Monday, April 15, 2019

"Barnette at 75" and "A Close Reading of Barnette, in Honor of Vincent Blasi"

I was grateful to Howard, the stationmaster of our blog, for inviting me to participate last fall in a wonderful symposium at Florida International University's law school on the 75th anniversary of West Virginia State Board of Education v. Barnette. Howard and the editors of the FIU Law Review invited a fine group of scholars (plus me) to speak, and it was a very good day, keeping in mind that "a very good day" is sort of the baseline in Miami. Now the Barnette symposium has come out in print and online. It can be found here

As Howard notes in his good and substantive introduction, the symposium is divided into three general topic areas. The first set of articles "focuses on Barnette's historical context." The second set focuses on "Barnette as text and the best way to read and interpret Jackson's words." (Justice Robert Jackson wrote the famously eloquent and aphoristic opinion for the Court.) The third and final set is on Barnette's "modern context" and "continued relevance"--especially its appearance in three major Supreme Court decisions in its 75 anniversary year: Masterpiece Cakeshop, Becerra, and Janus.

My contribution, A Close Reading of Barnette, in Honor of Vincent Blasi, is in the second category. As the title suggests, it's a "close reading" of Barnette, one that aims at reading Jackson's opinion itself and drawing all that I can from the text alone. My approach was inspired by the teaching and writing of Vince Blasi, who is one of my teachers and whose "close reading" assignments have inspired many of his former students who now teach in First Amendment law and other areas. Vince has long lamented that in legal education, students are generally asked to read and synthesize large chunks of doctrine drawn from small, chopped-up excerpts of cases, rather than reading individual cases in full and  engaging carefully with them as individual texts. His close reading assignments are an antidote to that. For years, I have gratefully stolen the idea from him and used it in my Law and Religion course, in which students do two close readings of individual cases or texts. Given the elite-reproduction nature of law school hiring, most of us owe considerable debts to teachers whose fame and prestige we can hardly advance and for whom we can do little in return that they really need. The best way to repay that debt is in how we treat our own students. But it was fun to pay explicit tribute to Blasi in this piece.

As it developed, I decided that I wanted to focus on passages other than the famous "fixed star" passage. It is almost literally an arresting passage: so evocative and powerful that it often hijacks the attention of scholars writing about Barnette, who thus neglect much else of importance in the opinion, including much that might help us read the "fixed star" passage more clearly. It is also worth noting and lamenting that my focus on the single majority opinion forced me to omit discussion of the concurring opinions, by Justices Black and Murphy, and Justice Frankfurter's dissent. The concurrences are generally ignored. Frankfurter's dissent in particular has long been short-changed, in large part because of the arresting nature of the opening, deeply personal passage in which he identifies himself as "one who belongs to the most vilified and persecuted minority in history." That passage has encouraged a general dismissiveness toward the dissent, in which casebooks (which skip the concurrences altogether) quote its dramatic opening but treat the dissent (most of which they omit) as a defensive outburst justifying his opinion in Gobitis and his place on the so-called "wrong side of history" in the flag salute litigation. There is actually much to learn from the concurrences and Frankfurter's dissent, each of which in various ways previews arguments and competing views--especially about law and religion--that would recur for the next 75 years and counting. For a fine recent discussion of Frankfurter's dissent, check out this piece by Sam Moyn. For various reasons that I hint at below, I think we can expect a revival of somewhat supportive scholarly interest in Frankfurter's dissent.        

Here's the abstract for my piece:

This article, written for a symposium marking the 75th anniversary of West Virginia State Board of Education v. Barnette, offers a close reading of Justice Jackson's opinion for the Court. In doing so, it offers an implicit and explicit tribute to Vincent Blasi, whose teaching and writing have emphasized the value of deep, careful engagement with the language and arguments of a single text, such as a judicial opinion, and who has been an inspiration to me and many other contemporary First Amendment scholars.

This close reading explores a gallery of passages from Barnette that have received relatively little scholarly attention, largely because Jackson's arresting "fixed star" passage has monopolized much of the discussion. But other passages in the opinion help reveal additional important points about the case with important broader implications. They suggest something about why Jackson treated this as a speech rather than a religion case and as an individual liberty case rather than an equal treatment case. They have implications for arguments about third-party harms, "government nonendorsement," student speech, and heckler's veto doctrine. And they underscore the importance of Jackson's description of an autonomous "sphere of intellect and spirit" and of the limits of state power in this area. Perhaps much more than has been recognized, Barnette is a paean to the sovereignty of the mind, and in doing so it treats this realm as much or more as a matter of state non-interference than as a subject for measured judicial balancing.

Although I focus closely on the text of the opinion itself, I offer some larger assessments of Barnette's condition today. I make two general observations. First, on the one hand, Barnette had an excellent 75th anniversary year, with citations and discussions in major Supreme Court decisions suggesting its stock is high. On the other, I suggest that it is in much poorer health in academic circles. A striking number of scholarly discussions of current issues, such as the wedding vendor cases, omit Barnette altogether. I suggest that these omissions are evidence of a deeper discomfort with Barnette. And for good reason: As this close reading reveals, the words and deeper music of Barnette are in genuine tension with current popular positions on these issues, and suggest that at some point these scholars need to engage directly and seriously with Barnette. Second, I argue that in interesting ways Barnette is a kind of "pre-capitulation" of much that happened in First Amendment law in the 75 years that followed it. This is true not just in the sense that Barnette positively inspired a great deal of First Amendment doctrine, but also in the sense that much of the jurisprudence that followed consisted of efforts to cabin Barnette and its implications and to build safety valves around it.

As the abstract suggests, although the heart of the article is the close reading itself, I do make some broader points about Barnette's place in First Amendment law and about how constitutional doctrine develops. I also argue, in an admittedly speculative fashion, that there is a kind of disjunction between Barnette's status on the Supreme Court and its status among legal scholars. As I note, many articles that might well have been expected to discuss Barnette have instead omitted it altogether. That may change after the most recent Supreme Court decisions, but that's hardly certain (and not all citations are genuine discussions). Of course, in making a general observation based on a citation search of recent legal scholarship, I do not deny that there are "honorable exceptions." But I do suggest that there are good reasons to suspect that many modern scholars might be (or ought to be) ambivalent about Barnette, given the import of that case for the implications of the theories and arguments they have been advancing of late, and that this ambivalence might express itself in part by bracketing Barnette through silence. I hope more of them will take it on directly and forthrightly, and without simply employing the usual lawyer's skill of narrowing or distinguishing it. Read for all it is worth and with its "music" in mind, it means more than that, and suggests real conflicts with the kinds of arguments that have been popular in recent years among First Amendment scholars--but not, for the most part and notwithstanding Justice Kagan's dissent in Janus [the initial post accidentally said "Masterpiece Cakeshop" here; my apologies and thanks to a commenter for pointing out the error] and its invocation of the rather unhelpful meme of so-called "weaponization," on the Supreme Court itself.

For some of these scholars, it might be that reflection will lead them to reject Barnette, in whole or in part. There's nothing wrong with that. The opinion isn't Holy Writ and indeed it's not the scholar's job to treat any text or opinion as beyond question. The worst that can happen is that openly questioning Jackson's opinion might deprive them of some strategic or rhetorical resources in advancing their arguments, and make it less likely that such arguments will win support from judges. But that only matters for political or litigation purposes and is irrelevant for actual scholarly purposes. Taking on Barnette directly, and without resorting to the usual lawyers' expedients, seems to me necessary for scholarly purposes and likely to make the kind of scholarship I am thinking of richer, more candid, and perhaps more self-critical (or bolder). And let me note finally that this symposium itself provides some such efforts. Pieces by Abner Greene, Erica Goldberg, Genevieve Lakier, and Leslie Kendrick all take on Barnette in the context of modern First Amendment debates on and off the courts. I'm delighted. I commend those pieces and the entire symposium, possibly including my own contribution, to readers. Enjoy! 

 

Posted by Paul Horwitz on April 15, 2019 at 09:41 AM in Paul Horwitz | Permalink | Comments (1)

Monday, April 08, 2019

"Honor, Oath, and Office"

I've put up on SSRN a short piece I wrote for my law school's alumni magazine, The Capstone Lawyer. It's a kind of introduction to a larger project--a book project, I hope, although it will have to wait in line behind several other projects--on oaths and the Constitution. The abstract is not much shorter than the piece itself, which is short--probably shorter than many of my blog posts!--and (I hope) readable. (It also has great art and some neat photos. I'm grateful to Monique Fields, who is responsible for the Capstone Lawyer and for making it look so good.) I hope readers enjoy it. Here's the abstract: 

This contribution to the Culverhouse School of Law's Capstone Lawyer magazine is a short introduction to a larger, ongoing project on oaths and the Constitution. That project seeks to examine the relationship between oaths and constitutional interpretation, and to argue for the revival of honor, suitably revised, as an essential virtue in citizenship and office-holding.

The focus here is on the intimate connection between the concepts and institutions that I call the "troika": office, honor, and the oath. Office is best thought of not simply in terms of power, and with the officer viewed merely as any individual who happens to exercise a power-wielding office at a given moment. Instead, the key feature of office is duty, and the officer is defined as much by the limits on his or her power as by its exercise.

Honor is the institution that connects the officer to his or her office. Properly understood, it has both internal and external aspects and involves more than the love of fame. Honor is the desire to be thought well of by those whose opinion ought to count, and the desire to *deserve* to be thought well of by that honor group. This "quality of character," as Sharon Krause puts it, this "ambitious desire to live up to one's code and to be publicly recognized for doing so," is essential if office-holders are to fulfill the duties of their office with virtue and excellence. And it provides the office-holder with a valuable sense of energy and agency. The character of the men and women who occupy offices thus remains an essential element of our political and constitutional order.

In our constitutional system, the device that ties individual honor to the ostensibly "impersonal" office is the oath. The oath is a linchpin that connects the individual to the office and the office-holder to the commitment to act honorably. It is imperfect, and in contemporary society both honor and oath require substantial rethinking and revivification to function properly. But the oath is not unimportant and is no mere empty ritual. Taken together, this troika of institutions--office, honor, and oath--encourage the sound and faithful performance of one's duties in a democratic constitutional republic. Thinking about the troika shifts our focus from power to duty, and from substance and doctrine to character and virtue. It helps us to see that a "government of laws and not of men" is and must be powerfully and ineluctably personal.

Comments on the larger project are emphatically welcome [via email]. I note that the subject of the oath, and of the importance of duty and character in office-holding, has given rise to a growing literature that is well worth exploring.

Posted by Paul Horwitz on April 8, 2019 at 10:00 AM in Paul Horwitz | Permalink | Comments (0)

Thursday, April 04, 2019

A Jot on Jamal Greene's "Foreword: Rights as Trumps?"

At Jotwell, I have this "jot" about Jamal Greene's Rights as Trumps?, the most recent Foreword in the Harvard Law Review Supreme Court issue. As I note in the piece, the Foreword "project" is itself a fascinating one, superbly discussed in this article by Mark Tushnet and Timothy Lynch, which suggests among other things that for various reasons Foreword articles are often disappointing. There are good reasons to think the article needs an update in the present era, discussing whether and how the "project" of those Forewords, and of the Supreme Court issue, might or must change given developments in the technology and timing of scholarship. Regardless, as a confirmed and unrepentant old fogey, who still likes looking at new issues and tables of contents and thinking of journal issues as issues rather than accidental collections that are soon to be disembodied and float around Westlaw, I still look forward to the Foreword, even when it disappoints me.

