested reason? Less often than gossips would have it, perhaps, but certainly far from "never." But that sort of behavior is more or less accepted as part of the system, in part precisely because it is tacit and quiet--a vice, but at least one that pays tribute to virtue. A direct, open faculty intervention--for the right reasons, to be sure--might be more of a seeming violation of existing norms and occasion more reaction. But it would be public, clear, deliberate, and properly justified. We might hope that the latter sort of intervention might never be necessary. But in many ways I think it's preferable to the former sort, and more virtuous in fact.

Posted by Paul Horwitz on June 30, 2021 at 11:03 PM in Paul Horwitz | Permalink | Comments (0)

Monday, June 14, 2021

Duly Noted

In a post on Balkinization, David Super writes about a forthcoming paper on making government more responsive. As a side note, he writes: "Because its goal genuinely is strengthening democracy rather than smuggling through the substantive progressive agenda, it will be interesting to see if the journal editors have any interest."

It's not a sentence that will shock anyone. I don't want to give it more weight than the author intended--one can't read tone very easily on the Internet and distinguish between light humor, sarcasm, plain truth-telling, lament, and so on--or to focus on its author in particular. But, apart from thinking the sentence is accurate, I would be inclined to suggest that its very matter-of-factness is noteworthy. It is unusual in that it is a moment of plain-spoken truth-telling in a public space by someone who is both rightly well-regarded and indisputably well-credentialed in the progressive realm, rather than someone writing outside and against it, who might thus be disregarded or discounted even if he or she wrote essentially the same sentence.

Law reviews, like law schools, are an institution. As I have suggested here and there, it seems to me that the true crisis of our time, across many spaces, is institutional--is, specifically, a loss of interest in and allegiance to specific institutional roles and the valuable but--or valuable because--limited and specific purposes they serve. Institutions are not static and are and should be subject to change and reform, but debates about change ought to take place primarily from within some degree of submission to that institution: its purpose, function, role--and limits. The function of a law review is to serve scholarship. It may (to use a decidedly overblown bit of language) change the world, for better or worse; but that is strictly incidental. Serving scholarship, with a proper sense of institutional role and limitations, is the function; anything else is just a by-product. Law reviews that lose this core sense of purpose lose their reason for existing. Law schools that let it happen fail in their own function. And legal academics that actively encourage it, go along with it for reasons of placement and advancement or avoiding friction, or simply ignore it are also complicit. Our discipline is already undisciplined enough as it is. I agree with Stanley Fish that the job of academics is to do the job of academics. Surely that includes insisting, and ensuring, that their institutions are functioning properly and doing their jobs.     

Posted by Paul Horwitz on June 14, 2021 at 10:36 AM in Paul Horwitz | Permalink | Comments (0)

Thursday, June 10, 2021

Whatever "the immediate political moment" is, Ignore It

Allow me to register a mild dissent to part of Howard's post below, in which he complains that the sudden last-minute issuance of opinions threatens to "overwhelm[ ] those whose job it is to parse, understand, and critique the Court's work in the immediate political moment," and notes that "scholars also do and should provide immediate comment and critique and that is impossible when every day produces multiple major decisions." I disagree on a number of counts.

I can understand an argument that the Court, like the other branches of government, in some sense serves and in many senses should be aware of the public. And I can understand an argument that the Court, in doing so, is likely to deal with intermediaries, since most of the public neither reads nor necessarily understands or even cares about individual legal opinions. But neither of those things require the Court, or any court, to try to assist specifically in "understanding" any particular opinion's role or significance "in the immediate political moment."

I doubt, frankly, that one's understanding of a judicial ruling is generally assisted by focusing on "the immediate political moment," since it is precisely an obsession with the "immediate political moment" that has the almost inevitable tendency to wreck judgment, supercharge motivated reasoning and partisan interpretation, and turn the minds of even (or especially) the best and brightest to jelly. But even for those who enjoy thinking about judicial opinions and other events in the "immediate political moment"--and I do think "enjoy" is the right word, since it is as much a hobby as a sign of any real engagement--it is not the Court's job institutionally to facilitate such efforts. It is its job to facilitate the issuance of opinions and their distribution to the public, full stop. The fact that an industry has sprung up around trying to read and opine on opinions within minutes of their issuance is true and unfortunate. But it's not one the Court ought to pay much attention to.

Nor do I agree that scholars "should" provide immediate comment and critique. The second word, critique, certainly not. The more immediate it is, the less scholarly it is likely to be and the less likely it is to draw on anything like the actual skills or capacities of scholars. Even "comment" is dubious. (And both are highly dubious, if one means comment or critique in the context of "the immediate political moment," a matter on which legal scholars have no specific expertise and which is as likely to skew their thinking as it is anyone else's.) The job of the scholar qua scholar is to provide scholarship--which generally takes time, care, and attention. Legal scholars--like lawyers, bricklayers, or anyone else--can provide immediate comment and critique. They are often asked to do so. They have lots of individual incentives to do so: they get on TV, they get well-known, they get to push particular narratives, and, for those who are politically engaged, they get to maintain the feeling, however illusory or self-serving, that they have influence or importance or engagement on public issues. They are also aware that their institutions, from deans to law school PR offices to main campus, love it when their school's name gets publicity as a repository, not of experts as such, but of experts who delight in particular in speaking to the press. But none of this is their job as such.

I doubt they do it particularly well, and I doubt that the ones who do so most eagerly are the ones who do it best or in the most scholarly fashion. I would be happy if it were otherwise. It would be nice if the scholars who spoke most often to the press emphasized the most boring but crucial details, rejected stupid or overheated interview questions and simply refused to play along with those lines of questioning, pointed out when they had not finished reading various opinions or stated that it was too soon to have a useful opinion about a newly issued one, openly emphasized the role of their own political views in influencing their commentary and warned readers or viewers that this surely affects the reliability of their commentary, and foregrounded the utter unknowability of longer-term implications. But there is a label for such scholars: "people who don't get called a second time." The media environment, especially in the immediate political moment and given the brevity and immediacy of the news cycle and the economics of current journalism, is not well-suited for scholarly commentary on judicial opinions. On the whole, I would rather they either did it absolutely right or didn't do it at all. But whatever choice they may make on these matters, none of it is their job qua scholars.   

None of this, of course, is to say that the Supreme Court should issue tons of opinions on the last day or week of the Term, or that they should ignore the role of intermediary institutions in distributing their opinions to the public. On the latter point, a far more useful response would be something like that of the Supreme Court of Canada, which (at least during some portions of the post-1982 years; I have no idea what the current status or approach of the Court is) has an Executive Legal Officer, whose job it is to give a careful, no-spin explanation of rulings on the day they are issued. Such an approach, which allows the Court to explain rulings (off the record and on an embargoed basis) to journalists before they are issued, would be elitist, have a somewhat undemocratic air, and be preferable to the likes of reporters--or "scholars"--rushing out to announce something based on a sentence or two that they have glimpsed on the last page of a lengthy opinion.

On the first point, it seems to me that instead of focus on, if you will pardon the repetition, the immediate political moment, we might think in a longer-term and more institutional fashion. Basing the size of the Court on last Term's opinions or those of the last several Terms is a lousy way to think about Supreme Court reform, and I would say the same about this. Institutionally, the scramble to get out opinions before the end of Term is embarrassing--no more embarrassing than much of what the other two branches do, but embarrassing just the same. I would much rather see them adopt a strict policy of issuing no more than two or three opinions on a given day, and to see them do so every day of a week during the last month of a Term rather than cramming everything into a few issuance days. I would, for that matter, be perfectly happy if they sat from the first Monday in October through the following first Monday in October. I'm sure there are some good reasons that the Court's calendar year is the same as that of academics and other school-teachers. But there are many bad ones. If the institution would be better served by the justices sitting longer, issuing opinions throughout the year, and having to give a miss to Aspen or Runnymede or Salzburg, I for one am willing to accept that sacrifice. They are already well compensated in pay and honor for what they do. Surely they can do it all year. 

A last word: I agree with Howard that Justice Breyer ought to retire. There is an excellent reason for it: He is 82 years old, serves in a federal government that is already far too much of a gerontocracy, and has served what is already an ample--indeed, excessive--tenure on the Court. I see no convincing reason why any Justice of the Supreme Court should serve longer than 20 or 25 years or past the age of 70. On this score, however, the last Justice to show any good behavior was Justice Souter, who understood that there are other things in life besides serving on the Court. More of his former colleagues should emulate him, instead of engaging in the awful competition to break records for length of tenure. These are excellent reasons to retire from public office, and they apply to a number of recent and current Justices and elected officials. I think they are more important than the immediate political moment. But one may take that view with a grain of salt, since, like most of my colleagues in the legal academy, I have no special expertise on that--whatever it is.     

Posted by Paul Horwitz on June 10, 2021 at 03:45 PM in Paul Horwitz | Permalink | Comments (0)

Tuesday, April 13, 2021

"Working as Equals" Conference

This, via Larry Solum's blog, sounds like a very interesting conference:

If we’re equals, then how come you’re my boss? This question lies behind a growing wave of ethical criticism that is directed at hierarchical workplace structures and deploys various ideals of relational (or social) equality. Can workplace hierarchy be justified, and how can this justification be squared with the ideal of relating to each other as equals? The Working as Equals workshop seeks to illuminate the moral dimensions of today’s workplace relations. It also aims to bring into focus the promise and limitations of the relational turn in ethical theory, using the workplace as a lens.

The basic assumption I make about academic conferences is that they may have a thesis or orientation--they seem increasingly to do so but perhaps that has always been the case--but, God willing, they will not have not proved or assumed its truth and value in advance, and will make plenty of room for exploring the nuances, critiques, and costs of that thesis. I assume that is the case here, and I should think there would be plenty of room for exploring the costs of some of the theses advanced in the abstracts, which of course have differences but pull roughly in the same direction. (There will be commentators, who no doubt will engage in some of these explorations.)

My own view, for which evidence arises nearly every day, is that the greatest general crisis of our time, which takes in all sorts of territory and all sorts of frequently focused-on terms ("norms," for instance), is institutional, and that institutions, their purposes, trust in them, and commitment to them as projects need to be shored up at least as much as they need to be reformed and far more than they need to be eliminated. No doubt some or all of the papers here will point to useful elements of institutional critique and institutional reform. So they should, and any institutionalist should welcome those elements, while insisting that it is a mistake for institutions to be everything (and thus nothing), or to "reimagine" them into something else entirely.

The papers will no doubt, as the conference description promises, be as focused on the limits as on the hopes of the general approach. But the papers also, from what I can tell from the abstracts (an imperfect indicator, admittedly), leave plenty of room to worry in advance about projects that treat hierarchy as such as "disconcerting," not just within the stereotypical modular workplace but within such institutions as churches and the military; that seem in turn disconcertingly focused on individuals and autonomy; that are disconcertingly confined to the unpoetic vocabulary and useful-but-limited tools of liberal egalitarian theory; and that seem disconcertingly suspicious of social organizations that "shape[] individuals more than [they are] shaped by them." Isn't that all of them? Or isn't it at least the case that all social organizations shape individuals as much as they are shaped by them? How alienating would it be not to be shaped by one's associations, including one's workplace? One might paraphrase Augustine: "O Lord, let me stand naked and alone before You--but not yet!"

Two more passing thoughts. First, are modern "reforms" of the university egalitarian and conducive of a greater atmosphere of non-hierarchical relational equality, to use the language of the conference? Or are they closer to the opposite? In their twinned and inseparable urge both to advance sincerely held reforms and to cave at the slightest hint of adverse publicity to the most vocal segments of their fee-paying consumer base, are university administrators being egalitarian--or are they asserting a striking, if seemingly obseisant, degree of authority, hierarchy, and power? (One, in fairness, that faculty have yielded up to them by slackening in their governance duties and in their own sense of the institution as an institution.) Second, I am reminded that the worst workplace I ever experienced was one in which my employers said, and at least sometimes meant, that we were a "family." An op-ed writer in the Times--not, admittedly, a place one goes for deep or useful thought--wrote recently, in the words of the sub-headline, that after working at Google she had "learned the hard way that no publicly traded company is a family." True enough, but oddly limited in scope; no company is a family, and I would much rather work at a company, public or private, that is clear about not being one than one that purports to be. There are surely places in this world where it is far more important to know where one stands than to be loved or cherished.