Greene's article does not disappoint. It makes some valuable points--including one, about the "less momentous" nature of the "paradigmatic conflicts of a modern, pluralistic political order," that runs pleasingly contrary to the usual rhetoric of scholarship and extra-scholarly propaganda by legal academics, who have strong political, professional, and careerist incentives to treat every new dispute as an urgent, high-stakes one and scoff at the existence of serious competing claims on the other side of the position taken. As is usually the case with my jots, I try to remain loyal to Jotwell's mission of telling the reader why I like Greene's article "lots," while also raising questions about it. Enjoy. Or skip the jot and read Greene's article. 

Posted by Paul Horwitz on April 4, 2019 at 08:44 AM in Paul Horwitz | Permalink | Comments (1)

Friday, March 22, 2019

"A Grimace and a Shrug"

I have the pleasure today of attending a conference on "Academic Freedom and Free Speech on Campus" at Emory, whose Center for the Study of Law and Religion has been kind enough to host me as a visiting scholar this semester. The speakers include Nancy Leong, Jacob Levy, Sasha Volokh, Julie Seaman, David Bernstein, Sigal Pen-Porath, Deborah Lipstadt, Greg Lukianoff, and many more.

The conference is closely tied to Emory's Open Expression Committee, chaired by Sasha Volokh and including stakeholders from across the university. I applaud Emory for having a committee like this, which does an excellent job of avoiding what seems to me a problem with current university management of campus speech issues: that different offices and constituencies with potentially very different views about free speech and/or the university mission or their own office's mission are often spread across campus, and don't necessarily address the same issue at the same time or speak with one voice. (Would that my own university, which more than deserves the "yellow light" rating given it by FIRE--and which has managed the neat trick, not of prioritizing "liberty" over "equality" or vice versa, but of doing a poor job on both--had such a committee, and one that was as active as Emory's committee is. On these issues, Alabama's faculty is at least as responsible as its administration for not doing all that it could and should be to protect free speech and academic freedom.)

The conference turns out to be even more timely, given President Trump's issuance yesterday of his executive order on "Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities." The key paragraph of the order with respect to campus speech is this:

To advance the policy described in subsection 2(a) of this order [to "encourage institutions to foster environments that promote open, intellectually engaging, and diverse debate, including through compliance with the First Amendment for public institutions and compliance with stated institutional policies regarding freedom of speech for private institutions"], the heads of covered agencies shall, in coordination with the Director of the Office of Management and Budget, take appropriate steps, in a manner consistent with applicable law, including the First Amendment, to ensure institutions that receive Federal research or education grants promote free inquiry, including through compliance with all applicable Federal laws, regulations, and policies.

As Scott Greenfield nicely summarizes it at his Simple Justice blog, FIRE's statement responding to the order amounts to "a grimace and a shrug." On the one hand, it says, "To the extent that today’s executive order asks colleges and universities to meet their existing legal obligations, it should be uncontroversial." On the other, the order and its implementation bear watching for "unintended consequences that threaten free expression and academic freedom," and the order is unclear about "how or by what standard federal agencies will ensure compliance, the order’s most consequential component."

One could say a little more--one might grimace a little more heavily. That colleges and universities should meet their existing legal obligations, or abide by their own clearly stated standards in the case of private institutions, should indeed be uncontroversial. But whether the federal government should take a heavy role in ensuring that they do can be much more controversial. That can be true even for those of us who believe strongly in vigorous protection for both academic freedom and free speech on campus; think that universities should take a broad view of both; and worry that many administrations have shown very little willingness to do so, especially if it might mean getting bad publicity or upsetting (or disciplining, as it sometimes should) students, who to those universities are also "customers" in a national market for students and their tuition dollars.

I'm reluctant to either repeat myself and thus ride a hobby horse, or do too much to promote old work, but I'll end up doing a little of the latter to avoid doing too much of the former. The federal executive order comes after years of similar efforts on the part of state legislatures and proposals in Congress, so there's plenty of existing literature out there. With apologies for linking to Twitter and with the caveat that I take no statement there as anyone's fully worked out position, I do not think, with Jamal Greene, that such an order "would very clearly be illegal and unconstitutional." (To be fair, Greene was writing before the text of the order was issued.) Such bills or orders might be unconstitutional. It depends very much on what they do, and how far they intrude upon such academic governance issues as hiring; even if one favors greater ideological diversity on campus, that doesn't mean government can force that outcome by commandeering what ought to be disciplinary and departmental decisions. But Greene's broad conclusion is far from "very clear," and--obviously depending on what such a law or order says and how it is implemented--there are reasonable arguments that such a law or order can be constitutional. In the case of this order, the "consistent with applicable law, including the First Amendment" language suggests that it may turn out to be somewhere between self-limiting and meaningless in any event. (At The National Review, Stanley Kurtz argues that the order is "not the weak and largely symbolic move some claim. On the contrary, it’s a game changer." He may be right that the order will encourage universities to give a higher priority to ensuring that campus speech is protected. Beyond that, I find his assertion far too confident and exaggerated, and suspect it is more of an effort, all too common in public discourse, to make things so by saying they're so.) 

There are also very good arguments that such laws are a bad idea regardless. Again, they may be a bad idea even if one strongly believes in the protection of free and open expression on campus and of academic freedom, and thinks universities have done a poor job of meeting their duties on this score. Those of us who have argued that the law, and citizens and institutional stakeholders, should be more attentive to the role and function of various institutions in facilitating free speech, among other First Amendment freedoms, might argue that: 1) a vital, and in the long run valuable, aspect of these institutions is self-governance; 2) government interference with that self-governance, even in the service of the crucial value of free speech, might be a cure worse than the disease; 3) there may be room, especially in a nation with more than hundreds of public and private colleges and universities, for varied visions of the university mission; and 4) a key element of self-governance is the responsibility of both stakeholders--like faculty--and citizens to argue about those visions and to hold these institutions to account. At least for folks like me, that means insisting that if they are to have autonomy in governing themselves, they meet their corresponding duty to do so consistently with the respect for free speech and academic freedom that are certainly part of my vision of. the university.

On these points, I recommend a pair of posts by Keith Whittington. And from my own older work, you might look at this 2007 article, arguing vehemently against academic bills of rights on institutional autonomy grounds while insisting that that autonomy carries grave responsibilities with it for universities and their stakeholders, or pages 128-30 of my book First Amendment Institutions. I cite to other scholars who have argued that "such bills might survive a constitutional challenge," while arguing that things like an Academic Bill of Rights (or the new executive order) are "a mistake." Such efforts misunderstand the truth for search, and neglect the value and potential of both institutional autonomy and institutional pluralism. 

[Comments are closed, partly for irony value and mostly because I am otherwise occupied and don't have time to moderate the comments, as I prefer to do.]

 

Posted by Paul Horwitz on March 22, 2019 at 11:04 AM in Paul Horwitz | Permalink | Comments (0)

Tuesday, February 05, 2019

Criddle et al., Fiduciary Government (and one other general recommendation)

A friend just wrote noting that he has been blogging for 15 years now. We ran a series of posts around our tenth anniversary asking about the future of blogging and of Prawfsblawg itself, and doubtless one could write more today, probably gloomily, on the same subject. For those of us who are not enamored of hot takes or siloed "conversations," along with others who have been enthusiasts about the robust democratic world of social media but are starting to suspect that a platform like Twitter is not completely healthy, there is still (I hope) a role for blogs, although no doubt a smaller and chastened one. Certainly specialized blogs that are less about disguised op-eds or short draft versions of articles, but instead focus on the sifting and dissemination of useful information in a world of overwhelming content, like Larry Solum's blog or Jotwell, are still go-to sources for many of us. Similarly, one thing that some blogs I still frequent do well is to announce new or forthcoming books. People are still writing them and, I hope, reading them: there is more in heaven and earth than can be accessed through the Westlaw database. 

With that in mind, let me note the announcement by Cambridge University Press of a new book, edited by Evan J. Criddle and four other co-editors, simply titled Fiduciary GovernmentCriddle and other co-editors like Evan Fox-Decent have been writing on fiduciary theories of law--especially public law--for some time. But the subject, in my view, has flourished and taken on new interest in recent years. A larger number of authors--many of them seemingly influenced by what they may consider the rise of less faithful office-holders--are speaking in terms of fiduciary obligations, official norms and roles, and so on. As one who is specifically interested in the relationship between oaths, offices, and honor and the United States Constitution, I'm glad the subject is taking on more fans. I hope that new readers in this area will not be fair-weather friends, that they'll think and write about this subject (positively or negatively, but in a critical and engaged fashion either way) over the long term and extend their interest to related subjects (like, say, oaths, honor, and virtue ethics), apply it with equal vigor to other officers besides the ones they're not fond of, and won't necessarily feel the urge to turn the topic into one that is judicially enforceable or applicable through some doctrinal mechanism.

In any event, the book looks very interesting and wide-ranging. Contributors include the other co-editors, Andrew S. Gold, Sung Hui Kim, and Paul B. Miller; Laura Underkuffler; Nicholas Parrillo; and Prawfs' own Ethan Leib, who has a number of valuable articles published or forthcoming on this subject. It's priced to move--to libraries and other institutional buyers. But if you have a relationship with such a library, I hope you'll encourage it to obtain the book.

A quick note for those who like to keep track of new books: Another useful source for me is the St. John's Law and Religion Forum, which is an excellent source for news of new, mostly but not exclusively academic books, not only in the core of law and religion but across a broader range of interests and subjects. It's well worth reading it regularly.      

Posted by Paul Horwitz on February 5, 2019 at 10:29 AM in Paul Horwitz | Permalink | Comments (0)

Monday, February 04, 2019

The Upside of YA Literature's Internecine Warfare

This post is neither about law nor about the substance, such as it is, of controversies such as that surrounding Amelie Wen Zhao and her once-forthcoming debut novel "Blood Heir," which she has now apparently requested her publisher to pull from its scheduled release. This episode was part of a larger phenomenon of internal debate and internecine warfare in the Young Adult literature community, and particularly the version of that community that appears on That Dreadful, Socially Destructive Social Media site. A substantial, and certainly partial, take can be found on the Zhao episode and its larger context in this article by Jesse Singal, although I gather vaguely that there are some for whom citing Singal is like citing the Devil and who argue that the whole thing is substantially his fault for having the temerity to write about it. Doubtless the same is true, for some readers, about Kat Rosenfeld, who has also written about what she, and apparently other people, call the "toxicity" of "YA Twitter." (I want to be fair here and suggest that while that sector may be particularly egregious, it's hardly unique. Is there a non-toxic sector of Twitter?) But although I have views on these matters, these links are purely for context (and, for fairness's sake, here is a contrary take), and my views on the controversy are irrelevant here. I want to talk instead about the distinct upside of the possible implosion of the young adult literature industry. 

If I may indulge in a "When I was young" moment: In my youth, there was much less literature that could be characterized as "Young Adult" literature, and plenty of it was, as I recall, unsatisfying for any reader of even faint ambition. For an active and eager reader, the paucity of fiction (and non-fiction) aimed at intermediate readers led to an obvious response: To walk across the room, in a library or bookstore, and start reading adult literature. Some of it was a stretch, no doubt, but stretching is good. Some of it was beyond me, I'm sure, but that's not a terrible thing either and actually has interesting and valuable effects. One could sense the larger themes and ideas even if one was not yet fully conscious of or able to see all of them; that sense created a feeling of resonance and of looming deeper mysteries and experiences in life that enriched both one's reading and one's sense of the world; and rereading those books over time, as one got older and saw more of those ideas more clearly, created a layered sense of richness in one's reading life. This was an important part of how one actually became a young adult, and eventually an actual adult.  

I can't say whether the same ratio of good to mediocre or bad still applies to YA writing today, although I have no particular reason to doubt it. But the sheer quantity has certainly changed, and as such the number of what I will stipulate as "good" or involving books for young readers, especially novels and series of novels, has grown hugely. My kids are both skilled and eager readers, and I have seen in them (and in other kids) one result of the availability of all that YA writing: It's harder to get them to make that move across the library or bookstore, to make the transition from "young adult" to "adult" literature, even though they are more than capable of reading the more adult work. They read and reread their favorite books and series--and the profit motive ensures there's often a fifth or ninth book in that series. And they resist the suggestion that if they like a particular YA book, they might well enjoy a vast range of more challenging books, written for adults, that involve some of the same themes or genres but are much better written and much more challenging and involving. With so much available to them between the shallows and the depths, and with all of their friends reading the same things, they can simply stay in place and tread water--if not indefinitely, then for much longer than one could when there was a lower volume of such literature.

Let me suggest, or speculate, that if the entire YA industry (and an industry it surely is) were to implode tomorrow, torn apart in mutual recrimination and political warfare, or if that warfare were to result in the available work becoming ever more homogeneous, schematic, and unsatisfying, the result could be good for young readers. Leave aside the fact that much of this enormous inventory is mediocre: that's true of any large inventory of writing. But they would be more likely to do sooner what they should do in the first place, and preferably as soon as (or before) they are able: to move on, to move up, to read more challenging writing pitched above their reading level, and so to actually advance as readers, thinkers, and individuals. They would read LeGuin or Orwell or Huxley or Cormac McCarthy's The Road instead of the endless pile of so-so dystopian novels and series that they can gorge on indefinitely but without much nutrition. They would grow as readers and grow up as people. Every cloud has its silver lining, and it seems to me that the diminution or death of YA literature would have a pretty big upside. And that's just for young readers. It seems to me that a pretty substantial number of actual adults, both relatively young and older, are more than happy to remain in a semi-infantilized state, wallowing in the same literature as 11-year-olds, treading water below their "reading level," and treating fiction as comfort food. Perhaps some of them came up in the Harry Potter era and suffered the lasting effects of not having to stretch as much and as soon. (This is one reason that, although I know that in theory my kids should grow out of the YA field as they get older, I'm not positive it will perforce happen in practice.) They might have to grow, or grow up, as readers too.

As a postscript, let me note an idea that I stole quite happily from a friend. As a condition of the use of electronics (one could condition it on other things; for my friend, it's paying their phone bills), my wife and I require my kids to read one adult book of our choice each month. We keep their tastes and preferences in mind, since part of the goal is to help them realize that within their range of current interests there are many better and more challenging choices available to them, both in fiction and in history and other forms of non-fiction, and to get them to start browsing the adult shelves for themselves. But we also sometimes force them to read books we think they ought to read or to have read, regardless of their preferences. Parenthood is not, of course, all about making and keeping your children happy, being their friends, or doing what they want, and children are not their parents' equals in these or many other matters. Some of the books we've assigned haven't hit much of a responsive chord with them--for now, that is; who knows what effect reading that book will have on them some time in the future? Other selections have hit a chord, and have encouraged them to seek out other books and learn about new topics, but at a serious and challenging level instead of remaining perpetual Goldilocks types, content with what's "good enough" or "just right." It's been a very useful house rule. I encourage others to try it out if they too worry about their kids treading water instead of pushing into the depths, and certainly would love to hear about similar or other approaches. 

  

Posted by Paul Horwitz on February 4, 2019 at 09:18 AM in Paul Horwitz | Permalink | Comments (16)

Tuesday, January 22, 2019

"Pre-Tenure"* and "Post-Tenure" and Why They Should Be (Mostly) the Same

I commend to readers Carissa's post below and, by extension, the answers she got to her questions on That Awful Social Media Site. Someone recently reminded me of a post I wrote almost exactly a decade ago on advice for tenure. I wrote there, "Tenure generally isn't the biggest hurdle in the legal academy, for better or worse, so there's no point being unduly paranoid about it; and if that tenure is really going to be worth anything, you ought to be willing to risk it at least a little.  I should hope that we all decided to pursue legal scholarship for a reason, and that the reason wasn't just job security; so pursue it." It was admittedly written shortly after I had received tenure, but these were my views by the time I had reached the application for tenure stage. (Indeed, I passed up the chance for tenure to take a lateral position, which required me to move without the certainly of tenure. I can't say that the decision loomed large for me. And I made a number of decisions during my application period that were expressly about doing what I thought was right rather than professionally prudent, in part to remind myself of and commit myself to those views.)

Some of the same spirit is evident in Orin Kerr's response to Carissa's call for comments. Orin writes that "an ideal answer is not to change much at all, as in the ideal world the professor was already doing what they loved and wasn't doing what they were doing [because] of tenure considerations. This is more likely in law than other fields, I think, given high tenure rates." And he notes that he did a variety of things before tenure that were not on the usual menu of recommended actions.

I generally think that one should behave the same before tenure as one does after tenure. But Larry Solum's list of advice items was useful in clarifying this view slightly. There are some items on his list (specifically, 2, 4-6, and 8) that seem to be relevant to the potential difference between tenure-track professors who are untenured* and those who are tenured. For example, he writes that tenure "imposes a time frame" while tenure "removes it," and that this can affect the kinds of projects one undertakes. And he talks about using the time after tenure to "retool." Similarly, he talks about using the advantages and longer time-frame of tenure to consider new areas of teaching. As a final example, he writes in the same item that untenured professors are often more narrow, focusing on a particular subject or issue, and that one should consider expanding (including into new areas) after tenure.

Most of his other items seem equally applicable to both those without and with tenure. "Read inside and outside your field" is something that anyone pursuing this calling ought to be doing as a matter of course, in part because reading "outside your field" often adds new insights to the state of things "inside your field" and in the world, and in part because it is what civilized people, in or out of the academy--even those who generally focus on a particular subject matter--ought to do. "Self assessment," again, is something that should always be on anyone's mind, in or out of the academy, at least if they are interested in self-knowledge, humility, and the remote hope of wisdom. And remembering and focusing on "the intrinsic rewards" of one's calling, or being "present for your family or friends," are goals we should keep in mind at every stage of our adult and working lives.

There are, I think, two features common to all of the bits of advice Larry offers that seem most pertinent to untenured professors on the tenure track: 1) Those who are seeking tenure have a deadline in mind, albeit a generous one, and one that is even more generous now that many people start teaching in medias res, after already having done a fellowship and some writing and teaching. 2) Those who are in an early stage of their academic career are newer and younger and perforce have less knowledge--of their field, of the world, of their own strengths, weaknesses, and limits, of their colleagues and of the folkways of their own institution and of the legal academy. The first calls for some degree of care in choosing at least a few projects that can be completed in time, and for similar reasons in focusing to some degree on a particular area rather than having to learn new things for each project. The second calls for humility. Not necessarily prudence, of the political or strategic kind, and indeed too much cultivation of that kind of "prudence" may make one into a life-long calculator, flatterer, and self-censor. But it is fair to recognize that one doesn't know everything--about one's field, about teaching, about one's colleagues, and so on. The person who remains silent at a faculty meeting before tenure for purely calculating reasons arguably is failing in her duty of faculty governance; the person who hesitates before speaking because she is aware that she may not be aware of everything, that she may not have the right answers, that things might be more complicated than she thinks, and that the issue may have its own institutional history, and who thus wants to learn a little first, is acting wisely and humbly--prudently, even, but this kind of prudence is about one's best self rather than one's self-advancement. There are good reasons for these two factors to influence one's choices prior to tenure. The rest of his advice, it seems to me, is good no matter the stage of one's career.

So, both as practical advice and as a matter of academic and professional values, I would argue in response to Carissa's call for opinions and advice that for the most part, barring questions of timing and humility, one should be and act the same both pre- and post-tenure. As Orin notes, tenure rates at law schools are, as best as I can see from the data I have, much higher than they are for many sectors of the academy. It's true that one may also be thinking of "lateral" advancement, of fame and reputation, and so on. But even if one never moves from one's first job, for those of us who are called to this line of work even the "worst" job is the best job we have ever had. Given that, and however nervous one naturally gets about it, the reality is that tenure is not the highest of hurdles. One can, and should, think about the long term even as one keeps in mind basic shorter-term needs. Given the relatively small number of pieces required for tenure, there is room to write that book, or at least start writing it, especially if one has already done a good deal of writing and publication on the subject. There's room to think about one's teaching and service, even if humility and timing counsel not reinventing the wheel every semester. One should not see oneself as two radically different individuals--one calculating and cautious, one "liberated"--before and after tenure. 

I suggested that this advice is both practical and value-based. On the latter front, I have deliberately used the word "calling" throughout this post. That is what the life and job of a scholar and teacher is supposed to be, and one should treat it as one, and ponder and cultivate from the beginning the values and conduct of one who is called to this work. One's duties as an associate and as a partner may be different at the kinds of firms many of us worked at; but one doesn't save ethical conduct until one is a partner, and many an associate who is "called" to partnership will be thinking about clients, client development, and business questions early on, while many of us who are definitely only short-term associate material only sit in our offices and work. In any profession and/or calling, the younger professional may still have much to learn, but certain values and behaviors are supposed to be ingrained in one from the moment one begins and, in many cases, literally takes one's oath as a member of that profession. Someone who treats academia as a calling will, at least ideally, act with that calling in mind from the start and put the values, traditions, and ideals of the calling first, including putting them ahead of questionable calls that might aid one's own career. 

That said, the practical and the prescriptive are by no means wholly separate. The ideal conduct and values I'm urging here are not radically inconsistent with the hope of promotion and tenure, especially given our generally high tenure rates; even leaving aside how one should act, one generally need not be radically calculating before tenure. But there's another reason they're not separate. From the start of one's career, one is engaged in professional and personal formation. One's choices and actions inculcate values and habits that are likely to last a long time--perhaps for the whole of one's career. Without wanting to overstate the point, I worry that those who think they can act in a more "prudent" fashion pre-tenure--"prudent" in this case meaning cautious, careerist, deliberately silent, calculating, and so on--and will then act as they think they should act once they are tenured are underestimating the effects of their early choices on their longer professional formation and their identities. The person who learns early on to hide her thoughts, flatter the great, and judge every decision by how it will affect their advancement may internalize those habits and make a career of them. Tenure won't necessarily lead them to shed these habits. Moreover, they may end up applying those habits in turn to junior colleagues. The person who tells herself she should act "prudently" before tenure lest she harm her own professional chances may tell herself at the time that these are bad but necessary habits, that in an ideal world she would not have to act this way, and that she certainly won't treat new colleagues the same way. (On the other hand, cultivating humility and an awareness of what one doesn't know at an early stage of one's career is something one should do regardless of professional advancement.) But upon reaching tenure, she may find that she is repeating the same advice she got when she started--and she may even end up judging negatively those who don't play this kind of game as juniors, thinking of them as presumptuous, incautious, unwise, naively unaware of "the game," stubbornly or rudely unwilling to take her advice, and so on. What everyone is supposed to be thinking of as a temporary and unfortunate expedient may simply become the culture of the institution, both one's own local institution and the broader (legal) academy. We will reproduce careerism just as we reproduce hierarchy. 