These are all critical questions and reflections, and I think they are fair in light of the conference description and abstracts. But they are not the conference itself, where I am sure all these questions and more will be fully aired by an impressive set of speakers and commentators. It sounds well worth attending, the better to appreciate and, as it were, apprehend it. 

Posted by Paul Horwitz on April 13, 2021 at 11:28 AM in Paul Horwitz | Permalink | Comments (0)

Tuesday, March 16, 2021

One Irony and One Tension on "wrong for faculty to be thinking"

I do not have the full correspondence that Eugene Volokh had with a Georgetown Law faculty member concerning the dismissal of one adjunct faculty member there and the placement of another on administrative leave. I do not know the identity of Eugene's correspondent (understandably enough), nor all the nuances of the full correspondence. That has made me reluctant to comment on the startling quote from the correspondence that appears in Eugene's post: that it is "wrong for faculty to be thinking—not just speaking—along those lines, because it will tend to create the very facts that it purports to describe." (Emphasis added.) The background topic does not necessarily encourage candid or public discussion, notwithstanding the fact that tenure and responsibility for one's academic discipline make candid and public discussion a duty and a well-protected one. Nor am I sure that the word "Thoughtcrime" in the title of Eugene's post helps to encourage that discussion, whether it is accurate or not; arresting language is powerful but can be, well, arresting.

All that said, I cannot help but add two observations. First, we recently had a couple of posts here about a lovely exchange between Mark Tushnet and Michael Seidman discussing their experience in law teaching. In that exchange, as Rick noted in his post, Seidman expressed discomfort over the sectarian nature of Georgetown as an institution, saying that "Georgetown Law Center is a nominally Catholic institution and one aspect of the residual Catholicism there is the notion that we're educating the whole person. Frankly, that gives me the creeps." He continues by asserting that universities have a "very limited function" or jurisdiction, and that "an educational institution that is concerned about the whole person risks totalitarianism."

Like Tushnet, I think there is room for more institutional pluralism than that--that there is room for universities that "care about the whole person." But I should like to note an irony here. Seidman is likely right that Georgetown is more "nominally" than deeply Catholic in its approach, and I'm sure many people there do not think of it as an especially sectarian institution. And yet, if the "wrong to be thinking" quote that Eugene offers is accurate, if it is shared by other faculty or students, and if it is reflected in the administration's actions (and they are not simply a university exhibiting the modern consumerist tendency to do what it has to do to fend off bad publicity and placate fee-paying stakeholders), it would be hard to imagine a more sectarian position. It is true that the quote offers a lightly consequentialist justification for objecting to faculty "thinking--not just speaking--along those lines." But at that level of abstraction and of intrusion, the idea that the wrong thought leads to the wrong world is surely deeply sectarian in nature, in effect if not in intent and perhaps both. It might not be the sect Georgetown started out with--it is actually closer to Puritanism--but it is sectarian just the same. The argument that some modern movements and sentiments are effectively religious or serve as a substitute for religion has at this point moved from insight to bumper sticker slogan. But this would be one case in which the bumper sticker seems to stick pretty well.

The second point is that I detect in some of the academic commentary (or lack of it) a sense that things are different in this case because the affected teachers are "merely" adjuncts. It is true that adjunct professors do not enjoy the protections of tenure. It is also true that many have argued that the "deprofessionalization" or "adjunctification" of the university poses dangers to academic freedom as a general institutional duty. But one can at least observe that the movement in law schools for some time with respect to another, previously contract-based sector of the law school faculty--clinical and legal writing professors--has been that they should be put on the tenure track and given equal status with doctrinal, tenure-track faculty. There is, I think, some tension between that and a view that what would be a controversy in the case of a tenure-track faculty member is much less consequential if it involves adjunct faculty. Whatever else one thinks of their status, one would think that one who has made arguments for expanding the professional status of teaching members of a law school should believe either that the "thinking" of adjunct faculty should be as protected as that of any other teacher (or student) at a university--or that wrong "thinking" ought to be unprotected for everyone, tenured professors included. I hope many more members of the broader university community share the first view than the second. But I'm not sure that's so.      

Posted by Paul Horwitz on March 16, 2021 at 11:29 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, March 10, 2021

Writing, Thinking, "Debating," and That Other Medium

At his Leiter Reports blog, Brian Leiter links to this short post by philosopher Charlie Huenemann on the "twilight of the idols of good writing." He laments the decline of "nuanced and disciplined" writing and the resultant increase in "shorter attention spans and shallower content." Naturally, he finds Twitter to be "the emblem of both results." Although I am biased because I am temperamentally ill-suited to Twitter and have ambivalent or negative views on late-capitalist culture, ceaseless self-promotion, and political polarization as a kind of hobby--the implicit ultimate object of most of the twits I read when I visited that site, including (especially including?) those by writers and academics--I find little reason to disagree with his general point, albeit it's one you've read before. (I grant that one-liners and "what a cute cat!" might be perfectly suited for the medium.)

I thought two things were worth emphasizing about the post. Huenemann does a nice job of discussing the connection between good writing and good thinking:

All in all, writing matters less. To my old school way of thinking, this means thinking and reading also matter less. I once heard Jonathan Bennett opine that there are no purely stylistic difficulties; every problem in expression betokens a failure to have thought all the way through what one wants to say. If we are more lax in our expectations for our writing and the writing of others, this means expecting less in thinking and reading. Good writing is mental discipline, and that discipline carries over, or fails to carry over, into all attempts to process content.

Perhaps this is truer for some forms of writing than others, but I think it is generally true. One reason I stole (from Professor Vincent Blasi) the "close reading" or "response paper" assignment I offer in many of my classes, in addition to my objection to hundred percent finals, and made sure that it was not of indefinite length, is that editing and deleting are essential exercises in writing and thinking. (I know, I know. Do as I say, not as I do.) Getting rid of what you don't really need is a fundamental part of figuring out exactly what you mean to say and what isn't necessary. Forcing students to concentrate their argument also forces them to think about that argument. Finally, it forces them to think about what kind of argument they can make well in a given amount of space and what would require more. (Thus, the end-point is not "If it's good to say something in as little space as possible, it must be even better to do it in 280 characters." A worthwhile idea should be communicated in as much length as it needs--no more, but no less. An idea that can be communicated in 280 characters or, not infrequently, an op-ed is often an idea not worth having, let alone sharing.)

I have only one quarrel with Huenemann, which is that he feels the need to add that the style of writing he teaches has "bankable career benefits." The thing is a good in itself and that is sufficient ground to argue for it and insist on it. If it becomes the case that writing short-form foolishness takes on more cash value than writing well, Huenemann will still be right and the fault will be that of society and the market. (More likely, I think, is that some people will master both, switch as necessary, and do very well by it financially, even as they champion the foolish style and call the thoughtful one outmoded, and that those who have failed to master or not even been taught Huenemann's style of writing and thinking will find themselves at a further disadvantage in a society stratified by education and elitism.)

I would suggest a second point as a variation on the theme of Huenemann's post, one not raised by him. He is right that thinking and writing are closely, inextricably connected. What about debating? Twitter is well-suited to a particular set of forensic debating toolswhich can be used in that short space. Yet it is still a moronic place, and even (especially?) skillfully wielded debating points by ostensibly intelligent people are as likely to lower as to raise the discourse and to obscure rather than clarify any real understanding of the issue. It may be that law professors, who (in my view) overvalue debating skills and their own debating experience earlier in life, like Twitter in part for that reason. (Although I suspect that capitalism, self-promotion, and politics-as-hobby still have more to do with it.) To my mind, Twitter also reminds us that while writing and thinking may be the same, thinking and and arguing are not the same as debating, that forensic skill is not serious thought, that it is dangerous to mistake one for the other, and that our culture has indeed developed the perilous habit of making just that mistake.      

 

 

Posted by Paul Horwitz on March 10, 2021 at 01:18 PM in Paul Horwitz | Permalink | Comments (0)

Thursday, February 25, 2021

Listen to the Codgers: Tushnet and Seidman on 50 Years in the Legal Academy

Better than late than never, let me urge on readers this fine dialogue between Mark Tushnet and Louis Michael Seidman, On Being Old Codgers: A Conversation About a Half Century in Legal Academia. It is dated 2019; I'm not sure why I didn't see it earlier. It is charming, useful, and insightful. Perhaps because I worry over these issues plenty and because I tend to agree with Mark on a number of issues, I don't think the insights are shocking. But they are useful, and I suspect some people who are less historical or institutional in orientation think about them less and might find that they are new to them. There are some statements here--for instance, "Our role is not to change students’ minds, but it is to get them to hold the ideas they have in the most sophisticated form that they can be held."--that many or most of us would take to be self-evident but for which I suspect that there would be some genuine divisions (political, generational, institutional and so on) and that some might even take to be clearly wrong. (It is actually clearly right.) The discussion about the reality or perception of a decline in general agreement about and faith in the seriousness of the enterprise is interesting, and so is Tushnet's suggestion that the brief establishment of a commune in the yard at Yale Law School in the early 70s, and the cultural challenge it represented, was ultimately "more significant than the directly political stuff that I was interested in." So is the discussion of scholarship. The whole thing is well worth your time. 

Posted by Paul Horwitz on February 25, 2021 at 03:02 PM in Paul Horwitz | Permalink | Comments (5)

Wednesday, February 10, 2021

More on Semicolons

To Howard's post below on semicolons, we can add a law school connection by noting a recent short article by Diana Simon, a professor at  the University of Arizona who, inter alia, teaches legal writing. Simon not only "detest[s] semicolons"; she believes they "should be given a proper burial," especially in legal writing. She offers three reasons, excerpted below:

1) "[T]eaching legal writing is challenging enough from a substantive standpoint, and there is no reason to inject the proper use of semicolons into an already steep learning curve. Semicolons require effort and thought."

2) "[W]e need to face facts: our students are not well-versed in punctuation and grammar in general, much less in the complex labyrinth of the semicolon. . . . "[L]egal writing instructors can teach the fundamentals of effective legal writing, such as accuracy, brevity, and clarity--without stepping into the quicksand of semicolons." 

3) Eliminating the semicolon will address "the elitist issue," that issue apparently being that semicolons have a "reputation for being overly formal and elitist," a reputation Simon appears to believe is well-deserved. 

De gustibus non est disputandum, as we overly formal elitists are wont to say. I am sympathetic, not to Simon's disdain for the semicolon, but to the difficulty and even unfairness of having to teach "punctuation and grammar in general" where prior educators, busy teaching students to "find[ ] their voice," have failed to do so. My sympathy is genuine, but that is where it ends. Engineering professors should not have to teach engineering students basic math, and we should grieve if they are faced with a situation where they have to. But students who are studying engineering must either master basic math or be dismissed from the study of engineering. That is so even if basic math requires effort and thought and even if these students have been poorly served by their math teachers. What is cause for despair is not cause for resignation. As for elitism, among other things it seems to me that leveling up and giving more people the gift of a full and rich written language is, like Jeremy Waldron's conception of dignity, more a matter of universalizing high social rank and that abandoning the effort will, if anything, help entrench the status and advantages of semicolon-loving elites. Moreover, although I was not bowled over by Oyler's case for semicolons, she is surely right in one respect: "That semicolons aren’t popular on social media . . . is perhaps the only argument some readers will need to be convinced of their value."  

Posted by Paul Horwitz on February 10, 2021 at 11:28 AM in Paul Horwitz | Permalink | Comments (0)

Tuesday, January 26, 2021

Sondheim on Workshops

I'm reading Stephen Sondheim's Finishing the Hat, a collection of lyrics with, as the subtitle puts it, "Attendant Comments, Principles, Heresies, Grudges, Whines[,] and Anecdotes." In it, Sondheim writes of the phenomenon of workshopping and/or doing readings of new theater pieces, how it grew, why it was valuable, and how it changed and lost much of its original purpose and value:

"Before long, every gestating musical held readings, which unfortunately burgeoned into 'workshops,' rapidly progressing from the simplicity of actors sitting around a table with scripts they had barely had time to read and a composer singing solo at a piano to elaborately staged and choreographed semi-productions....What had begun as a learning experience for the authors became transmogrified into a thinly disguised backers' audition. Workshops today have turned into events..., not so that the authors can discover the weaknesses and strengths of their work but so that the producers can raise production money and start the highly desired (and overrated) anticipation known as 'buzz.' In truth, the workshop notion is most valuable only when it is used for the creators' education. Workshops with carefully chosen full-sized casts, staged to entertain deep-pocketed strangers, are virtually worthless...." 

 

Posted by Paul Horwitz on January 26, 2021 at 12:35 PM in Paul Horwitz | Permalink | Comments (0)

Friday, December 18, 2020

In Jotwell: "The Two-Body Problem"

At Jotwell, I have a jot this week on Daphne Renan's recent article, The President's Two Bodies. Drawing on Kantorowicz's classic work on the king's two bodies, the article addresses the tension between two visions of the presidency, one focused on the temporary and personal “body mortal” and the other on the "enduring 'body politic': king and kingship, one person with two distinct but indivisible aspects." I think very highly of the article, both substantively and in terms of its exploratory and fairly open-ended approach, and explain why. Here's the opening:

For reasons that remain mysterious, the past four years or so have seen a distinct rise in interest among public law scholars in the concept of “office” and surrounding ideas. What is an office, precisely? Is its defining feature one of powers—or of duties? What is the relationship between the office and the person occupying it? Do the powers and duties connected to that office inhere in the office, the officer, or some mixture of both? Can an officer speak for him- or herself, or is that speech always “official?” What is the relationship between office, officer, and the oath of office? Does the idea of fiduciary duty illuminate such questions, or obscure them? Of course these questions have a long pedigree. But since roughly 2017, this broad topic has seen a distinct upturn in scholarly work. One hopes it is not temporary or expedient.

Scholarly work on the question of office can take different approaches—legal or political, practical or theoretical. It can attain a level of abstraction that may yield general insights but few prescriptions—this is my own preferred sin—or give very precise recommendations that are hard to tie firmly to the legal, historical, or philosophical materials. (This is one way, in my view, to read a recent critique of “fiduciary constitutionalism,” even if one thinks the concept is worth exploring.) If one wants to avoid one or the other extreme, one had better be willing to live with tension and ambivalence. That position makes many law professors uncomfortable, given their own normative inclinations and the political and professional incentives that drive them. But it can be achieved—and beautifully, at that. Such is the case with Professor Daphna Renan’s recent article, The President’s Two Bodies.

As usual, my discussion of the paper is interspersed with hobby-horse complaints about legal scholarship and some thoughts on office and the oath. One question I don't ask here and ought to take up in a post of its own is: Which legal theories or ideas that gained a lot of interest during the Trump presidency, generally accompanied by suggestions that they were not limited to that presidency alone, will be dropped now that he will be leaving office? I think there is a core of scholars who will keep on writing about oaths, constitutional norms, the Take Care Clause, and similar questions, and I'm glad. But I imagine there will be a certain, unspoken drop-off of interest on the part of some who wrote in this vein, and I suspect fancy-law-review editors will be less interested as well. I would be happy to be wrong on one or both fronts.  

Posted by Paul Horwitz on December 18, 2020 at 02:52 PM in Paul Horwitz | Permalink | Comments (0)

Wednesday, December 09, 2020

#researchpitch: Monetizing Your Supreme Court Tenure

It won't be me, but it seems to me that this is a natural research topic for someone to pursue, both as an examination of the contemporary Court and against some kind of historical backdrop. The closest I can come to a general discussion is not quite on point, although I was glad to find it: Richard Hasen's 2016 Green Bag piece Celebrity Justice. It focuses on the volume of extrajudicial statements made by members of the Supreme Court, and muses about its causes, costs, and benefits. He concludes that we are not likely any time soon to "run out of Justices willing to step into the public spotlight to educate, dish, defend, cajole, sell books, entertain, or just bask in the celebrity spotlight." If others are aware of more on-point treatments, I'm happy to hear about it; my search was quick and crude.

I would be interested in seeing a piece focusing more on the verb "sell." Do what degree have a larger number of contemporary Court members profited off of their status as Supreme Court justices? What small-e ethical questions does it raise? What is the relationship between cause and effect--between the justices profiting off of their celebrity and the justices enhancing their celebrity through at least partly profit-seeking extrajudicial enterprises? What is the complex connection between monetizing one's tenure with, say, a memoir, and the circus and controversy of confirmation hearings? Many people lament what those hearings have become, somewhat variously depending on the nomination in question, but the controversy and publicity of the hearings makes the post-confirmation memoir more valuable, raises the visibility of Supreme Court justices, and thus makes it more likely that the next hearing will be even more public and visible, that there will be a market for the next memoir, and so on. Is there a difference between the simple and well-compensated memoir or generalized set of musings and a more substantive work? (I think there is. I am less inclined to think ill of the books published by Justice Breyer and the late Justices Scalia and Rehnquist than of a number of others. But I'm happy to be pushed to change my mind or to distinguish some of those works from others.)

What about more indirect profit, such as the usual round of international travel and lecture or teaching sinecures that justices like Anthony Kennedy enjoyed? And what about second-order monetization, perhaps abetted or encouraged by the individual judge even if he or she is not the direct beneficiary? It is not hard to find public criticisms of Virginia Thomas for profiting off of her husband's celebrity status. The financial beneficiaries of various RBG books and movies include family members and associates (such as her personal trainer), and I assume her blessing or access were at least sometimes relevant to those enterprises. Success in politics is always potentially a profitable family business or ancient Roman patron-client relationship in the mixed quasi-aristocratic/mercenary culture we inhabit. Are things really all that different for at least the pinnacle of the judicial branch? Should they be?

Some historical background would be useful too. Of course the current justices are not the first to write books, and some of those books were as light on legal substance as some of the present generation of books. But there may be significant differences in degree of profit. Justice Douglas was highly prolific. But I'm not sure he is a model we should want to follow.    

In any event, it's a fertile subject and I would love to see a comprehensive article or book on it, or at least a symposium on the celebrity justice phenomenon that addresses it decently.    

 

Posted by Paul Horwitz on December 9, 2020 at 12:21 PM in Paul Horwitz | Permalink | Comments (0)

Tuesday, December 08, 2020

What Is/Was Your Pandemic Hobby?

I'm curious what readers took up by way of new hobbies, habits, and obsessions during the pandemic. The poll numbers suggest many or most of you did. Personally, I went from being a terrible jazz drummer to being a merely bad (but enthusiastic) jazz drummer, enjoyed inflicting the results on my students from time to time, and read a large amount of jazz history. I would like to tell you my kids took up Latin or baking. (Although, if I recall my past controversies correctly, you need to stop baking bread.) In fact, they became proficient spend-time-on-TikTok-ers. (In fairness to them and their future online selves, they also took up guitar and ballet, of their own accord.)  

Comments open, for once. I add the obligatory and thus wholly unnecessary acknowledgments that being in a position to have a pandemic hobby is ipso facto an indication of good fortune and that having a hobby does not mean one doesn't also have and care about the job of teaching in a changing environment.  

Posted by Paul Horwitz on December 8, 2020 at 02:08 PM in Paul Horwitz | Permalink | Comments (8)

Tuesday, November 10, 2020

University of Alabama School of Law Hiring Announcement

I'm pleased to provide for my law school this hiring announcement. 

The University of Alabama School of Law seeks to fill as many as two tenure-track positions for the 2021-22 academic year. Candidates must have outstanding academic credentials, including a J.D. from an accredited law school or an equivalent degree (such as a Ph.D. in a related field). Entry-level candidates should demonstrate potential for strong teaching and scholarship. The primary focus of these positions is in Contracts and Torts; however, qualified applicants in other areas may be considered. Among our secondary interests are Family Law and Business Law. We welcome applications from candidates who approach scholarship from a variety of perspectives and methods. The University embraces diversity in its faculty, students, and staff, and we welcome applications from those who would add to the diversity of our academic community.

Interested candidates should apply online at https://facultyjobs.ua.edu/postings/47619. Salary, benefits, and research support will be nationally competitive. All applications are confidential to the extent permitted by state and federal law; the positions remain open until filled. Questions should be directed to Professor Fred Vars, Chair of the Faculty Appointments Committee ([email protected]).

The University of Alabama is an Equal Employment/Equal Educational Opportunity Institution. All qualified applicants will receive consideration for employment without regard to race, color, religion, national origin, sex, sexual orientation, gender identity, gender expression, pregnancy, age, genetic or family medical history information, disability, or protected veteran status, or any other legally protected basis, and will not be discriminated against because of their protected status. Applicants to and employees of this institution are protected under Federal law from discrimination on several bases. Follow the link below to find out more.
“EEO is the Law” http://www1.eeoc.gov/employers/upload/eeoc_self_print_poster.pdf
“EEO is the Law” Poster Supplement http://www.dol.gov/ofccp/regs/compliance/posters/pdf/OFCCP_EEO_Supplement_Final_JRF_QA_508c.pdf

Posted by Paul Horwitz on November 10, 2020 at 06:15 PM in Paul Horwitz | Permalink | Comments (0)

Monday, October 19, 2020

New Article: "A Few Grains of Incense"

I recently posted on SSRN an article titled "A Few Grains of Incense: Law, Religion, and Politics From the Perspective of the 'Christian' and 'Pagan' Dispensations." It's coming out shortly in the Journal of Catholic Legal Studies. It's kind of a sequel to the journal's earlier symposium on Steve Smith's book Pagans and Christians in the City: Culture Wars From the Tiber to the Potomac. The journal's editors were extremely kind and patient with me and I am grateful.

The paper operates from within the Christian/pagan typology Smith uses in the book. (Note that the terms should not be taken wholly literally, at least as he uses them in the modern era, but largely refer to a distinction between what he calls transcendent and immanent views of meaning.) I have my differences with that framework, but I also find aspects of it useful in thinking about the culture wars and about law and religion in something other than a standard religious vs. secular or left vs. right way. In any event, for purposes of the article I was interested in developing certain ideas from within that framework rather than critiquing the framework. (I often find, in workshops and job talks and so on, that I get more personal mileage out of adopting the author's framework and exploring its implications, some of which an author may accidentally or studiously neglect or avoid, than from going at it frontally.)

My goal, which is somewhat of a piece with a couple of other semi-recent articles of mine, was to think about and add some detail to our understanding of the dynamics of culture wars in general and with respect to law and religion in particular. It does not offer any proposals for reform. Although I offer some speculations about the conditions under which rapprochement are most likely, I don't offer much reason to believe that those conditions currently exist, and would add that there may be factors, such as the combination of polarization and social media with epistemic closure and separate social and institutional fiefdoms, that make those conditions less likely to appear. I would also note that since the article was written, some of the observations at the end of the piece about the ways in which the war over religious symbols that Smith describes actually extends beyond religious symbols alone have become somewhat more pertinent.

Here's the abstract:

This Article attempts to provide a schematic look at the dynamics of contemporary culture wars around law and religion in the United States. It proceeds from the framework provided by Steven Smith’s recent book Pagans and Christians in the City and engages with that book, sometimes positively and sometimes critically, but taking Smith’s framework as a given. A key insight provided by Smith is that the Christian-pagan conflict, past or present, had less to do with the belief that the other side was dangerous than with the view that it was obstinately unreasonable in refusing the terms of coexistence offered by the ruling dispensation. Culture wars of this sort thus start not with immediate conflict but with failed compromises. Differing premises and worldviews lead to a misunderstanding of what constitutes a large or small sacrifice, start a cycle of distrust, and lead each side to seek power so that it may be the side to set the terms of compromise rather than the one faced with accepting or refusing it. I examine this dynamic in two areas discussed in Smith’s book: religious accommodation, and wars over symbols. I conclude with an examination of the circumstances under which culture-war peace is most likely to occur, and find little reason for optimism that either currently applies.     

Posted by Paul Horwitz on October 19, 2020 at 09:36 AM in Paul Horwitz | Permalink | Comments (0)

Monday, October 12, 2020

Standard Arguments Against Confirmation (Alas)

At least for the past 33 years, two arguments seem to lead the pack as standard justifications for voting against a judicial nominee, especially a Supreme Court nominee, who is otherwise "well qualified" for  the office:

1) "Extreme": The most popular, because most generally and easily applicable, begins with the acknowledgment that the nominee may be otherwise well qualified for the office, and that the person opposing the nomination does not object to the fact that the nominee is conservative, or liberal, or what have you, as such. But this nominee is not just conservative/liberal/what have you: He or she is "extreme" in his or her views, and those extreme views are "disqualifying." (Here is a recent example.) 