Combining the two strands of this post, I would offer the following advice. 1) By all means remember that if you want tenure, you have a deadline and a set of requirements to meet by that deadline. Don't let it creep up on you and surprise you, and don't get so distracted by other things that you fail to do what is needed. 2) By all means remember that you are just starting out and don't know everything: not only about your field, but about your colleagues, your institution, and what it means to be a good or great academic. By all means don't hold your tongue at every faculty meeting, including on issues that matter a great deal to you, simply for reasons of self-preservation. Once you are a faculty member you are a part of the governance of your institution and have a right and sometimes obligation to speak. But remember that there are sometimes good reasons to be cautious in speaking: namely, that you may not know as much as you think you do about the issue, its history, or what your colleagues have already done. 3) Those two considerations aside, think of your work as a calling, think about what kind of academic you want to be, what academic values entail, and what kind of world you would want both untenured and post-tenure faculty to occupy--and act accordingly. Deadline and humility issues aside, do nothing before tenure that you believe you would find objectionable after tenure. Your views may change over time. But you will be getting an early start at cultivating the kinds of habits and values that will serve you, your home institution, and the legal academy as a broader institution well. 4) When the time comes to give advice and support to untenured colleagues, by all means offer prudential advice. But make sure the junior colleague knows that it is only prudential advice, that it's only instrumental, and that there are other kinds of advice they need as well. Offer and model deeper values and the concept of a calling, and encourage your junior colleagues to be their best and not just their most calculating selves as academics--and be sure to support them if and when they do so, rather than punishing them for not following regnant careerist conventions.

If you find that you are not doing so--that you are acting differently before tenure than you would want to after tenure, that you are acting as a careerist now while promising yourself that you will be "liberated" to pursue legal academia as a "calling" later, or what have you--then there are several possible conclusions you might consider. I say this with all due consciousness that we are all human and imperfect, that this includes tenured and senior colleagues as well as untenured colleagues, that it's understandable to want to keep one's job and achieve goals like tenure and advancement, and so on. One possibility is that your colleagues are failing in their duty: they are failing to treat the academic life as a calling and act according to its values. If it is really the case that they expect you to behave differently before tenure, and not for reasons of timing or humility, then your institution has a problem and its members need to think seriously about their values and conduct and about whether they are in the right place. Another is that you are making undue assumptions about your colleagues. You may assume that they all expect you to act in a particular way, and in doing so be giving them too little credit. Don't assume the worst of them right off the bat--even if it is true for some of them, and even if a senior colleague, perhaps one of those who imbibed certain "prudent" habits early on and forgot to let go of them after tenure, and who assumes the same is true of everyone else, tells you, with what might be undue confidence and certitude, that everyone and everything is political and you should act accordingly. 3) Although this seems harsh, it's not meant to be. It may be that it's you, not your colleagues, who needs to rethink things--including whether you really have a calling as an academic. It's surely better to think about that relatively early (although one hopes that one would think about it long and hard before ever taking the job or going down that road, and then commit to the right values once one has committed to that path) than too late--not just for yourself and your own happiness, but for the sake of the effect you will have on your own institution and on legal academia more generally as you become a senior colleague. 

* I have used the term "untenured" rather than "pre-tenured" throughout. I don't know when "pre-tenured" became the norm. Certainly there are times when one might need to distinguish descriptively between different professional lines or offices within the academy, the most prominent being tenure-track versus non-tenure-track. But when one is clearly talking about people on the tenure track, "untenured" seems a better word than "pre-tenured." There is no normative implication to "untenured," no insult or lack of dignity; it's a pretty simple descriptive term and, on the whole, a neutral one. "Pre-tenured," on the other hand, is technically accurate but seems to be designed with some vaguely therapeutic or validating purpose in mind, and to carry the loaded assumption that everyone who is untenured ought to be tenured. Except in cases where it serves some precise delineating or defining purpose, I'm not sure what justifiable linguistic purpose is served by the widespread adoption of the term "pre-tenured."     

 

Posted by Paul Horwitz on January 22, 2019 at 10:22 AM in Paul Horwitz | Permalink | Comments (2)

Wednesday, January 16, 2019

A Good Start?

Quite some time ago I wrote in a blog post that not only was I unsure why members of the Supreme Court attend the State of the Union address, I wasn't greatly sure why anyone else bothered to attend either. Any substance that might accidentally make it into a SOTU address can just as easily be delivered on paper. The spectacle part of the SOTU address might be considered worthwhile if it served as a some powerful device of national unity, like the national anthem or the final episode of M*A*S*H. Given that the actual spectacle has for some time consisted of half the room rising automatically to applaud almost anything and the other half just as automatically remaining stonily silent and seated, it is hard to say it serves that purpose anymore, if it ever did. (I'm sure it can and has on some occasions, but the occasions where it does are more likely to involve special congressional addresses than annual propitiatory rites.)

So I find it hard to consider the possibility that the State of the Union address might be canceled and/or rescheduled this year bad news. This, at least, is one one occasion on which a crisis presents a valuable opportunity, no matter whether the reasons for it are genuine, contrived, or somewhere in between. As Gerard notes below, there is no constitutional need for the full-Kabuki version of the SOTU to take place, and the nation survived just fine in the brief periods--between 1801 and 1913 and during the period between 1913 and 1934, when the SOTU was sometimes delivered in person and sometimes not--when the constitutional requirement was met through a written instrument. It seems to me that rather than reschedule the live address, we should just do without it this year, while insisting on a written report "from time to time," and then see whether the Republic is still standing. (Or, if it is not, whether a written rather than live-and-choreographed SOTU had anything at all to do with the downfall.) Then perhaps we can get to work on extending the idea to Supreme Court confirmation hearings, and rolling back the unfortunate precedents set by Justices Stone, Frankfurter, and the second Harlan.     

Posted by Paul Horwitz on January 16, 2019 at 03:37 PM in Paul Horwitz | Permalink | Comments (4)

Tuesday, January 15, 2019

"Law and Public Policy" (With a Welcoming Nod to Gerard)

We at Prawfs are delighted to welcome Gerard to our family of bloggers. Wherever he has blogged, I have read him loyally and with interest. His energy, curiosity, and humor are a wonderful addition to Prawfsblawg, and I'm sure his productivity will be a good influence on the rest of us. The rest of the nod to Gerard comes at the tail end of this post. I wanted to write here about about a new course I taught this fall that I am perhaps unduly fond and proud of, called "Law and Public Policy."

I have taught Leg-Reg twice, once as a kind of trial run for upper-year students and once after Alabama, like many other schools and doubtless influenced by my superb trial run, made Leg-Reg a part of the 1L curriculum. It can be a great course and, in the long run, a useful one, for reasons explored by our co-blogger Ethan in this piece. I very much enjoyed teaching it and hope to be on the regular roster of Leg-Reg teachers. But...

I won't generalize about other profs' or students' experiences with Leg-Reg. Much depends on the syllabus and the book chosen. Still, I found a couple of aspects of the course surprising and disappointing. Although I tried to compensate for them in my own syllabus, I suspect others will have encountered or exemplified the same problems. The general idea behind adding Leg-Reg to the curriculum is that we live in an age of statutes and regulations, and that students whose curriculum focuses on reading cases and generally inhabiting a judge-centered universe will learn less about reading and interpreting statutes, and about the regulatory state in general, than they ought to. In practice, however, the Leg-Reg course often ends up focusing on...cases and judges. A Leg-Reg course can easily be less about legislation and regulation as such, and more a course that could, roughly speaking, be called "Statutory Interpretation by Judges--With a Little Chevron in it." (h/t: Sullivan's Travels.) That's useful, but still heavily court-centered and oriented around a close reading of judges' close readings of statutes. 

A related potential problem with Leg-Reg courses is that they can be light on both the details of the political process and on what I call the vocabulary of regulatory and public policy. On the first point, casebooks vary. The Eskridge et al. book(s), for instance, use(s) the Civil Rights Act of 1964 as a foundational example (at least up to the most recent edition I looked at), and include(s) a good deal of history about its passage. I'm not sure that's the best example pedagogically, and it's a little long in the tooth. The Bressman et al. casebook uses what I think is a better example--auto safety legislation and regulation--although it too is a little old as an example. Individual teachers may use examples of their own. Even so, that material can pass by swiftly, depending on the individual teacher, and one is soon back at statutory-interpretation-plus-Chevron. The generally wonderful Manning/Stephenson casebook, at least in the second edition, contains very little indeed on the political/legislative process itself.

And all this is still more process than substance. The substance of regulatory and public policy, and the vocabulary with which people discuss and analyze it, can easily get short shrift. I was lucky enough as a 1L to take a course called "Foundations of the Regulatory State" from Richard Pierce, during a brief interval in which it was part of the mandatory first-year curriculum at Columbia. Pierce used a series of case studies, such as the Clean Air Act and rent control, to introduce us to the vocabulary of regulatory policy and politics, including such things as public choice, externalities, and cost-benefit analysis. I have found that vocabulary useful in everything else I have done, in law school, legal practice, and legal scholarship. (Pierce has said somewhere that many students weren't nuts about the course. They were wrong.) Leg-Reg courses, with their focus on statutory interpretation and on judges, can easily omit much or most of this.

That's a loss, in my view. Learning the vocabulary of public policy can enrich students' experience in every course they take, in both public and private law, and make them better lawyers. Of course, some Leg-Reg teachers will include more of this material. And some teachers in any course will bring in law and economics and other useful tools of policy analysis. But not all will. And although, again, casebooks vary, teachers may find that they have to supplement the casebook materials and/or that adding this kind of material forces them to swim upstream, given the general orientation of the course and the other materials the school expects them to cover.

My Law and Public Policy course was designed to respond to all this. I hope it will prove especially useful to students who end up as government lawyers or in government-oriented practice, as legislative staff, or as lawyers who are involved, in practice or in a civic capacity, in politics and public policy in their own communities or in wider political environments. But all law and legal advice ultimately intersects with public policy, so any law student can benefit from such a course. Alabama has an excellent curriculum, clinical environment, and certificates in Governmental Affairs and in Public Interest law, and I hope the Law and Public Policy course will be a useful addition to our offerings in these areas.  

I had three primary goals and two pedagogical aims in mind in designing the course. The main goals were: 1) To give students a basic vocabulary in discussing and analyzing public policy. 2) To help students think about how to function, and what they can add, when they are "in the room" with various players, including both the stakeholders on a particular issue (community groups, interest groups, politicians, and others) and non-lawyer professionals of various sorts, from economists to social workers to urban planners. Law school doesn't focus much in general on how lawyers interact with the various players, including non-lawyers, who are in the room when various decisions get worked out. 3) T0 not focus on judges or courts. They show up in the course from time to time but are decidedly bit players. My pedagogical aims were: 1) To find a balance between technical/academic vocabulary and the academic readings involved in learning it, and the more practical aspects of the course, by picking a case study each week--a policy issue, and practical readings about it, with which to examine and apply the vocabulary we are learning that week, resulting cumulatively in the ability to apply a variety of analytical tools to a variety of public policy issues. 2) To bring in guest speakers who are far more experienced and engaged in the nuts and bolts of law and public policy than I am, at various levels and in different positions. This year, my guest speakers included a representative of our state's legislative policy staff, the chief of staff to one of Alabama's United States senators, and a major player in (among other things) both federal executive-branch work and in private practice involving government, politics, and public policy. Needless to say, the students loved them and were grateful to have the class taught by experts for once--not to mention experts whose boots are actually on the ground. (Lawyers and others working in this field who might be interested in serving as guest speakers, or who have suggestions of other speakers I might invite, are very welcome to get in touch with me.) 