2) Scandal: The other standard argument is that regardless of the nominee's other qualifications or of whether the nominee is or isn't "extreme," he or she has done something that is scandalous, improper, illegal, or what have you, but in any event so bad that the nomination should not go forward.

Stipulate that either of these may, in fact, be good reasons for voting against a nominee and that there are nominees for whom, on almost any reasonable reading, one or the other reason may apply. It remains the case, it seems to me, that both of these arguments are bad standard arguments. That is, whether or not they are sufficient reasons to vote against a nominee, they should not be held up as the standard primary arguments or, which ends up coming to much the same thing, treated as necessary arguments.  

That's not because they're wrong in themselves, but because the incentives involved are damaging and arguably not wholly within the conscious control of any senator, let alone the Senate as a collective body. If the supposition is that a "well-qualified" nominee is entitled to confirmation unless he or she is extreme, and a senator wants to vote against that person for the obvious reason that he or she is likely to cast votes that the senator doesn't want, of course one will describe the nominee as extreme. There's not much of a penalty for getting it wrong predictively, and since "extreme" is a standardless word, it's not clear what getting it wrong means as a descriptive matter. Indeed, given its malleability, the influence of epistemic bubbles, and the number of people who have decided that their mission in life is to move the Overton window, the senator may even come to believe that the nominee is "extreme" even if he or she didn't start with that belief.

As for scandal, there are reasons to take it seriously. But absent a clear standard and burden of proof, reasonable but strictly observed time limits, and other controls, relying on this as the other major justification for a negative vote will at a minimum lead to protracted confirmation processes in the hope that something will eventually emerge that "raises serious questions." On the margins, there will of course also be questions about what is or isn't scandalous, questions that are subject to the same cognitive effects. (I think this line of attack will have a number of other negative effects. I think the character of office-holders matters, But I doubt that a trend in which anyone entertaining the idea of public service is encouraged to order his or her life to conform to the Boy Scout oath is a positive one even for those who care sincerely about the character of office-holders. It does not follow that if having office-holders of good character is good, demanding office-holders of superficially unblemished character must be even better. But I'll rely here strictly on the basic point.)

People often bemoan party-line votes. But it's not clear to me that they are as damaging to the process, or to the federal courts, as a system in which people profess loyalty to the proposition that a well-qualified nominee should be confirmed but then must perforce frame a "no" vote in terms of the "extreme" or scandalous nature of a particular nominee. On the whole, I like the proposition that a well-qualified nominee should be confirmed. At least I would like it, if I felt I could trust senators to abide by it and not rely on escape hatches, or if I felt that the media environment was such that disingenuous statements would be treated as such rather than amplified.

Without that kind of environment, it seems to me that I would vastly prefer a senator to call a nominee well qualified and vote against him or her explicitly on the basis that the nominee might rule in a way the senator doesn't want. Perhaps the counter-argument is that there is a constitutional "norm" or "settlement" or "convention" favoring the confirmation of well-qualified nominees. And I believe in the value of constitutional norms, and am delighted that the renewed interest in them reveals a deep and abiding love of tradition. Who knew? But if that's the norm (and one should generally be suspicious of any specific invocation of constitutional norms), it's a bad one, at least unless it is observed by people of character. Under the circumstances it would be preferable for senators, who are politicians, to cast political votes. It would save a lot of fuss and bother. But they should be openly political votes.         

Posted by Paul Horwitz on October 12, 2020 at 06:02 PM in Paul Horwitz | Permalink | Comments (0)

Monday, September 14, 2020

Two Pieces on Algorithms and Institutions

This is a good time to be writing about institutions, which I have done for some time--and a depressing time for those who think institutions are valuable and are watching them suffer in real time, as much from the inside as the outside. Via the invaluable Arts & Letters Daily, here are two recent pieces on the effects of metrics and algorithms on two "First Amendment institutions." 

The first, from the LA Review of Books, is by Mario Biagioli, a professor of law and communication at UCLA. In it, Biagioli discusses new and old forms of academic misconduct, largely but not exclusively around publication and citation practices, and their relationship to various forms of ranking or influence metrics. (The focus here is on other disciplines, especially the sciences and social sciences, not on law. I would be interested in seeing a similar piece from him about legal academic practices, although I think the difficulty here would be getting people to see some practices as academic misconduct, or at least institution- or discipline-damaging conduct, rather than as baseline or even commendable practices.)

The second is an essay in The Walrus by Russell Smith, a former columnist for The Globe and Mail. It discusses the effects on newspapers of algorithms tracking reader interest in various stories, including the looming presence in newsrooms of large screens monitoring "engagement, in real time, with the stories currently on the paper’s website"--where "engagement" means something other than any meaningful definition of the word--and their effect on editorial judgment and resource allocation in the major press. (Any online reader of the New York Times, whose decline as a quality newspaper is steady, remarkable, and far-reaching in its effects on the business and content decisions of the institution, can see the traces of these practices daily. They are evident not only in the devotion of prime space to things like recaps of late-night monologues, but in the practice of using and testing different and increasingly clickbait-y headlines for same op-ed pieces and other stories. This is the kind of practice that major media organizations used to worry about rather than engage in with seemingly untroubled enthusiasm.)

I recommend both pieces, dispiriting though they may be.  

Posted by Paul Horwitz on September 14, 2020 at 09:36 AM in Paul Horwitz | Permalink | Comments (0)

Monday, September 07, 2020

Data--Rough Data--on Bar Exams and Covid Cases Among Test-Takers

With due caution and various caveats but a serious underlying point, I commend to you this post by Derek Muller at the Excess of Democracy blog. Derek writes of his efforts to obtain information on "the spread of Covid-19 related to the administration of" the July 2020 bar exam in the jurisdictions that held in-person bar exams this summer.

Derek reports that he heard back from bar officials in seven jurisdictions and, "to their knowledge, no one contracted the coronavirus on account of the administration of the bar exam. . . . Some additionally confirmed that no proctors or staff contracted it, either." He adds that "some jurisdictions did emphasize they asked test-takers to disclose if they contracted the coronavirus within 14 days after the exam, and none did so."

Of course caveats apply. I can come up with many; you can come up with many; Derek did come up with many, and notes them near the top of his post. I am personally less sanguine than him when he writes, "My instinct is that if someone did contract the coronavirus during the administration of the bar exam, we’d probably know by now." I'm not sure I have an instinct about this one way or the other. But my imagined scenarios for under-reporting embrace, at a minimum, secrecy, incompetence, caution about making disclosures, uncertain standards of causation, and a lack of organized data collection. (Asking test-takers to disclose is better than nothing but doesn't seem a terribly powerful effort.)  

I do not, then, take the post as strong proof of anything. And its interest for me is quite disconnected from my policy views on the bar exam, now and generally. It is possible to think the in-person bar exam is dangerous for current public health reasons without opposing the bar exam generally, and equally possible to think that it's relatively safe, or can be made so, and that the bar exam should be replaced by something else for other reasons. Our normative and policy views and our sense of the evidence on a particular point needn't move in parallel, and there may be reasons to be suspicious when they do. 

I appreciate and commend Derek's post because it is an effort at collecting data to evaluate the many warnings and predictions that were made about the bar exam ex ante. Leaving aside the students and recent graduates, many academics made various predictions or voiced various concerns before the bar exam. These concerns included but weren't limited to the question whether in-person bar exams would spread the virus among test-takers. (Another ex ante argument was that there would be a shortage of lawyers and a surfeit of new clients with pandemic-related legal service needs, and that diploma privileges or other measures would assist in improving access to legal services for those individuals by those new lawyers.)

Voicing ex ante concerns about risks is perfectly understandable. One can hardly wait until after the event to express worries about future risks. And the outcome doesn't mean the concerns about risk were unwarranted. But it seems to me that, at least for those whose arguments were based on academic expertise, or invoked that expertise and appealed to past and ongoing empirical study of the issue, or otherwise invoked a kind of academic or data-driven or scientistic authority in making various arguments, there is an arguable duty to follow up and see what the data ultimately revealed about the accuracy of those warnings. In the long run that would include, I should think, studies of the discipline levels of this cohort of new lawyers depending on the approach taken in different states. And it would be useful in the shorter term to work to find out whether any state's approach actually resulted in any difference in the level of legal services provided to clients in need, and whether those services were provided by new lawyers or by already existing practitioners.

I'm not a particular fan of the bar exam, as I've written before, although I also think some claims for the value of the diploma privilege and some claims against the bar exam seem overstated, and that a period of mandatory supervision in lieu of examination ought to be of meaningful length and contain reasonably detailed requirements for both the supervised and the supervising lawyer. But none of these views have anything to do with whether it's a good idea for those who make predictions to follow up on those predictions with data after the fact. Of course it is. The data would be interesting in themselves, and a better measure of the authority of those making predictions than a general appeal to their credentials. (Even experts can fare poorly in making predictions.) 

I am sure that many of the academics who offered warnings before the fact are working to collect such data, that doing so properly takes time, and that they may well end up being getting and reporting more thorough and careful results than this. I acknowledge the possibility that sometimes no data may be better than some data. Better, sometimes, to know you don't know than to be overconfident that you do know, based on anecdata or weak data. It depends, I think, on whether writers are careful, in the absence of any data, about emphasizing the lack of data and how it affects the strength of their arguments--and on whether a person with some data is equally clear in emphasizing those limits. But I'll take this as an interesting step forward, and one that required genuine time and effort on Derek's part. 

 

  

Posted by Paul Horwitz on September 7, 2020 at 04:19 PM in Paul Horwitz | Permalink | Comments (0)

Sunday, August 30, 2020

Should Any Words Be Categorically "Eliminated" from "Legal Pedagogy?"

The answer, I think, is "no." But apparently opinions may vary.* 

I should think it is neither possible nor wise to categorically "eliminate" particular words from legal or any other form of pedagogy. Of course there are many words one might choose not to use in teaching. Given that I teach constitutional law, sometimes including free speech, and legal ethics, I am a little surprised by the words I have not used in my classes. My choices are influenced by many factors. Certainly sensitivity to the views and needs of my students is one of them, although it's not necessarily dispositive. Not begging for trouble is probably another factor, although I try not to let it be. A major point of tenure is to ensure that when the choice is between avoiding trouble and making an independent academic judgment about what teaching or scholarship require, one chooses the latter. (The same is true before tenure, at least for good professors and good institutions. It certainly should be.) Like most things in pedagogy, those decisions, whether they turn out to be right or wrong, are contextual, particularized, and multivarious. What else could they be?   

*[In fairness, although the language in the title of the post is apparently the exact language that a law school dean used (albeit the story is from Above the Law), she did not say precisely what she meant by it. It is far from clear to me that a dean in a public law school could order that any particular word be "eliminated" from "legal pedagogy" at his or her institution, and pretty clear--at least I think it is--that most professors would, at a minimum, politely ignore such an order.]

Posted by Paul Horwitz on August 30, 2020 at 10:32 AM in Paul Horwitz | Permalink | Comments (0)

Friday, August 21, 2020

Koppelman and Inazu on Speech, Teaching, and Journal Policy

A slightly late and (these days) rare intervention to commend to readers two recent pieces. At Balkinization, Andrew Koppelman has this post about the proper response to incidents involving professors whose use of (relevant, if arguably ill-advised) language in the classroom provokes upset or protest in other realms. He also links to a--sorry!--characteristically thoughtful law review response piece by John Inazu, titled "Scholarship, Teaching, and Protest," in which John reaffirms the belief in the importance of racial justice that he has voiced in so many of his writings, but also urges greater clarity and (a word, and a sort of language, that our society can always use more of) "grace" in particular responses.

Leaving aside other issues and leaving open room for agreement or disagreement with the points made in John's piece, I would underscore a point that is made there: Different institutions carry out different functions in different ways, and may perform poorly, or undermine their core and valuable institutional functions, the more they undertake actions that are far removed from or even contrary to their institutional role and competence. We are in a moment in which institutions and their core functions, professionally undertaken, are simultaneously distrusted (not without reason, and not without much of the distrust being self-inflicted in various ways) and necessary. We should always be willing to question and reform them, and always wary about eliminating them altogether or insisting that all institutions ought to do the same things in the same ways. As I wrote a while back, we have witnessed some recent events and decisions that "raise[] some serious institutional questions" for and about particular law reviews "at a minimum, if not more generally for American legal scholarship," as well as other academic and speech institutions. My sense is that many of my colleagues (and no doubt many law students) share my concern; that this concern is indeed institutional and in the service of important intellectual and institutional values, not a concern about the substance of various views; and that many of them are reluctant to publicly acknowledge those concerns. The concerns are important; the reticence about saying that one shares them may be just as important.             

Posted by Paul Horwitz on August 21, 2020 at 01:05 PM in Paul Horwitz | Permalink | Comments (0)

Wednesday, June 17, 2020

Why the Ought Intersects with the Is So Quickly in Law School Teaching Job Advice

At the "Summary, Judgment" blog, as Howard notes, Will Baude and Adam Chilton are offering a series of posts on how to get a job in legal academia. I'm not sure the subject is as neglected as their introductory posts suggest. There is at least one book on the subject, and it has been blog fodder for years, along with things like Brian Leiter's "Paths to Law Teaching" page, which has been around for over a decade. But no doubt there is room for more (and more recent) advice, and of course there's a lot less available on this subject than on getting jobs in other (and larger) disciplines or academic sectors (such as the humanities). Certainly I find the advice they have offered so far fair and useful. But....

In one interesting post, Chilton writes that the advice he plans to give will honor the point that "giving advice and debating reforms are different conversations. My experience has been that people often quickly pivot from advice about how to succeed in legal academia to debating how legal academia should be reformed." He also suggests, in a way that I think is dimly related to this point, that one reason it is (in his view) hard to get good advice about how to become a law professor is that aspiring professors in other fields get the best advice from their peers, such as fellow grad students, and from professors in social environments, and that both of these things are rarer in legal academia.

I wonder if there aren't some very good reasons why it's hard to separate the is and the ought when it comes to law school advice, or at least why the question of reform is likely to spring to mind so quickly in the law school context. Take as an example Chilton's latest post, on "how to spend your time in law school if you want to be a law professor." The advice is sensible enough: attend lunch talks, take paper classes as well as exam classes, sign up for academic workshop courses, hit the necessary targets (law review, clerkship) but don't wait on them before taking other steps toward your goal of teaching. But not every school has significant numbers of lunch talks, student attendance is very rare at most of those schools, and many schools don't have academic workshop courses. Some schools are heavy with paper courses, and others are not.

Indeed, the kind of school Chilton is talking about is, really, a top 20-ish law school. Even then, the advice is probably most fitting to the 15 or so schools in the top ten. Even so, all this advice is still a stretch at some of those schools. And even where it applies, it may not be of much use. Sarah Lawsky's hiring report tells the story every year, and it is largely the same story: a lot of Yale, a lot of Harvard and Stanford, a fair amount of Chicago and Berkeley and NYU, then a quick drop-off to such undistinguished also-rans as Columbia, Michigan, and Georgetown. (Plus Hebrew U! It does very well indeed--although all the Hebrew U grads covered in this year's report took a doctorate from a fancy-pants American university.) There are indeed hires every year who come from other schools, including US law schools "below" the top ten-ish. Most of those hires (but not all of them) have doctorates. There is credentialism in other fields, of course. But for various reasons, including a stronger disciplinary base and the much larger number of schools involved, compared to American law schools those fields look pretty darn good.  

I don't mean to discourage anyone who is not already taking a lead-off from third base from aspiring to a law teaching job. (I went to a [very good] law school outside the US, but also had an LL.M. from the typical fancy American school and various other elite credentials, and still encountered a lot of resistance beyond the amount of resistance I richly deserved. I'm glad I persisted.) Given the remarkable, mechanical credentialism and path-dependence of the American law school hiring process, however, it is probably fair to say that the first and most important piece of advice to any law student who is thinking about a law teaching job is "Be at the right law school in the first place." (Of course I'm sure Chilton knows this, and the point is made by Baude in an earlier post.)

And people who are already at the right law school usually already have a great deal of social capital of the kind that goes unremarked because almost everyone who is part of the discussion already has it. They already know, for example, that for whatever reasons it's a good idea to be at Harvard or Yale--a point that is far from well-known to all even if one leaves out family commitments and things of that sort. They already know that there are some schools that, to quote Chilton's post, are especially helpful for getting a job in "private equity" (if they know what that is--I'm not entirely sure I do) or "politics" (albeit not so much the useful kind of political position, like city councillor or school board member, and more the less-useful kind, like member of Congress). They probably already know that it's to their advantage to cultivate professors and other useful figures rather than avoid them, and have been doing it so long it feels natural and as if it has nothing to do with self-interest. And so on. Of course there's a lot more they can learn, both in order to get a job as a law professor and--no less important, albeit this is a normative rather than descriptive point--to learn how to be a good (as opposed to succesful) teacher and scholar, one who serves his or her institution and discipline, and understands and exemplifies academic virtues and values. (One does occasionally encounter people who have enough brains and facility to become successful law professors, and who do just that, but who do not have an academic vocation as such. They like the job, or the platform, or the perceived prestige, and the teaching and scholarship are something of a means to an end.)

Baude and Chilton are quite clear that their goal is to provide practical advice and not recommendations for reform. But one can understand how quickly one's thoughts turn from one to the other. It is simply hard to hear certain words of advice coming out of one's mouth without quickly becoming critical--or cynical. (I think the same thing is true of advice on how to publish successfully.) At least that is true if one voices, or at least recalls, the often-unspoken presumptions. "Cultivate an interest in scholarship" is sound and not terribly troublesome advice. "While attending Harvard, cultivate an interest in scholarship" is sound advice that, one hopes, leaves a somewhat sour taste in the mouth. I'm sure that choosing the right luxury yacht is a difficult decision involving many complex factors, and that good advice can be given on the subject. But I wouldn't be terribly surprised if many a writer for SuperYacht World ended up confronting some nagging thoughts, and started thumbing Piketty or Veblen on his or her lunch hours.

I don't disagree that giving advice and debating reforms are different discussions. But it seems to me that in this area, at least given the glaring nature of the presumptions and prerequisites involved, that "pivot" is hard to avoid--and, if we want academically sound and virtuous as well as successful aspirants, perhaps we shouldn't avoid it.    

Posted by Paul Horwitz on June 17, 2020 at 11:54 PM in Paul Horwitz | Permalink | Comments (0)

Thursday, May 07, 2020

Using the Diploma Privilege to Reflect on What We Do and What We Ought to Do

I suspect most readers would agree that the ABA Journal gets worse every year, perhaps understandably. (It costs money to put out a good journal, among other things. And the market for eyeballs has gotten fiercer.) But I thought this article, which I found via Paul Caron's blog, was pretty good. There has been a good deal of both sincere and strategic invocation of Wisconsin's diploma privilege of late as we look to alternatives to the bar exam in the short and long term. But those invocations are often heavier on citation than on detail. This article quotes Wisconsin lawyers and educators on why they think the diploma privilege works in their state. It could do more still, but it's a good start. (Its author, Stephanie Francis Ward, deserves credit by name.) In doing so, it reflects, and allows reflection, on what lawyers need and on what is needed to train them--and, by contrast, on what we actually do to train them.

On the first point, the lawyers quoted emphasize a few points: 1) the lawyers they see who get into trouble are not necessarily young, but what one might call early-mid-career, some 10-15 years into practice; 2) their troubles stem less from incompetence than from dishonesty and poor judgment; 3) specifically, according to the  director of Wisconsin's Office of Lawyer Regulation, the causes are "a poor or nonexistent mentor; anxiety, depression and chemical dependency; inadequate organizational skills; character issues; and a lack of business acumen."

For practicing lawyers and for those who teach legal ethics and thus encounter discussions of the subject, at least, much of this won't be terribly surprising, although it's useful to see it nicely packaged. It is possible that the 10-15 year point has to do with the size and nature of the cases one gets, with the germination and worsening of substance abuse or other personal problems over time, or with emerging from under the supervision and care of a mentor and from working in a team to working alone or as a team leader. But it also invites more general thoughts about the life-cycle of professional practice, or indeed of work in many fields, and of the strengths and weaknesses of each period of one's professional life, in one's inexorable journey from energy and callowness, to skill and hubris, to wisdom and senescence.

The emphasis on things other than legal knowledge is noteworthy. Do we stress honesty, integrity, and virtue enough in legal education? In life in general? I doubt it, in part because I doubt one can ever stress it enough. Certainly I stress character and honesty when I teach legal ethics, and add grace notes about it in all my classes. But I could do more. There is a tendency in legal education either to stress technical acumen more than character and virtue, or to confuse the teaching of social justice, or right thinking, or just policies, outcomes, and theories, with the teaching of good character, and to think one has accomplished the second task if one has emphasized the first set of ideas. Of course they are not the same. One can be a person with fine ideals and a lousy character, or commendable in one's goals but lousy in one's tactics, or possessed of a decent set of views on personal character but withal weak or untrustworthy. 

I also find the emphasis on organizational skills useful--and painful. Those who teach legal ethics or are in practice know that the most common causes of disciplinary complaints involve neglect of cases and failure to communicate with clients, as well as complaints about fees and more serious problems such as poor management of funds or fraudulent activity. Most of these involve organizational issues and many of them could have been prevented relatively easily.

I emphasize things like returning calls when I teach legal ethics in part because (and here's the painful element) my organizational skills are much poorer than they should be. People who harbor ambition or simply want to be well thought of don't like to confess such things out loud; I certainly don't. But my inbox is too long, I have too many unanswered emails or phone calls, I sometimes delay the painful duty in favor of the easy activity (like blogging), and I don't make the best use of my RAs or my assistant. I am not alone in this, surely, but that doesn't make the realization much less painful. When I reflect on what I did poorly in practice and still haunts me, I remember the failure to stay properly in touch with a particular client. Had I remained in practice, I suspect that organizational issues, not legal acumen or larger character issues of honesty and integrity, would have been my worst problems. Perhaps I would have overcome them and perhaps not. Like most people, law professors tend to focus on what they are good at and assume these are the most important skills or qualities to have. Thus they are perhaps more inclined than they should be to assume that legal acumen and raw intelligence are the key to professional success--and, accordingly, that they would have been successful lawyers had they stayed in practice for the long haul. Surely these are requisite skills and no doubt they are some lawyers' Achilles' heels. But even if they're necessary, they're not sufficient, nor are they the cause of most client complaints.

Do we teach these qualities? Can we? Is law school set up to teach them, or does it do so only incidentally, such as by cramming several exams into a short period? No doubt many of us grant extensions on papers and such fairly generously, thinking that the quality of mercy is not strained, and perhaps that extensions happen often in practice. But perhaps we should be stricter and more Draconian about such matters in law teaching: insisting in practice and not just in theory on excellent attendance and marking students absent for lateness, refusing to grant extensions short of truly dire circumstances, setting hard deadlines for intermediate steps in the paper-writing process and marking students down for failing to meet them, and so on. Better organizational training would entail greater administrative costs for law professors and might hurt their teaching evaluations or lower their course enrollments. It might have a disproportionate impact on some students. The proper answer to these concerns might well be, tant pis. Better that we bear the brunt than that clients do, or that some students suffer now rather than having both them and their clients suffer later. 

Some of us, in writing about why the Wisconsin diploma privilege cannot be loosely invoked or suddenly applied to all schools in all states, have emphasized its insistence on a set curriculum that takes up a great deal of law school. It's thus interesting that the lawyers and educators quoted in the story don't emphasize this in particular, although perhaps other Wisconsin lawyers and law teachers might. What they do emphasize is captured in a nice quote from Gordon Smith, a former Wisconsin prof who is now dean at BYU:

"Law schools aren’t set up to be the gatekeepers to the profession in the same way they might be if they really were the gatekeepers. I suspect that those of us who taught at Wisconsin or Marquette recognize that there’s a special obligation to ensure that the students who graduate are competent to practice law. We’re the last stop, other than character and fitness."   