It was the first time through the course, and doubtless I will make changes as I go, particularly in shortening the readings and continually revising the case studies. But the "vocabulary" covered in the course this semester included: the definitions of public policy and of regulation; basics of public policy analysis; economic and non-economic rationales for regulation; private ordering and private law as forms of regulation; externalities; public and private goods; commons issues; various forms of regulatory instrument, including command-and-control regulation, Pigouvian taxes, and many others; implementation and evaluation of public policies; public choice theory, rent-seeking, unintended consequences, government/regulatory failure, and other pathologies of public policy; cost-benefit analysis; risk and uncertainty; behavioral economics; and various new forms of regulation, such as democratic experimentalism or "new governance," meta-regulation, and self-regulation. In each case, I was sure to include not only criticisms of the tools and arguments presented, but specifically non-instrumental criticisms about distributive equity and equality, morality, technocracy, and so on. I would like to think that students picked up an array of tools for their toolkits and language to add to their vocabulary in reading any case and analyzing any legal issues (as well as reading about or dealing with public policy issues in general, of course), and that the use of case studies, guest speakers, and policy-memo assignments (see below) added some practicality to the admittedly academic (but fun!) reading they did. 

I avoided an exam-style evaluation. (I no longer give 100 percent finals in any of my courses, because I find them pedagogically dubious if not absurd.) Instead, I relied on class participation and on two short papers during the semester and one longer one during the exam period, all of them modeled after white papers or policy memos rather than research or academic papers and each of them based on a different public policy issue and relevant material about that issue. I hope those exercises will serve as useful experiences for students who end up writing, or at least reading, policy memos as legislative aides or practicing lawyers, or as they get involved in local civic issues. 

I give some bibliographical suggestions below the fold. Law professors who are interested in seeing the syllabus are welcome to use my Alabama email address to get in touch. I am also happy to hear from those who teach similar courses; I'm sure they are out there, and that various professor teaching in specific policy areas, such as environmental law or health law or others, end up using those courses to cover some of this ground, but a search for "law and public policy" courses as such garnered very few hits at law schools. I would also be interested in hearing from students or lawyers who took Leg-Reg on whether they agree with my description of what these courses often end up omitting, or whether their experience was different and why. Also, if there are any academics, legal or otherwise, who are interested in the possibility of contributing short chapters to a "primer" on law and public policy I am developing, which might be assigned as an inexpensive, modular supplement to a Leg-Reg course or other law school courses or as a primary book for a law and public policy course, I urge them to contact me. (Of course any publishers are equally invited to break down my door about this.)

One last note: Putting together the course and teaching it, however imperfectly, was a lot of work and a lot of fun. But the real stars of the course were my students. It was a fairly small-enrollment course--understandably, given both the person teaching it and the unknown factor in a new course--and I hope more will sign up in the future despite the instructor remaining the same. But the students who did take it were superb: diverse in their experiences but in many cases with fascinating backgrounds in public policy and legislative work, thoughtful and eager in discussion, patient with my many shortcomings, and fantastic writers whose final papers, in particular, were a joy to read and showed tremendous growth over the semester. Sometimes one is blessed by chance at the right moment, and in this case I was blessed that this particular group of students took the course as I was launching it. I thank them all. 

I promised a few bibliographical suggestions. I put together my own materials, but I have to give major credit to one book that I also assigned and used through much of the course: Mizzou Law professor Thomas Lambert's How to Regulate: A Guide for Policymakers. It's a fun book and a useful one. (Blurbs are blurbs, but I'll note that Cass Sunstein in his blurb says it "may well be the best guide, ever, to the regulatory state.") It did not do everything I wanted--what book does?--but it did do a great deal, and did so with excellent examples and references and a nice helping of wit. I recommend it not only to anyone considering a course in law and public policy but to anyone teaching Leg-Reg, to read for themselves and perhaps to assign as a supplemental book in any Leg-Reg class. (It costs $32 in paperback and $17 currently on Kindle, so it's not a back-breaker for students, which matters to me. And it's under 260 pages of text, in chapters that are sufficiently modular that one can assign only some of them.)

A few more bibliographical notes. First, although I did not assign it, teachers who are interested in getting some background on these issues should also check out Barak Orbach's unique and fascinating "casebook" (there are cases, but there is much more besides), Regulation: Why and How the State Regulates. Second, I highly recommend the Oxford Handbooks on Regulation and on Public Policy. The chapters are excellent and some serve as perfect reading assignments, as well as a learning resource for the teacher. Another very useful text is Understanding Regulation, by Robert Baldwin et al. On government failure and regulatory pathologies, and also because it's fun and enjoyably depressing and has tons of examples, I also recommend Peter Schuck's Why Government Fails So Often: And How it Can Do Better. Finally, and here's that final nod to Gerard, although I haven't used these in the class materials or discussion yet, this would be a fitting course in which to add quotes, videos, or chapters (perhaps serving as case studies) from the print editions of Yes, Minister and Yes, Prime Minister. I hope Gerard will continue at Prawfs his tradition of providing useful quotes from that series!

 

Posted by Paul Horwitz on January 15, 2019 at 09:51 AM in Paul Horwitz | Permalink | Comments (6)

Saturday, January 12, 2019

Moyn and His Critics on Law Schools and Democracy

I've meant for a while to write a post on Samuel Moyn's interesting Chronicle piece on whether law schools are "good for democracy." Unfortunately, I have other (and past-due) obligations and this has made it difficult. Moyn's piece, it seems to me, calls for either a long post--my specialty, and perhaps the only kind of post I write anymore, but one I don't have time for--or a mere aggregating post, offering links to the piece and to criticisms of it. I tried to split the difference, but unsuccessfully. So here is a long but still incomplete response. For present purposes, my central goals have less to do with whether or how much I agree with Moyn, but 1) to clear some ground, and 2) to suggest that the criticisms of his piece demonstrate its value, and perhaps say something about law schools and their politics and situation within the social firmament. 

In his op-ed, Moyn argues that insofar as law schools exist not only for the basic task of training lawyers, but also to "advance or even incarnate certain ideals of political and social justice," then "law schools, and especially elite law schools, are failing to advance those ideals. Law schools allow you to do well. But it is harder to establish that they allow for doing good."

Among other things, he takes as an example law school clinics, asking "whether the clinical revolution is actually about changing the world," at least for individual students, as opposed to things like finding a way to "harmonize" "social-justice work...with elite credentialing for power and wealth." He argues that law schools "need to consider how to reset their missions for those students no longer able to suspend disbelief about how their ideals and their training fit together." Crucially, he asks, "What if the truth of law schools is that their main social function, aside from producing the next round of elites, is that they buy off those who initially doubt that perpetuating elites is what law schools ought to be doing?" And he responds to this question by suggesting, among other things, that law schools, or at least elite law schools, should pay more "attention to what it means for legal elites to serve the democratic conversation about how the people rules itself. Rather than burnishing the credentials of law and its royal judicial stewards, we should insist on the centrality of the people in a democratic legal order. If elite students are forced into a dilemma about how to preserve their sense of justice even as they embrace extraordinary privilege, it is, first and foremost, because society allows law schools to endlessly reproduce elite ascendancy. But the institutions themselves can force some change from within, in part by explaining to the people how the law rules them."

Whether I agree with all of it or not, I always enjoy Moyn's writing. Its value, to me, is evident not least in the fact that it draws what I would call the right adversaries. In showing this, we must first dispense with two sets of adversaries or critics Moyn drew for this piece--those who objected that Moyn was talking only about elite law schools, and those who objected to his use of clinics as an example. We are then left with the interesting fact, one not uncommon with respect to Moyn's writing, that his op-ed drew negative responses from what we might, both usefully and uselessly, call both the left and the right. In reality, it is more accurate to say that Moyn's piece was most likely to draw negative responses from establishment liberals or progressives and from establishment conservatives. For people whose orientation is more genuinely "left" or "right" and less establishment oriented, his piece is likely to draw at least chimes of recognition, if not agreement.  

The first set of adversaries to dispense with is those, especially those who believe that law schools are primarily or solely here to train lawyers, who argue that Moyn's piece has little relevance for the vast body of law schools. I think this is slightly overstated: among other things, insofar as law schools of any and every type and "rank" insist on hiring from a small cadre of elite-trained candidates who often have experienced, internalized, and continue to embody and argue for the kinds of visions they absorbed from Yale and other elite institutions, some of the questions he discusses are likely to filter through the broader body of law schools. But in any event, it should be noted that Moyn is clear that 1) his piece is fundamentally about elite law schools, for better or worse, and 2) that law schools' "primary task will always be the production of lawyers for the bar"--although he notes, correctly in my view for some or many schools, that this is "a core commitment with which other agendas will necessarily fit uncomfortably." Moyn can be criticized for a narrow focus on elite law schools if one wishes, but he is not unaware of this limitation in his piece and doesn't pretend he's addressing the whole universe of American law schools.

The second and perhaps largest body of critical reactions came from those who did not much care for Moyn's use of clinics as a critical example. One example of this is Steven Lubet's Faculty Lounge response to Moyn.  Lubet writes, inter alia, that Moyn "seems to disdain the work of clinicians," and that "every clinician I know spends a good deal of time considering the social impact of their work, and none of them are concerned with alibis or grubby scrambles, much less laundering injustice." To his credit, Lubet adds a response from Moyn, in which Moyn says that "this piece isn’t about clinics, except (explicitly) as a passing example of how people in elite settings have to grapple with their consciences," and similarly that his op-ed "is more about the psychological/spiritual functions of clinics for students, regardless of instructor intent." Lubet takes this response seriously but considers it insufficient and says a simple apology would have been preferable. (He notes his concern in particular that in using clinics as an example, Moyn "focuse[s] on one of  the most vulnerable programs at the law school." Even taking that as true, I don't consider this criticism especially apt. Intellectuals and academics--and I think Moyn qualifies as the former, even if I doubt I do--should write without concern for fear or favor. Afflicting or comforting either the comfortable or the afflicted should be by-products of what they write, not a reason not to write or to seek out harmless or inconsequential examples. And I frankly doubt that an op-ed in the Chronicle of Higher Education--especially the current and not very good version of the Chronicle--will do much to push legislatures in one direction or the other compared to whatever direction they were already heading.) 

I credit Moyn's response more strongly, I think, than Lubet does. In reading the piece, I took clinics to be only an example, not a target, of Moyn's argument. And I thought it clear that in discussing clinics, he was indeed not referring to the instructors, but to the students, and more specifically to the psychological function of law clinics for elite law students. I do think that some elite law students are determined to do public interest work full-time, or to use clinics to get an education in doing full-time practical legal work, assisting clients of whatever sort with their legal problems (you know, lawyering), without any particular regard for a broader social purpose. For them, the "psychological/spiritual" point Moyn makes may be less relevant. But for others, specifically elite students who will end up at big firms while doing some pro bono work, and who can or do indeed use this work to preserve a specific sense of self--as a just person who does justice, despite having implicit or explicit negative or ambivalent feelings about working for Biglaw, but whose clinical past and pro bono present demonstrates that he or she is really a good person whose wealth and privileges, and those passed on to his or her children, are washed clean by moral desert--I think Moyn's point rings true. Some may be uninterested in a "psychological/spiritual" observation of this kind or think it trivial. I am not one of those: I think it is a useful, important, and under-examined issue with respect to the sociology and class status of law schools, certainly elite schools but likely many more of them. Regardless, I thought his aim was clear and that this was not an attempt to undermine clinical programs or criticize from stem to stern. Those reactions that amount to a simple displeasure or wounded amour-propre about any piece that mentions law clinics and does so in a non-positive way are understandable but, to the extent that they are a simple reaction of this kind, less important. The more thoughtful criticisms of his use of clinics as an example have value, but I think they ultimately miss the mark. 