Again, this is useful for thinking about what is needed to train lawyers, especially in the absence of a bar exam, and about what we actually do or should be doing. It does not contradict a modern emphasis on things like wellness, student happiness, thinking of students as consumers (or students thinking of themselves as consumers), making legal education available to as many students as possible, or legal education as a good in itself. But it may be in some tension with it, or at least suggests that these things are not ends in themselves but should be thought of in terms of how best to do the job of gatekeeping. Treating students well, compassionately, and as human beings does not, for example, mean that we shouldn't flunk them if they do poorly. Providing more resources for learning how to write instead of assuming students already have those skills, and spending time patiently teaching them those skills, doesn't require that one pass a student who still can't write competently (at the least; why not insist that in order to pass, they be able to write well?) at the end of that process. (The same is true of requiring mathematical skills for law students, something we don't really insist on at all even if we should.)

By and large, it seems to me that most of our gatekeeping happens at the front end. At many schools, the "gateway" schools or degree mills excepted, it's hard to get in but not so hard to graduate. (For that matter, at virtually all law schools it's very hard to get a job as a professor but the tenure rate is very high--higher than in other fields. We emphasize uniform high standards along specific dimensions, not experimentation and pluralism in hiring with more error correction at the tenure stage. At that, teaching and service are less important than scholarship for tenure, and even then the demands are not terribly great. I'm not sure whether these similarities are related or not. I suspect the latter at least affects the former.)

There are plausible justifications for this. But those justifications are also subject to the normal tendency to be influenced by self-interest or institutional need. It is true that one can do other things with a law degree besides practice law, or gain some value from a one-year certificate in, say, legal compliance--and it is also true that both justifications have the benefit of putting students in seats and money in the bank. We are more rigorous in selection (in substantial part for ranking-related reasons) than in evaluation and weeding out. We are more concerned with basic performance than with competence to practice law or character and fitness. Our grading curves have more to do with ranking than with culling, and we mostly test for things that are more measurable, and easier and cheaper to administer en masse, than testing for genuine competence to practice law--which, again, we can justify on the basis that practicing law is not the only function of a legal education. Most of the harder and more unpleasant tasks we slough off onto the bar, sometimes with the justification that it's not our job or not our skill set, or that if law schools turfed students based on fitness and character concerns they would be more intrusive and perhaps more arbitrary or discriminatory.

Certainly a focus on acting as strenuous gatekeepers, at least in terms of competence to practice and perhaps also in terms of character and fitness, would require a change in who we hire (look at all the Ph.D's in this year's hiring report), how we teach, how large our classes are, how we evaluate, and how much we spend, individually and institutionally, in terms of time and resources. It would make us less profitable and perhaps more disliked by students. And it would emphasize our function as a professional training institution, not an academic and scholarly field, and thus push us further away from the century-long dream of being thought of as a genuine academic discipline, more like a history department than a beauticians' school.

I offer no strong conclusions. My goal is simply to suggest that the article provides food for thought about what the Wisconsin lawyers and educators think works about their setup and why, and thus about what law schools in general ought to be doing--and what they are actually doing. I can't help but note a certain irony or tension in the current circumstances, in which we are both urging something like an emergency diploma privilege approach and have chosen to adopt pass-fail grading for the semester--with, I am guessing, an assumption or instruction on the part of most schools and professors that few if any students should actually be given a failing grade. We are thus simultaneously using the gatekeeper approach to justify current emergency measures and moving even further away from actually acting as gatekeepers. I'm not criticizing this, or not overmuch. We deal with sudden circumstances as best we can. And much of the movement quickly turned in the direction of supervised rather than unrestricted practice. (Although, on this point, it's worth noting the Wisconsin lawyer regulation official's quote identifying a "poor or nonexistent mentor" as a leading cause of disciplinary trouble. A proper system of supervised practice demands that we give thought to what sound supervision actually requires and impose meaningful and costly demands on both the supervised and the supervisor.)   

But in thinking about longer-term models, we ought to think about what we need to be doing and how it differs from what we do currently. We ought to understand the role of things like compassion more precisely, as a way of dealing with people and their problems and getting the most and best out of them, and not mistake it for the absence of high standards or an unwillingness to make hard and painful decisions--including the decision that someone doesn't belong in law school or in practice. We should avoid the temptation of wanting to be liked, or likable, or popular, especially by leaving the unpopular jobs for someone else: bar examiners, or character and fitness committees, or disciplinary bodies. We shouldn't necessarily keep the features we have now--cheap exam methods, light tenure standards, high graduation rates, large classes, multiplying non-degree programs, aping other academic departments, or what have you. We certainly shouldn't retain them simply because we like them, or because they make us feel like academics and not professional trainers, or because they will ensure that fewer schools go out of business, even if there are independent and plausible justifications for those features. This seems like an excellent time to reflect on what we do and what we should do, and to think about ways we can make life more demanding and less pleasant for law professors and law schools, and perhaps even for law students.       

Posted by Paul Horwitz on May 7, 2020 at 11:42 AM in Paul Horwitz | Permalink | Comments (2)

Tuesday, April 21, 2020

Zoom Faculty Meeting Incentive Structures: Some Urgent Proposals

We just had our first faculty meeting since the advent of what the TV commercials are calling "These Uncertain Times." (Vastly preferable to "In The Age of," in my opinion. I now believe I was too generous before, and that law reviews should shoot for a zero percent target for articles using that phrase in the title.) It was a genuine pleasure to see my colleagues' faces again. It was not, however, a short meeting. No one is to blame! But it reminded me, with a chill of recognition, of a legal academic Facebook friend's Boschian description of a faculty meeting, relatively early in the Uncertain Time era, that was still going after four hours. And it occurs to me that, perhaps without our recognizing it, the incentive structures for faculty meetings have suddenly changed significantly and dangerously. 

I take as a general proposition and guide for living that any meeting that lasts longer than 60 minutes should be counted as a failure. (There are exceptional cases, of course, but they should be as limited as possible.) Usually, a meeting scheduled at an inconvenient time, or near the end of day and around the advent of rush-hour traffic, offers at least some incentive for people to wrap things up and head to class, home, or otherwise to get the heck out of Dodge. But Zoom meetings already take place at home. You're already seated in your favorite chair. You're not dependent for refreshment on catering, which at well-organized meetings can be cunningly organized to maximize the desire to wrap things up in a hurry. (For example, offering a tiny number of diet Cokes and a large number of Sprites, or a nut mix calculated to maximize the unpopular nuts and provide an insufficient snack to each person given the attendance number, or rigging the ratio of chocolate chip to oatmeal cookies.) Those who enjoy long meetings--there's one in every bunch--and who perhaps are not weighed down by child- or elder-care requirements or other responsibilities can protract the meeting indefinitely and literally at leisure. Impatient looks and sighs directed at that colleague, which rarely work even in person, are even less effective online.

This simply won't do.

One possible solution is a simple policy change: For any meeting, each participant must agree to raise or lower the temperature of the room in which he or she is sitting to a painfully uncomfortable level. This will serve as a proxy for the general inconvenience and painfulness level of in-person meetings. (I think heat would work better than cold: one can always keep bundling up, but modesty and fear will prevent faculty members from stripping down too far. But your mileage may vary.) The obvious problem with this proposal is that it seems to depends largely on voluntary self-enforcement. But there is a possible solution to this problem. The smart thermostat has become a more common feature in bourgeois homes. Zoom could work together with Alexa and other Internet-of-Things hosts to track attendees' thermostat readings. Just as some places right now require a thermometer screening before one can enter a shared space, so entry to a Zoom meeting could be restricted until one registers a thermostat setting of at least 85, and one could be cut off for failing to maintain that minimum temperature. We might call this the Demon Seed Plan.  

As a friend--not an economist, admittedly, but as a law professor he may be assumed to be a general expert in any field--pointed out, however, there is a deeper incentive problem: Zoom pricing structures. Perhaps with the Endless-Meeting problem in mind, Zoom's free plan has a 40-minute limit on group meetings--quite a bit shy of the 60-minute failed-meeting mark, to be sure, but better safe than sorry. Most universities, however, mindful of studies suggesting that an audience's attention span in a lecture setting tends to drop off after 20 minutes, schedule their classes in 50-80 minute blocks. Accordingly, they have subscribed to premium plans that allow Zoom classes to go on ad nauseam--and Zoom meetings to continue post nauseam. This is a terrible structure, one in which the cheapness of one resource (cost per unit of time) allows, or even encourages, the overuse of another scarce resource (sanity and common sense).

I would thus like to propose another solution, one that is much easier to administer than the smart-home proposal. Call it the Ulysses Plan. A meeting organizer operating on a premium pricing basis can designate a meeting as falling under the Ulysses pricing structure. Once this option has been selected, Zoom will charge a steep and perhaps rising penalty fee for every additional minute over one hour. Of course there are still free-rider problems, but those can be fixed fairly easily. The penalty can be automatically deducted from the faculty research and travel budget. Or, if one worries--surely baselessly--that some people who indulge in the unnecessary prolongation of meetings are also people who don't do much writing or traveling, and thus won't feel enough of a sting, one can use Zoom's own technology to charge the fee directly to the salary or discretionary budget of each individual who is still speaking after 60 minutes. In this way, we can fully internalize the costs of failed meetings. Think of it as a pre-commitment measure, like stickK, but with a touch of the lash instead of the weak constraint of donation to charity.

I have focused on faculty meetings because they are what I dread know. But these proposals have a much wider potential application. Not only are there faculty meetings, there are university administrators' meetings. And, beyond the college gates, there is also--roughly speaking--every other meeting. When one considers the aggregate costs of Zoom-extended meeting lengths across the whole economy, it is clear that the total of lost minutes constitutes a significant financial drain in what are already economically precarious and Uncertain times. I do not, of course suggest that these simple measures would constitute a complete and effective remedy for our current economic difficulties. But I'm not exactly not suggesting it either.

I offer these proposals gratis. I am happy to give Zoom, the smart-home companies, and universities, corporations, and other meeting-plagued institutions the right to any intellectual property involved at no cost, for the sake of the common good. I ask only that after this is all over, as a small token of gratitude for saving millions of minutes of unnecessary meeting time, a modest bronze statue of me, in full Roman senatorial regalia, be erected in every faculty, university, and corporate meeting room.            

      

 

Posted by Paul Horwitz on April 21, 2020 at 09:57 AM in Paul Horwitz | Permalink | Comments (0)

Monday, April 13, 2020

New Law Graduates' Needs, New Client Service Needs, and the Bar Exam: Three Problems That Needn't Have One Solution

I admired Dan's post below on "the high costs of bar federalism." Although I can certainly appreciate his point, having experienced the issue first-hand as a youngster with a Canadian law degree and American LL.M. when I sought to enter practice and got tangled up in such rules, I take no strong view on the issue. What I admire, in addition to his passion and compassion and the years he has spent on issues like this, is that Dan addresses one issue, more or less, at a time.

I posted earlier on recent writing addressing emergency efforts to address the bar exam and licenses to practice at this moment. My basic point, made at some length, was that "we should separate the question of the emergency need for legal services in this crisis from our understanding that the same crisis may cause suffering and economic uncertainty for new law school graduates." Since then, there has been a good deal more advocacy on these issues and more action from state bars. I doubt that I have kept on top of it all as thoroughly as Dan. (One reason is that much of the discussion has taken place on Twitter, and I try to maintain a healthy ignorance of what goes on there.) One source I have found useful in its discussion of these issues is Derek Muller's blog, Excess of Democracy. Derek has also been writing about these issues for some time. Also worth noting is this blog post by the group of professors who wrote an earlier draft paper examining several options for addressing new law graduates' current needs and the imminent legal service needs of clients, a paper I discussed in my earlier posts.

In a post on his blog, Derek laments that some discussions and arguments about this issue "have spiraled away from the emergency-oriented concerns into more broad-based (and, in some ways, timeless) critiques of the bar exam generally." To that, I would add what I noted in my earlier post: that some proposed solutions to the concerns of imminent law school graduates have been combined, not especially clearly or entirely persuasively, with arguments that we are facing a sudden need for client representation for a host of new and vulnerable clients dealing. So we really have three issues that are being addressed at the same time, and that are often combined (and sometimes jumbled together): 1) What to do about current law graduates given delays or other problems with the bar exam? 2) What to do about clients who require legal services that are related to the current crisis, or whose access to legal services is being affected by the current crisis? 3) What to do about the bar exam generally? 