On the flip side, there are more substantial and, for lack of better words, both "political" and "institutional" defenses of law schools against Moyn's piece, or criticisms of Moyn's piece that are themselves critical of law schools for political reasons. What I found interesting was the extent to which these criticisms came from both liberals and conservatives. For an example of the former, one that I think makes some good points even if I think it may soft-soap others, see the response of Dean Margaret Raymond of the University of Wisconsin's law school. I do think Raymond makes some good points. Not least, I appreciate that she does not respond by demonizing big-firm legal practice (or small-firm legal practice that is about simple and valuable things like forming corporations, helping small businesses, defending employers against wrongful dismissal cases, or what have you) while denying that any of her graduates do this sort of thing: "Some of our graduates go on to BigLaw practice, of course, and good for them." She is right, too--depending on how high one defines the bar--that her graduates "are not queued up to take their preordained place in an elite hierarchy." (Much depends on how one sets the bar. It's certainly less true of Wisconsin grads than Yale grads, if you're thinking about the very top of the elite hierarchy. It's certainly true that her school's graduates' place in that hierarchy is less "preordained." On the other hand, the median private-sector salary of a Wisconsin grad, according to 2017 data, was $115,ooo. That's not townhouse-in-Georgetown rich or elite, but it, as well as the knowledge base and social capital it includes, may well suffice to place those graduates in a professional-managerial class that is already worlds apart from average American life.) Whether her assertion that her students (0r students elsewhere) are "neither naïve nor resigned to 'endlessly reproduce elite ascendancy'" is a different question that I can't answer. I think Moyn may overstate, even as to some of his own school's students, and that Raymond may understate, even as to students at non-elite law schools other than those at the very bottom rungs. But, without meaning to downplay the aspects of Raymond's letter that I appreciated or to ascribe motives to her, one might see in her response a kind of "all is well" sentiment that one could characterize as the liberal or left, but still fundamentally establishment-oriented and establishment-protective, reaction to Moyn's piece.

Then there are conservative responses to Moyn's piece. They are, on the whole, more interesting than the ones I have seen from either clinicians or liberals. For John McGinnis, the problem with Moyn's piece is that it is filled with and emblematic of "the embedded left-liberal assumptions of the legal academy." For Yuval Levin, who I think is much more favorable toward Moyn's piece (and certainly more favorable than many others who reacted to it), many of Moyn's criticisms are apt, but he seeks to deepen the disease rather than move toward a proper cure--namely, the revival of "a genuinely academic culture in the law schools." An extended and interesting passage from his piece is useful here:  

The deepest problem with the distorted and distorting emphasis of today’s elite legal education, which Moyn well describes, is not that it keeps would-be lawyers from becoming effective activists for progressive social change (although it does do that) but that it keeps them from becoming effective lawyers in our democratic republic. And it does that especially by neglecting to subject them to a strong professional code—a self-understanding that is fundamentally professional and institutional, and so subsumes their individual ambitions beneath clear, legitimating responsibilities and channels it toward the service of their fellow citizens.

That’s what a profession does for its members, and especially for its elite and privileged members. It restrains and protects them, it gives them purpose and genuine belonging, and it provides them with a valued place in a larger social order so that they need not always be suspected of working to undermine it for the benefit of their class or of themselves.

Lawyers have a distinct place in our particular social order, as interpreters of the legal frameworks of democratic life, as careful reformers of those frameworks, and as agents of fellow citizens in need of prudent counsel. A professional code that accustoms elites to serve as agents of others and that holds them to a standard that has more to do with integrity than with raw intellect would be one useful way to help humble those elites and to legitimate their standing and their privileges.

I happen to be quite sympathetic to these points in many respects, and those who are increasingly or suddenly interested in the role of things like virtue, honor, office, and duty in public service ought to find some common cause with French, despite other political disagreements. But I also think there are good reasons why many have lost faith in elites altogether, even if they also think that elites and establishments can provide useful norms and the sane and stabilizing effects of professionalism, as against arbitrariness, incompetence, and a failure of decent and dependable governance. I see nothing wrong with some tension and ambivalence about these questions, or with scrutinizing and questioning establishments and established hierarchies and the ways in which they reproduce themselves, even as one sees their value when compared with a more free-for-all environment. In the end, thought, one can appreciate what French writes, but still observe that one result of this vision is, as with Raymond's letter, the legitimation of the status and sense of moral desert of those who occupy the establishment.

Wherever I come out on these questions, I think Moyn's piece is valuable for psychoanalyzing and critiquing the establishment and not defending it. (Indeed, one point of disagreement for me is that I think Moyn's piece goes too far in his resignation about, or even defense of, what he calls "a certain amount" and I would call a substantial degree of "hypocrisy and rationalization" on the part of elites.) The relationship between "doing good" and "doing well" is a fraught and perhaps impossible or irreconcilable one that just happens to be the cornerstone of what I think of as the modern, post-SAT meritocracy. It rests substantially not on doing good as an end in itself for which things like comfort and one's own ambitions can and should be sacrificed, but on feeling and believing that one is "doing good," that this is a natural and necessary part of or complement to "doing well," and that (although few would put it to themselves this way) it effectively serves as a kind of moral laundering of one's place (and, as or more important, one's children's place) in a privileged elite.

Most of the publicity about mandatory arbitration at law firms had to do with how that affected summer and permanent associates, not staff--who, if one buys the arguments against mandatory arbitration, are far more in need of championing than lawyers, especially lawyers with the kinds of elite credentials that get them these jobs in the first place. In fairness, although that publicity was so oriented toward law schools that I at first thought staff had simply been ignored, they are mentioned explicitly in at least some of the public letters and petitions on this subject. But it is perhaps not incidental that most of the public focus was on the well-being of (elite) lawyers and law students, not, say, receptionists and mailroom staff. Similarly, many of the arguments about which cases or issues big-firm associates insist that their firms either take on or refuse to take on have the effect of building and preserving a certain sense of self, while leaving in place most of what brings them a very lucrative practice, a comfortable and prestigious life, and a mountain of social capital. These kinds of compromises, which are not seen as compromises but as bold stands for "justice," seem--let us assume incidentally, but perhaps not wholly unconsciously--to result in a few loud pronouncements and protests without going so far as to actually disturb the pleasant and advantageous elements of "proximity to power and prestige."

More openness about this might lead to little--if it is little--beyond a clearer sense of self-knowledge and the reduction of a certain amount of illusion about oneself. It might lead legal elites to acknowledge to themselves just how much of their time and effort is spent "reconcil[ing their] politics with [their] self-interest," to quote Moyn. As he writes, "[i]f law schools and law students were more open about their elitist compromises, there could be more discussion of how all of their members manage their consciences."

The answers to this discussion might vary. It might be that rather than follow Moyn's suggested path, more elite students would more openly acknowledge that they are engaged in what is by their lights a morally questionable enterprise, in which their politics cannot be reconciled with their self-interest. Some might alter their politics rather than their self-interest or, perhaps more accurately, acknowledge that their self-interest drives their actions far more than they care to admit, and that their politics--the justice issues they focus on and especially or tellingly those they spend less or no time on--are, as a matter of revealed preferences, more conventional and establishment-serving, and less radical or disruptive, than their self-presentation or self-image suggests. They could thus reduce the cognitive dissonance by recognizing more openly the degree to which their politics really are elite-oriented and conservative. Or they could adopt a more disenchanted and mundane, although perhaps still professionally oriented, view of law schools' "mission:" taking the training of practicing lawyers as the real core of legal education. acknowledging that the seeming focus on grander missions is more of a comforting illusion or cosmetic element than a reality or core element of legal education, and returning law schools to a less encompassing and more technical function. Or, as Moyn might wish (although his fairly forgiving treatment of "a certain amount of hypocrisy and rationalization" suggests some undefined and convenient limits here), they could adopt the more dramatic and political "mission" more wholly and radically, accept that doing so really does entail a loss of proximity to power and prestige, admit that that they can't and perhaps shouldn't have both, and seek radical justice over proximity to power and prestige.

I don't think all law schools, elite or otherwise, can or must reach the same conclusions or adopt the same missions and concomitant reforms. I have my own preferences, but think there is room for more than one answer and more than one model. But at least this discussion would lead to more honesty--including honesty with oneself, especially among legal elites--about the kinds of institutions they attend and are headed toward, about their real nature and the real nature and consequences of their individual choices, and about how much, or how little, depending on one's perspective, is at stake. I doubt I share Moyn's answers on these questions. But I like the questions he asks and how he asks them. 

  

Posted by Paul Horwitz on January 12, 2019 at 11:39 AM in Paul Horwitz | Permalink | Comments (4)

Wednesday, January 02, 2019

Happy (and Crabby) New Year, Canadian Edition

I left Canada, where I received some of my legal education and practiced and published a little, long enough ago now that I am hopelessly out of date, despite following cases in some areas of law. But when I was there, the norms of the profession or society, the degree of consensus among a fairly small legal elite or Canadian mandarin class, and/or some other set of factors were such that there was little serious criticism of the Supreme Court of Canada and its decisions, and the criticism that did exist was treated more or less as coming from outliers. There were few or no originalist scholars or theorists, despite the recent nature of the founding debates over the Charter of Rights, which rendered some of the concerns with originalism in the United States inapplicable (while, on the other hand, making originalism less necessary as such, since the culture and the leadership class had not changed sufficiently in that short interval to require much conscious retrieval of linguistic meaning). Although there were inevitable disagreements with particular decisions, they were voiced mostly with extreme politeness and mostly with deference to the institution as a whole. Criticism of individual justices or judges was generally viewed as not cricket, despite their increasing role in affecting and effecting major policy changes in the country. (On the other hand, and quite happily, there was less of a cult of personality and celebrity around individual judges and justices, a phenomenon that is not uncommon in this country.) Much has changed since then across most of these categories, despite the continuing presence of a fairly dominant and, from my admittedly distant perspective, in many respects closed elite legal class in Canada.

One place to follow some of these developments, with an emphasis on Canadian public law, is the Canadian legal blog Double Aspect. It is perhaps relevant that although both its main authors, Leonid Sirota and Mark Mancini, are Canadian lawyers and/or legal scholars, they are currently located elsewhere (in New Zealand and the US respectively) and have both done advanced work at law schools in the US. I recommend the blog generally, but I write to recommend especially an ongoing, "12 Days of Christmas"-themed series of guest posts "highlighting Canadian legal scholars’ least favourite Supreme Court decisions." A fine group of scholars and lawyers have been writing very readable posts, each identifying around five "particularly bad public law decisions from the period 1967-2017." Although there may be some overlapping politics among some of the writers and there are certainly some overlapping choices for objectionable judgments, there is diversity along both of those dimensions.

I find the series educational and refreshing, and very different from anything I could have imagined reading in the period in which I studied and practiced in Canada. (Indeed, I remember publishing an article some years ago in a Canadian law journal--faculty-run and peer-reviewed, as most of them are--and being asked by the faculty editor of that journal to add some kinder and more complimentary text to balance my criticisms of a recent Supreme Court of Canada judgment.) That change is for the better. Although it might not be thought of in those terms by some of the existing and remaining legal and socio-cultural mandarinate in my native country, it enhances not only the ideological and philosophical diversity of the country and its legal profession, but also its regional and cultural diversity.

The series is also a valuable reminder, for those in the United States who champion the "proportionality" approach to constitutional judicial review and often point to Canada as an example of a country whose constitutional law does it right, that the system and its decisions are hardly without internal critics, whether or not they have full or sufficient representation on Canadian law faculties. More specifically, it's a useful reminder that a great deal of the work done by proportionality may rest not on its methodology or its alleged empiricism, but on the shared values and premises of the legal elite charged with administering it; that the seeming consensus may mask greater divisions within the country as a whole; and that the more those with dissenting views gain actual representation within the legal system, and/or the more diverse the legal elite becomes, along a range of dimensions but especially including diversity with respect to basic premises, the more difficult it will be for proportionality to function well or with seeming seamlessness.

As a side note, readers might scroll down a bit on the Double Aspect blog to this post about criticizing Canadian Supreme Court justices. The post was occasioned by negative reactions to a couple of earlier blog posts strongly criticizing a recent speech by SCC justice Rosalie Abella on the role of the Supreme Court in Canadian society, in which Abella, in a rather Planned Parenthood v. Casey-like way (see, e.g., "[Americans'] belief in themselves as [a people who aspire to live according to the rule of law] is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals") and then some, described the modern Canadian Supreme Court as the font of "the moral core of Canadian national values" and "the final adjudicator of which contested values in a society should triumph." If strong criticisms of judicial opinions are acceptable, and I think Canadians, however politely, would agree that they are, then surely there must be room to criticize the words of individual justices who make extrajudicial statements about their rather grandiose role as the first and last word on their country's "national values." 

Posted by Paul Horwitz on January 2, 2019 at 12:55 PM in Paul Horwitz | Permalink | Comments (2)

Wednesday, December 19, 2018

CoOp and Prawfs, Blogging and Twitter

Adding to Howard's post, I was sorry to hear of the announced demise of Concurring Opinions. Given its history, it's hard to read the news without thinking of our departed friend Dan, who I'm sure would have been sorry too and have had something more useful and eloquent to say about it than I do. (I also suspect, however, to foreshadow the subject of this post, that Dan would certainly have spent time on Twitter.) 

One of the things that kept CoOp going toward the end, as the commenters there noted appreciatively, was all the hard work of Gerard Magliocca. In that spirit, I should note on this, the first occasion on which I have blogged in months, that everyone at Prawfs is hugely indebted to Howard Wasserman, our de facto senior partner, who continues to blog with frequency and energy and bears a disproportionate amount of the burden of administrative work as well as providing content. My thanks are accompanied by a mea culpa and a vow that I will post reasonably regularly during the spring semester--not good news for anyone in particular, to be sure, but certainly a token of gratitude to Howard and a recognition of my obligation to him and the blog (and to Dan).

Howard has also been responsible for bringing on board many of our guests, and to them and to him again we are grateful. One of the characteristics of Prawfs has always been that it is in part about being a law professor, and especially, in its early days, about being a young or junior law professor. I loathe the term "pre-tenured," which is indicative of problems with the tenure system and of excessive politeness and its effects on the English language, and prefer the old-fashioned "untenured." That is what most of us here were in the early days of Prawfs, and our excitement about this ridiculously fun and rewarding job and the need to discover things about it as we went contributed to our writing about these things. (In my case, there was the added view that every activity, including law and legal teaching, is as much a sociological, institutional, and economic as an intellectual endeavor and should always be examined in that light, from both an internal and an external perspective.) Years ago, I was reminded recently, I joked that eventually our discussions of law teaching would turn into posts about, say, lumbago and law teaching. Given that we are now more senior, our guests keep us fresh and remind us of the questions that occur to all of us as we start out in teaching. I hope those questions extend beyond placement angst and gossip about when journals are taking submissions and the like, and include teaching especially. I'm grateful to our continuing flow of guests both for their writing on particular serious topics and for reminding us of our pre-"get off my lawn" experiences as teachers and scholars, and to Howard for bringing them on board. People who are interested in spending a few weeks here, to discuss a particular project, legal question, or aspect of life as a law professor, are welcome to contact Howard or any of the rest of us. So are folks who used to belong to now-moribund blogs and would like to have the chance to still blog occasionally.

Howard's post and the interesting comments there discuss some reasons for CoOp's demise and general changes in legal blogging, including what Howard calls "the broader migration of this sort of legal writing to Twitter and Facebook." I would amend that to just Twitter, since I think people are using Facebook less. Although some questions were raised about Howard's statement, I think he's right. Indeed, although I hate Twitter, I post on it more than I do on the blog these days. Since I don't care much about having a "social impact" or something of the sort and would rather not have a large readership on Twitter--it seems to me more often to have a negative than a positive influence on those who do--the fact that I write more there certainly doesn't have to do with a desire for influence. And my overlong writing is perfectly ill-suited for Twitter. So why Twitter rather than the blog, both on my part and for legal writers using social media in general? A few thoughts follow.

First, as Howard notes, some blogs are still very active and some of those seem still to be widely read, although it may be that blogs like Take Care (which I don't read) and the people who write there have more influence through Twitter than directly through the blog. And a couple blogs are still mainstays. The legal academy and people interested in new legal scholarship still benefit immensely from Larry Solum's Legal Theory Blog in particular. (One aspect of that blog that is noticed less often but is more necessary these days is its weekly book recommendation, which is vital in an age in which there are more books by law professors but fewer notices and reviews in law journals. The St. John's Law and Religion Forum is also great on this and quite catholic in its book recommendations.) But it does seem to be the case that bloggers are less active and blogs are read less routinely. 

Some of this comes down to exhaustion and other such factors. I wrote about this and other influences on long-term blogging in a post some time ago. I won't repeat all I wrote there. I will note a couple of things, though. The bloggers who remain most active and can keep it up over years are often those who have a particular topic they are moved to write about, either something directly in their field or a personal hobby-horse or both. Generalists find it harder to keep it up long term; and although we all have our hobby-horses, some of us don't want to ride them too often and repetitively. There is still good reason to read and write specialist blogs, and it's harder to dig deeply into those issues as easily on Twitter, even if the blog post becomes more of an occasion for linking and then talking about it on Twitter. Those who aggregate, like Larry (although he clearly puts work into reading as well as aggregating pieces), and those who have a particular topic or hobby-horse that is an ongoing passion, will find it easier to keep going over the long haul and may find that not all of their needs are satisfied on Twitter. For those of us who, as I said in the earlier blog post, also want to write about the positive aspects of the first two Star Trek reboot movies and the dreadful nature of the third, or about (this semester's amateur fascinations for me) jazz, jazz history, jazz drumming, the great Steven Wilson, Epictetus and esoterica and Confucius, it's easier to do so on media like Facebook (or Twitter, although my sense is that for the writers I'm thinking about this happens less often there, to my regret, because people are still thinking about something like their "brand" and also because wider audiences and the culture of the medium may make one-off twits, especially jokes, more perilous on Twitter; I save most of my humor, which is not perfectly safe or reverent, for Facebook, where my "friends" are used to my sense of humor and tend both to enjoy and to understand and discount it, and even there I occasionally trim my list of "friends" with that in mind).   

Some writers no doubt want to have "influence," and specifically influence in what we might call the political world rather than the academic world. If that is one's goal, it's understandable that one would spend more time on Twitter. Some of those writers are honest brokers and gain reputations for being reliable and fair. Others, it seems to me, have large numbers of followers despite the fact that--or, really, because--they are highly partial, partisan, and sometimes overly emotional writers on Twitter. They satisfy some general readers' need for solidarity and to have their priors reinforced and ready-made arguments for their cause supplied. In some or many cases, general readers may believe that because these arguments come from academics or experts, they are reliable and authoritative, although others in the field might suggest otherwise. This is not the place--I mean, who wants to read a long blog post?--to discuss arguments about academics' professional or ethical duties on Twitter, if any such duties exist. I think they do. But in any event, one can always rest on the notion that there are irreducible moral or ethical obligations on everyone's part, and perhaps especially on the part of "experts," that attach to everything they do and certainly to their public and political statements and interactions, whether we think of them as having anything to do with academic ethics or not. If one seeks influence by trading on authority, if it's not a fair and honest trade it can reasonably be seen as questionable behavior. For those who value integrity and care above propaganda or sophistry, nothing trumps one's fundamental moral and ethical obligations of honesty, fairness, candor, nuance, and so on. I feel sure that given today's coin of the realm, Richard Rich would have found a way to get a blue checkmark on Twitter, and that one could have raised the same questions about this that Thomas More asked about Rich's being made Attorney General for Wales. For myself, I worry that I have too many followers on Twitter as it is, although gaining a large number is never going to be an actual problem for me. 

For me, at least, the reason I am more likely to post something on Twitter than on the blog is a somewhat perilous combination of ease and immediacy. The Twitter platform makes it easier to write something quickly and put it up instantly. Even a multi-twit post, which most of mine are, is easier to knock out from one's phone while walking the dog. I don't write blog posts on my phone, so I need to pull out a laptop or sit at my desk to write a blog post. The Typepad platform is perfectly friendly, and no doubt so is its app, but to write a blog post that is not a simple one-sentence link ("Interesting." "Highly recommended." "Hmm." "Problematic!") takes at least a little time and effort. And for those of us who favor an endless number of caveats and nuances and a parade of commas, dashes, parentheses, and semicolons, it takes still more time. Twitter feels easier, more immediate, and less consequential--although, as many have learned, in our polarized, combative, and punitive culture the last is certainly untrue. The very fact that you are reacting (it is indeed frequently a reaction) to the news of the day makes it easier to feel that little turns on your tweet, that it's a grain of sand on the beach, and that you need not (and cannot, given character limits) say much and can always post again, or simply let your earlier twit fade into obscurity, when it turns out that the story was more complicated than the first take suggested.

One might say something similar about reading it. Although I have an aversion to Twitter, I find it easy and addictive to turn to when walking the dog, even when I bring a book along, as I generally do, and even though I generally only read the Twitter pages of 3-5 people rather than plunging through the entire swamp. My spending more time there as a writer than I do on the blog, and spending some time there as a reader (although I spend time on my diminished number of go-to blogs), thus has less to do with the fact that the conversation has "migrated" there or the amount of content there, although those are contributing factors, and more to do with the ease of access and its suitability to short-term reading and reaction. And I might add something about emotion and about the outrageous story or anecdote of the day (or hour). Whatever your predilections and prejudices, you can more quickly and easily find some item there--fourth-place candidate in obscure local primary race says horrible thing, single unimportant professor at unknown university speaks outrageously or is treated outrageously, major gas planet loses rings, president of large and powerful country animadverts excitedly or boasts idiotically, etc.--to pique your interest and stoke your outrage. Since blogs are generally more selective and less immediate and emotional, you'll find fewer such links there. Twitter is a much better place to excite one's feelings that the world has collapsed, that you are losing your side of the culture war, or whatever else gives you a form of immediate pleasure or sensation.

Despite all this there are, of course, useful aspects to Twitter and useful writers or threads there. Many of them, in fact, although unless one is highly selective and resists the baked-in addictive qualities of that medium and the many temptations to lose oneself in trivia and outrage, they are harder to find or more easily outweighed by all the trash and ephemera. I intend neither to bury Twitter (quite) or to praise it. But given some of the factors above, along with things like the large potential audience (for those who care about this), the sensation or illusion that it is read more frequently and avidly, the number of serious people on it (whether they behave like genuinely serious people on it or not), and the sense of engagement it exudes, it's understandable that it's often easier and more tempting to turn to that medium than to a blog. Especially for those of us who are not hobby-horse riders or fear becoming hobby-horse riders, it's easier to get some thought off one's chest quickly by using Twitter. The same impulse might fade and die by the time one got around to opening a computer and drafting a blog post (which is almost certainly a point in favor of blogging). 

People who insist on the value of things like immediacy, audience, currency, letting no news slip by without comment, "engagement," and other such factors will find much to like about that platform. They will find less to like about blogs, which may have seemed immediate once upon a time but, like the difference between having both morning and afternoon editions of newspapers and having access to a 24-hour news channel, now seem slower and more antiquated by comparison. And the network effects--the smaller number of people writing regularly on blogs and the larger number of people twitting regularly--will encourage more migration. Such is life.