There are excellent strategic reasons to combine all three issues. They are in the spirit of never wanting to waste a crisis, or at least in the spirit of making the argument that is most affective, most persuasive, and likeliest to silence doubt or questions and encourage a bandwagon effect. The problem with combining them is the potential loss of the soundest, clearest thinking and the wisest short- and long-term solutions. For those who are deeply concerned by the needs of law graduates or clients, or who have long been advocating changes and see a sudden road opening up that will give their arguments traction and light a fire under the feet of institutions accustomed to delay, that may seem like a trivial cost. But it does not necessarily lead to the best solution for each individual problem--only the fastest one. And in the longer run, if it turns out that the assumptions about problem A that are used to argue for a solution to problem B are unsound, it may undermine trust in either the solution or the expertise and authority of those who argued for it. That is not a great problem in itself, both because experts are rarely punished for being wrong and because if these particular experts are discredited, others will come along. The greater problem is that it will undermine trust in expertise and authority even when they are merited and properly wielded, and despite the societal value of having trust in expert knowledge and institutions.

I try to separate the three questions in what follows. I apologize for the incompleteness and crudeness of my thoughts but not the length of the post. If a crisis in legal services affecting millions of vulnerable people (at least if one accepts that premise), a fairly radical nationwide change in current licensing rules, and a possible long-term change to legal licensing and legal education--because a change in legal licensing necessarily requires immense changes in our current mode of legal education--are not worth a few extra paragraphs on a blog that often discusses legal education, I'm not sure what is. (I do apologize for any repetitions or undue paragraph length. "If I had more time, I would have written a shorter letter," and so on.) 

I. 

Of the three issues, the most important, I should think, is the question of addressing legal needs. If the co-authors of the blog post are right, the concern here is that "[l]ow- and middle-income people" who "already lack adequate access to legal services" will "urgently need lawyers" to address a range of "life or death issues." I can understand law schools worrying greatly about their students, and also focusing on the things they may know more about and be in a position to address. But on any reasonable moral calculus, and especially given that law schools are a branch of the legal profession and that the profession exists to provide legal services, I should think that this is clearly the main concern. Whether the particular arguments made to support the proposition that there is a looming crisis in legal representation are convincing is a separate matter. A citation to a Newsweek article noting the inevitable development of a COVID-19-related class action market, for instance, is unconvincing: there is already a substantial class action bar, it obviously is not having difficulty filing those actions, the merits of those actions remain to be adjudged and will surely be dubious in some instances, and class action lawsuits and settlements work themselves out over a much longer time frame. (The authors may mean that there is a desperate need for class action defense lawyers in those suits, of course. I can't speak to the data here. But it does not seem related to the needs of low- and middle-income people, except insofar as those suits contribute to increased unemployment.) But I certainly find it plausible that there is an urgent need for legal services in other areas.

As I argued earlier, addressing that issue requires addressing that issue. It may, or may not, have anything to do with the needs of new graduates. Arguments that "we need a secure pipeline of attorneys to fill" the kinds of positions in which lawyers provide services to those in need "now and in coming years" may be true. But once one starts talking about "coming years," one turns one's attention away from current crises, away from current clients, and even away from the question of whether changes are needed so that new graduates can practice law in June or July of this year (which, again, is not the specific issue of a crisis in client representation, but a separate issue).

If we want to solve this issue, we need to ask a series of basic questions involving both clients and lawyers. Where is the need greatest? In those places, what is the state of lawyer availability? In the relevant subject areas, given the necessity of practicing from a distance, what is the state of lawyer availability nationwide? More generally, we cannot assume that because there were not enough lawyers providing representation to clients in need in April of 2019 (if that is indeed correct), the same holds true in April of 2020. We would want to ask: How many existing, licensed, experienced lawyers are not currently busy with legal work? It is surely the case that many experienced lawyers are currently facing a slowdown in legal work. How many of those lawyers who are not already taking on low- and middle-income individuals (and, I should think, small businesses) in urgent need of legal services, on a pro bono basis or otherwise--and I assume many already are doing such work--would be willing to take on some of that work? What could state bars do to encourage or even require such work by already-licensed and experienced attorneys, whether through existing pro bono networks and requirements or through new requirements, possibly draconian but no more unusual than some of the other actions that have been proposed? In doing so, how could the bars ensure that these lawyers' services are directed to the places and issues of greatest need? What could they do to relax reciprocity rules so that, for instance, an under-employed lawyer in Montana with experience in handling Social Security claims could take on those issues for clients in New York? Surely, if we take client needs as the most important thing and if we believe these individuals face a crisis, we should start by trying to give them a pipeline to lawyers who are already experienced at practicing law and thus most likely to be of the greatest help. We certainly should not assume that we need to turn in the first resort to green lawyers, and certainly not because of assumptions based on the pre-COVID-19 legal profession.

It is more than possible that new law graduates might still be needed to supplement the best possible lawyers for these desperate clients. (In which case, it would make the most sense to relax bar admission rules on the condition that the new graduates do only the kind of work that falls within the category of urgently-needed legal work for low- and middle-income clients.) But to solve the problem of client needs, we should be asking first and only what is best for those clients. I should think that would involve first trying to connect them to lawyers with the most experience--or any experience--in practicing law. That may or may not be of help to current law graduates and may or may not have anything to do with the bar exam. But those, I repeat, are separate questions. 

II.

The second--and separate, if potentially related--question is how to address the needs of current law graduates. If my previous post seemed less sympathetic on this point, despite a number of statements making clear that I do care about that issue, it was because my focus--in keeping with the focus of the authors of the paper I was commenting on--was on client needs. But of course I do care about my students and about law students generally.

It is still the case, however, that caring about them does not mean advocating that they immediately be admitted to practice. That measure is justified only if it will not harm clients. Current graduates face two concerns: They face serious financial needs, and they greatly desire to begin practicing law. The two concerns are not the same, and fulfilling their desires is less urgent than addressing their urgent financial needs. There are a number of things the institutions with the closest relationship to graduating law students could do to address the first need. Law schools fully refunding their spring semester tuitions, for instance, would be a considerable financial aid that would not require any changes in current practice rules. So would law schools forgiving all debt related to this semester. Reducing or zeroing out faculty pay for several months would be a drop in the bucket, but it wouldn't hurt. (Of course it would hurt faculty. But that's less important. And it is in some tension with the routine claim, which I admittedly find extremely dubious, that law faculty can always easily find high-paid work in legal practice.) Law firms could play a potential role, too. Large or medium-sized law firms that have already hired some of these students could take a financial hit and agree to hire and pay them until they are able to take the bar exam, even if they cannot currently engage in some forms of work. They would still be able to do other forms of legal work, of course, so it would hardly be the equivalent of a no-show job or a total loss for the firms. And to the extent that the focus of various arguments right now is on the desperate need for legal services for low- and middle-income people, those law firms should be sacrificing some present profit to do that kind of work pro bono anyway, and these graduates could still perform some kinds of work that would help the existing lawyers at those firms in their contribution to that effort.

In short, and leaving aside other forms of financial relief from state or federal governments for which these individuals might be eligible on the same basis as anyone else (which seem to have been greatly neglected in discussion so far), there are many ways to address the question of financial need for new law graduates that do not necessarily involve any changes in legal practice rules or any risks to clients. They merely require great sacrifices from institutions, including law schools and law firms, that have at least some resources. (Enormous resources, in some cases.) In some ways, some of these steps would be better for new graduates, albeit more painful for law schools and other institutions, because not every graduate will have a paying job waiting, and simply having a license to practice law is hardly the same as a guarantee that one will actually earn a living any time soon.  

It now appears that the trend in addressing the current needs of law students faced with the apparent impossibility of taking the bar exam (assuming it is impossible) is one of supervised practice. Although I raised questions about some of the different options discussed in the co-authored article I commented on in my last post, I was pretty clear that I like the idea of supervised practice--that, indeed, my own licensing experience in Ontario relied on it and was a better guarantor of knowledge and fitness to practice law than a bar exam. So I'm glad that this is the general trend. I should point out that in the provinces I was acquainted with, articling students served for nine or twelve months (in addition to taking a different form of bar exam). Things may have changed a good deal since then. But I find it highly questionable that three months of supervised practice, the amount some have recommended, is genuinely adequate to ensure competence to practice law in the absence of further testing. I would find it highly questionable at the best of times, given how brief a time that is. It is even more questionable at present, given uncertainty about what and how much work these new lawyers would be doing, and how much variation there would be in the degree and competence of the supervision. A crisis cuts both ways: in favor of doing something, and against the likelihood of doing it well and in a way that guarantees the protection of vulnerable clients. 

There are arguments against supervised practice and in favor of a so-called "diploma privilege." Supervised practice would not necessarily directly benefit every new graduate. It would not help those who want to or perforce must enter solo practice. It raises questions about specific details of implementation in a way that simply granting a privilege to practice law would not. It quite likely would have a disproportionate impact on students, benefiting not just those with the best grades (which does not seem inherently unjust), but also those with the best connections and pedigrees, and having less benefit for first-generation law graduates and other less advantaged students. If our only concern was that of putting this year's graduates in the same position they would be in had they not faced the impossibility of a safe and timely bar exam, then the diploma privilege would be the most "fair and equitable" approach, as a pair of third-year students write eloquently and movingly in the piece linked to above. And I did say that if we properly separate the three different issues, we should address this issue simply in terms of helping current law graduates.

But, of course, for a helping profession, the goal of helping new graduates cannot be absolute. It cannot be accomplished in a way that harms potential clients or even meaningfully risks harming potential clients. It has to be accomplished in the best possible way given the constraints of professionalism and of putting clients first. Supervised practice addresses those concerns. (No doubt other means could be found of addressing them; and one might add that even with supervised practice, additional measures might be needed to satisfy them.) It does require us to work out details of implementation, but that is as much a feature as a bug. Ease and universality of application is not always a benefit; it depends on what problems it leaves unaddressed. The "diploma privilege," at least unadorned by the kinds of restrictions or requirements that would also raise questions of implementation, achieves "equity" and universality by simply allowing everyone who graduates from a law school to immediately represent clients, without any further quality control. And it does so under conditions that are not like the oft-cited state of Wisconsin, whose diploma privilege, as I noted in my earlier post and Derek Muller addresses here, is ringed round with requirements and supervision of law schools and involves a state with only 25,000 lawyers in total. (By contrast, California has some 170,000 lawyers and New York some 180,000 lawyers. It is easier for an incompetent or unscrupulous lawyer to go unnoticed in such a large population.) The universality of the "diploma privilege," at least unless accompanied by other rules and restrictions--which would themselves raise details of implementation and questions of equity--is just as much a bug as it is a feature. Insofar as the arguments that are typically made for a diploma privilege or other forms of immediate licensure include not only humaneness toward the graduates themselves, but also a concern for low- and middle-income clients and the new needs they face, those advocates should, at a minimum, be willing and eager to listen to concerns about how any particular approach might harm as well as help clients--even if that means selecting an approach that would not immediately help every graduate.

In short, at least based on what I have read so far, I think those states and advocates that have focused on supervised practice have taken the best available approach to the specific problem of what to do about current law graduates in this unique situation--as distinguished, I emphasize again, from the separate questions of what to do about client needs in the current situation and what to do about the bar exam in the short or long term. This is a provisional conclusion and subject to correction and innovation. Others have no doubt thought about the issue more, and more expertly, than I have. And someone might yet come up with a different idea than those that have been most popular or prominent so far. It may well be that a supervised practice approach would not be a universal solution to students' desire to practice law or their financial needs. But it seems the best available approach, given the necessary professional and ethical constraint of putting clients' interests first.   

III.

That leaves the longer-term fate of the bar exam. I would not be sorry to see it (or the current version of it, at least) disappear. I would be sorry to see it disappear without due thought for what needs to be done to ensure the proper education, training, and certification of legal professionals. And I would be sorry to see the question of what ought to be done to ensure access to legal services at this moment, and to ensure the fair and humane treatment of current law school graduates at this moment, confused or conflated with a much broader and longer-term policy question.

One needn't repeat the usual litany of arguments against the bar exam. There's no shortage of writings on the subject. What most of them have in common is that they don't advocate eliminating it immediately or thoughtlessly. There may be articles out there that argue that law school alone, as it exists today, is adequate to ensure competent lawyers who upon graduation are both ready to practice and certifiably trustworthy, although I haven't looked for them and they would bear an enormous burden of persuasion with me. (Since most law schools don't require the same curricular program as the two Wisconsin law schools, they are not an adequate comparator.) I know there are some writings that assert that twelve weeks of training after graduation would suffice. I find that highly doubtful, at least in the absence of significant changes to law school programs as they exist. (As I've said, I could imagine a longer apprenticeship serving that function.) But most serious treatments of the issue, even those that find the bar exam most unjustified, look for substitutes that will achieve in fact what the bar exam is supposed to accomplish, talk in terms of pilot projects, and show some awareness that in the absence of more general reforms, the bar exam, in combination with other measures, serves some purpose. There is a difference between hoping that "this pandemic will finally wrench us from our attachment to the type of competence predicted by closed-book, multiple-choice exam," to quote the Harvard Law Review Blog post I linked to earlier, and concluding that the cure for that "attachment" should be to get rid of the bar exam and continue everything else as it is save for the addition of an impromptu 12 weeks' apprenticeship--the length of a summer associate job, hardly a guarantee of competence or test of fitness.

To be clear, the blog post doesn't go as far as that, and many of its authors have thought at length and more carefully about what might replace the bar exam. If they recommend a short-term substitute for the bar exam, there are ample reasons to do so. Again, however, my point is neither to defend the bar exam, which I'd be happy to see replaced, nor to reject the idea of finding a temporary substitute for it, which I would also support. It's that we shouldn't confuse the question of what to do this summer, or even this February (although we lack sufficient information to do more than plan for contingencies that far ahead), with what is needed in the longer term.

If we are going to think about the longer term, it would be useful to think not just about what would serve as a substitute for the bar exam, but about what needs to accompany that substitute. Not every test is an evil, and one might think that while a two-day memorization and endurance contest is foolish, a series of shorter, subject-specific, possibly more skills-based exams, albeit still requiring substantive legal knowledge, would be a good idea. (The Ontario bar, at the time, had such an approach. It was at least sounder, in my view, than the two- or three-day exam approach.) Or one might go with more of an apprenticeship model. But if we did, surely we would want clear and demanding rules and guidance concerning what each apprentice must learn and what each supervising lawyer must teach. (What use is an apprenticeship as a certification that someone can practice law, if that person is not required to perform a range of legal tasks, but learns only how to do document review?) We would also want guidance on what constitutes satisfactory performance in an apprenticeship, since one assumes at least some apprentices or supervised lawyers might demonstrate that they ought not be licensed. We might, while we were at it, look for more demanding proofs of fitness and character, through the apprenticeship system and otherwise. Law school itself is no guarantee of either. (Some law schools may prefer it that way.) Of course all of this would come at no small additional cost of time and money to practicing lawyers, although better training and fitness might provide some recompense in the form of a reduction in malpractice insurance or a justification for stricter limitations on malpractice awards.

What of law schools? Remember that the oft-cited "Wisconsin diploma privilege" example exemplifies the difference between a privilege and mere license: the privilege comes with a demand that law schools teach, and students take, a larger number of mandatory courses, and with greater state oversight of those schools. That would be a start. So would a requirement of actual skills training, not the nominal form of skill-based teaching that consists of finding a way to satisfy the ABA that every course nominally fits within some "rubric" or other. Perhaps we might consider requiring that a large majority of each law school's faculty have a minimum number of years in the active practice of law--five or more, say--or requiring them to perform a minimum number of hours of meaningful legal practice each year while serving on the faculty. Or we might insist that students take a minimum number of credit hours with actively practicing lawyers, perhaps at the cost of reducing the number of full-time academic faculty positions. At some point, we might well wonder what purpose a third year of law school really serves, especially if would-be lawyers are required to serve a (meaningful, not brief and minimal) apprenticeship. And it would be a good time to think about prohibiting 100 percent finals and insisting that law professors evaluate students through a number of tests, varied in format, over the course of a semester.

Of course all of this would come at no small additional cost of time and effort, and perhaps loss of status, to current law professors. That doesn't seem terribly important. And few if any of these changes would come at a cost to law students. They would still pay tuition and attend classes for a given period of time (and perhaps a year less than they do now) before graduating; they would just have a different, and perhaps better, set of courses and teachers.

This model would not do much by way of conferring prestige or teaching law students to become law professors. But there's not much reason to care about prestige, as opposed to training competent lawyers, and there's very little reason why the genuinely academic and intellectual study of law has to take place at a law school or with a current law professor's salary. Other than a few hundred or thousand students (out of roughly 110,000 law students in the United States) at a few unrepresentative elite schools, I see no reason why most law students would or should care if their schools, and faculty, were subject to different and stricter requirements.

The only change the students might not like is that if law schools and state bars are not to slough off the duty of ensuring the competence and fitness of new lawyers onto the bar exam, it would behoove them to be much more serious about their duty to ensure this. Under such a system, they ought to be more demanding about admissions, more willing to flunk out first year students, or both. Insisting on a particular minimum attrition rate is perhaps as silly as artificially imposing a particular cut rate for a bar exam. But in the absence of a bar exam, one would expect as a practical matter both that law schools would expect and impose a higher attrition rate for first-year (especially) and upper-year students, and that supervising lawyers would be willing and required to state, at the end of an apprenticeship, that some candidate should not be given a license, at least without satisfying additional conditions. It would be better for everyone concerned, one should think, if law schools were more active in flunking students at the outset of the law school process than to allow things to wait until the end. It is also better for disappointed students to lose only a year's tuition than to pay three years' tuition, without a satisfactory result for themselves or for clients.

IV.

These are all interesting questions and prospects, and in many cases perhaps attractive ones. But they are obviously complex. I defer to those who have studied them at greater length and with more expert qualifications. But it does not take any expertise to realize that they are complex, and that they are separate questions. They are related, to be sure. They may be connected. But how connected they are depends in large measure on what is needed in each case. That they can be connected does not mean they must be connected.

That is especially true right now, when various actions are urged not because they would be wise in the long term but because they are urgently needed in the short term. Even if the best long-term approach to these issues requires a more global solution--even if, for example, a proper approach to the question of what should be required for a license to practice law requires changes to legal education, to the bar exam, and perhaps to the regulation of lawyers--it is not necessary that a short-term approach to these three questions requires that they all be addressed at the same time. Indeed, it is not clear that the question of what to do with the bar exam, other than what to do for the next one or two cycles, is an urgent or short-term problem at all. Nor, accordingly, is it clear that we should be paying much attention to commentary on that issue other than those discussions that relate to the short-term question.

We would think more clearly about these issues if we thought about them distinctly and functionally. For each of the two pressing issues, we should ask precisely what the problem (or the most urgent problem) is, what can be done about it, and who should do it. (In the short term, the bar exam counts as an issue only in the sense that we must ask, assuming we conclude that it is necessary to help clients or to help graduating students, what we need to do about it in the short term and what the absence of a bar exam might require by way of temporary compensatory mechanisms.) In each case, we should evaluate any proposed solutions against the metric of the best interest of clients. That is self-evident with respect to the argument that there is an urgent need for legal services, since serving the interests of clients is exactly what is at stake. But it is equally true for the question of how to help new law school graduates, given that legal education and the licensing of young lawyers are ultimately about a profession that exists to serve clients.

Thinking about these issues separately has at least two planning virtues and one other virtue. The planning virtues are these. First, doing so helps us to figure out precisely what problem we are trying to solve in each case. They are not the same problem. Helping to address what is argued to be an urgent need for lawyers to perform client services is not the same as helping to alleviate economic needs and insecurities facing law school graduates. The latter might help address the former, but it will only overlap and certainly is not the identical problem. Indeed, many other steps--direct economic relief, tuition refunds, debt forgiveness, and others--might fully address the urgent needs of new law school graduates without doing anything for clients. And requiring existing lawyers across the country to serve clients, particularly in the hardest-hit states or cities, might fully address the urgent needs of clients without doing anything for law school graduates.

Second, treating these as distinct issues helps remind us that the goal--assuming we accept that each case is urgent and demands not just some action, for the sake of looking concerned, but effective action--is to do what is best for each population, especially the client population. In addressing the client problem, ithere are many lawyers who are currently relatively idle and willing to take on work on behalf of a body of clients in need, or could be required to do so by state bars, and who are already experienced in the practice of law, presumably that would be better than funneling those clients to new and inexperienced lawyers, and at a minimum we should try to provide those clients first with the services of experienced lawyers and only then with inexperienced ones. In addressing the student problem, we should remember that the urgent question is financial; addressing the general desire to obtain a license to practice law despite the absence of a bar exam is important and certainly will be important to students, but is not as urgent and is more of a desideratum than a crisis. Insofar as "do no harm" is the key principle of any helping profession, we should fix the most urgent problem, financial need, in a way that requires as little of whatever risk to clients is involved in licensing inexperienced lawyers in the absence of a bar exam as possible.

To the extent that we cannot do so simply through measures that merely cause great financial loss to law schools and law firms, then it makes sense to go further. But we might tailor those approaches in a way that might not help everyone, but would do the greatest good for the greatest number of people without risking harm to clients. It would make little sense, for example, to license new graduates to immediately practice law on a solo basis, for populations or in practice areas that are not in a state of urgent needs, if it is not necessary. It would make the most sense to funnel new graduates into closely supervised practice under experienced lawyers, and either toward the clients who are in the most urgent need or, perhaps, away from them and into the areas where they could do the least harm. A large law firm, for instance, could redirect already-experienced associates to urgent legal relief efforts, while assigning more routine and/or longer-term work--under supervision--to new graduates.

As for the bar exam, it really makes much less sense to think about it past July or, on a contingent planning basis, February. Although I would happily support many reforms that involve getting rid of the bar exam, and although it might be nice to think that current events would move us out of complacency and lead us to re-examine it, we are unlikely to make the best or most cool-headed decisions about its long-term future in the middle of a rather time- and emotion-consuming emergency. We only confuse the issue--all three issues--by treating this as an urgent and central issue that demands an immediate fix, or by making arguments on this score that ultimately have more to do with reasons why some would like to eliminate the bar exam permanently. 

The third and final virtue is that separating out these questions is likely to lead to more reliable and trustworthy arguments, based on the most solid foundations and with the greatest amount of humility and narrowness, and allow us to rely less on sweeping efforts at persuasion, however moving, that jumble several issues together and then stir in emotion and affective rhetoric. It leaves us less vulnerable to taking steps that risk satisfying pre-existing, long-term agendas that some might favor but most of us have not thought about carefully enough. Expertise on the general issues involved-- in this case, legal education and its reform, the bar exam, client services--can be both a benefit and a drawback with respect to any urgent issue. Obviously, we benefit from the work and thought that has gone into amassing that expertise. On the other hand, the evidence suggests that experts are weaker at predicting than at describing, and it is also the case that some experts may have strong views or passionately advocate positions that outrun their actual expertise. Of course I am not suggesting that has happened in this case, with respect to any particular individual or position. But it is a risk. The phenomenon need not be conscious and deliberate. And onlookers who would like to arrive at a sound position on these issues will be ill-positioned to distinguish the recommendations that are warranted by the immediate and specific circumstances from those that pre-existed these circumstances and might not apply to them especially well. The best way to do that, at a minimum, counsels that we actually look at each problem in itself rather than treating all three issues as if they are the same problem or demand the same solution. 

 

Posted by Paul Horwitz on April 13, 2020 at 01:56 PM in Paul Horwitz | Permalink | Comments (0)

Tuesday, March 31, 2020

Today's Profile in Marketing Savvy: Martindale-Avvo...

...which sent me one of its regular emails offering law firm marketing services and such, and whose email today was titled:

"Don't just survive Covid-19. Thrive!" 

Posted by Paul Horwitz on March 31, 2020 at 04:45 PM in Paul Horwitz | Permalink | Comments (0)