But, as most of what I've written above suggests, these things also have costs and perils. Virtually everything I have described as a possible virtue of Twitter is quite obviously also a potential vice. It is not an especially healthy culture or discourse. The relentless focus on the immediate makes a decent perspective on what is real news and what is trivia or ephemera unlikely, and outrage or similar emotional responses the usual and often disproportionate response to everything. It's far from clear that keeping up to date on the news is an absolute good, especially when it is measured in intervals of seconds, minutes, and hours rather than days, weeks, and years. In general I learn more that is useful about the contemporary world by reading Epictetus or Dostoevsky than by reading about some event that happened seconds ago. The number of news stories devoted to reprinting Twitter debates (stories that are cheap and easy to produce and guaranteed to find readers) rather than, say, careful investigative reporting (expensive, time-consuming, demands more expert and thus more expensive reporters, not guaranteed to result in a lot of content or much readership) encourages stenography and pot-stirring rather than serious reporting, and is one more example of the way in which both technology and the desperate urge to stay alive in an inhospitable environment have harmed journalism rather than enlivening it. Nor is it necessarily good even for serious writers and thinkers who take advantage of Twitter, and/or law professors and other academics. The desire for general "influence" is understandable but not a clear positive good for academics. That desire may encourage the political rather than the expert and disinterested character of academics' public writing. And, as I've suggested elsewhere, we should consider the possibility that despite the insistence that one's scholarship and one's public and political activities are separate and unrelated or are pursued in different ways, one's twitting may affect or infect one's actual scholarship and/or its perception.

One could go on about Twitter's potential vices and their relationship to vices or sicknesses in our general culture. None of this is surprising. There are very few unalloyed and unqualified enthusiasts about Twitter. Even most of those who think the platform as such is epiphenomenal and not much related to its content or to the culture (I disagree), or who think it is much more of a good than a bad thing, or think that criticisms of Twitter easily tend toward exaggeration or hysteria (possibly true) readily acknowledge its faults. Somewhat more interesting to me is how many people, whether critics or fans of Twitter, think and worry about contemporaneity, "relevancy," and especially immediacy itself and their downsides. But that question is hardly unknown either. And although I have not seen all the responses I would like--in particular, major and somewhat conservative changes in institutional print journalism--clearly the rise of various platforms like Medium and other sites for longer-form writing by various writers suggests a recognition of these problems and some attempt to balance them with other forms of communication. 

I offer no prescriptions or predictions. I think blogs have faded and will continue to do so, that they will not necessarily die, and that there is still definite value in them. That's especially true of the more subject-specific blogs but also of mixed blogs like this one. I think the migration to Twitter will continue, whether I like it or not. Even though doing so rests completely in my own hands, I suspect that even when I know or think that some piece of writing is better suited to this medium than to Twitter, and even if I conclude that Twitter is awful and harmful, that (unless I quit it altogether) I will still turn to it to post rather than to the blog, at least unless I devote meaningful and consecutive time to blogging (which might be better spent, not twitting, but doing more scholarly writing or other useful activities) and avoid absolutely the temptation of short takes and immediate reactions--a temptation that is part of what makes Twitter successful, addictive, and arguably deforming of individual and social character. But there's still a place for what we do here too. I hope to do more of it next year. In the meantime, my condolences to CoOp and my thanks to Howard for his role here at Prawfs.   

 

  

Posted by Paul Horwitz on December 19, 2018 at 12:36 PM in Paul Horwitz | Permalink | Comments (3)

Friday, July 20, 2018

Marquette Law Review Symposium on The Ethics of Legal Scholarship

HI was delighted to participate in this law review symposium by the Marquette Law Review on the ethics of legal scholarship in the fall of 2017. I was a co-organizer but most of the hard work was done by the law review editors and by co-organizers Chad Oldfather and Carissa Byrne Hessick. The articles feature varied perspectives and topics. I hope those interested in academic ethics and especially legal academic scholarly ethics will read and enjoy this issue. (My own contribution is here. The SSRN version is here.)  

One specific goal we had, in the words of the symposium introduction, was to "arrive at" and publish "some common, generally agreed upon answers and principles." We thus lead off with a set of "Draft Principles of Scholarly Ethics." They should not be taken as having commanded the absolute consensus of all the participants, and we certainly do not claim that all legal scholars will agree on these principles. To quote the introduction again: "Our attempt . . . to put something specific on the table, agree on it, and share it with our colleagues was never meant to be a final and definitive answer to the questions that confront us concerning the ethics of legal scholarship. It was not meant to end the discussion. But we have attempted to provide a useful place from which to begin and continue such a discussion." We hope the draft principles will do this, serving as a jumping-off point for future discussion of this subject, which certainly is not going away and will if anything grow in light of both the rise of law professor participation on social media and the current political situation. 

Enjoy. Thanks again to both Chad and Carissa as well as the other participants, and congratulations to the Marquette Law Review editors involved in making this happen and bringing it to print.

Here is the table of contents for the issue:

 

  

Posted by Paul Horwitz on July 20, 2018 at 01:32 PM in Paul Horwitz | Permalink | Comments (0)

Monday, June 18, 2018

"The Constitutional Marriage of Personality and Impersonality: Office, Honor, and the Oath"

A commenter here recently observed that one of the key functions of a legal academic blog like this is to promote one's articles. Right they are. I've been very slowly working, on and off for the past ten years or so, on what I hope will eventually be a book on oaths and the Constitution. Since an oath means little without the underlying values and incentives to undergird it, it is necessarily and maybe primarily a book about the role of honor in American political culture and constitutional law: both a historical examination and an effort at reconstruction and revision of the concept. To shine the spotlight half away from myself for a brief moment, I wrote recently that a growing number of people have concentrated on issues connected to honor, oaths, office, and similar concepts:

General arguments of this sort have been popular at least since Douglass Adair’s famous essay on fame and the founding fathers. The result of such a worldview, then as now, is not neat, but it is important, especially for its focus on ideas—such as duty, honor, virtue, and character—that have faded in public usage and even been described as obsolete. Renewed interest in these ideas in recent (and pre-Trump) years has birthed a number of approaches taken to constitutional thought, such as arguments for an aretaic turn in constitutional law, a fiduciary vision of office-holding, renewed attention to constitutional oaths, and a focus on judicial duty. These authors have varied politics and draw varied conclusions. But they share the belief that in our constitutional ethos, character matters. It is interesting, if unsurprising, that such arguments have recently drawn new advocates.

Here is a new piece that is a small part of that project, titled "The Constitutional Marriage of Personality and Impersonality: Office, Honor, and the Oath." It's a contribution to a wonderful roundtable that was held recently to discuss Randy Kozel's recent book, Settled Versus Right: A Theory of Precedent.  The contributions include pieces by Alli Orr Larsen, Jason Mazzone, Stephen Sachs, Larry Solum, and Fred Schauer, among others, with a response by Randy. The roundtable was hosted by the University of Richmond's law school and coordinated by Kurt Lash and Jason Mazzone. The contributions will appear in Constitutional Commentary. They are short, which in my case makes the piece unusual and, I hope, less tedious than usual, although it does mean my piece is largely and merely an introduction to some of the concepts that interest me in this area rather than a full explanation or defense. (I have a longer piece on honor, oaths, and the rule of law that, after much delay on my part and extraordinary patience on the editors' part, should appear in the Canadian Journal of Law and Jurisprudence in time.) Here's the abstract. Enjoy.

This short piece is written for a symposium on Randy J. Kozel’s 2017 book Settled Versus Right: A Theory of Precedent. It is part of a larger project on honor, oaths, and the Constitution. One key element of Kozel’s book is its identification of “impersonality” as a central good served by precedent. Assuming impersonality to be such a good, one can recognize that it is a hard goal to achieve in the face of contrary pressures. A source of motivation, energy, and agency is needed to fuel the judge’s efforts to achieve impersonality.

In our constitutional culture, a troika of three interrelated concepts or institutions provides this motivation: The office, honor, and the oath. Together, they provide a sense of duty and constraint in filling a specific office; a sense of honor that encourages the office-holder to fulfill that duty, by creating both a desire to be well-regarded by one’s peers and an internalized sense that one ought to behave in a way that merits high regard; and, through the oath, a connection between the individual and the office, and between the office-holder and the commitment to act honorably in office. In short, this troika provides a deeply personal wellspring for the commitment to “impersonality” in judicial office.

The argument here should be seen as part of a larger set of recent efforts in public law to focus on the nature and duties of the office-holder him- or herself, and not just on an impersonal system in which the office-holder and his or her duties and character are incidental. Some of this work focuses on the oath; some of it focuses on the fiduciary nature of public office; and some focuses on the character and virtue of public officials. This work is not confined to American scholarship and, although it has been given a push by recent events, substantially predates the current administration. It deserves attention as a stream of public law scholarship with varied approaches but, speaking in broad terms, a common focus. 

 

 

Posted by Paul Horwitz on June 18, 2018 at 09:42 AM in Paul Horwitz | Permalink

Wednesday, May 23, 2018

On Diversifying Academic Panels and Conferences

This is an evergreen issue, but in response to a tweet by the twitter feed of the Feminist Law Professors blog, Mike Dorf has put up some thoughts on the question of diversity on academic panels and conferences, including but not limited to gender and racial diversity. I was involved in planning one conference this year, and am involved each year in planning the list of speakers and attendees for the Annual Law and Religion Roundtable (although the lion's share of this hard work is done by my friend and co-organizer Nelson Tebbe, and most of the rest of the work is done by our other co-organizer and friend, Rick Garnett). I've also helped plan a few other panels and conferences here and there, and have advised the Alabama Law Review on its symposium planning. I'd like to offer some thoughts of my own here.

As a preface, I should add a note by way of confession, since the tweet that sparked Mike's post suggested that men should refuse to appear on a panel if there is not at least one woman on the panel. I'm not sure that plea, if one agrees with it, should stop at gender, and a person interested in gender, race, class, and intersectionality might ask why the suggestion stopped there. Still, I must confess that I just appeared on a conference panel on which there were five men and one woman, who was "only" the moderator. (She happened to be the most impressive person on the panel, for what it's worth.) I found it striking and surprising. I will note, though, that panelists often don't know what the composition of a panel will be until rather late in the process, when they've already made a commitment to appear. I'm not rejecting the suggestion of the tweet, and in such situations one should at least write to the planners and urge them to see whether something can be done about it; better yet, one could ask or insist in the first place, upon accepting, that there be at least one woman (or what have you, including insisting that the panel is not all like-minded on the issue) on one's panel. But the timing and logistics are a complicating factor. I will note, in fairness to the planners of that conference, that the mix of men and women on the overall list of conference speakers was quite strong. I will also note that in past years, I've put up one or two posts (which I couldn't find, alas, but commenters who do are welcome to put up the links) examining the gender composition of panels at the AALS annual conference. Many were reasonably balanced. A number, often associated with particular sections, were composed of only one man or only one woman. A few, to my great surprise, were all men or all women. The AALS usually advises program planners to seek various balances, including gender balances, but the advice apparently doesn't always take, and I don't know whether it does any follow-up or not when it looks at the proposed speaker list and finds serious imbalances. 

Here are my thoughts, for whatever they're worth. 

Posted by Paul Horwitz on May 23, 2018 at 11:56 AM in Paul Horwitz | Permalink | Comments (7)

Wednesday, May 16, 2018

New Constitutional Law Jot: "#Resistance, With Candor"

Jotwell, of which I am a co-editor of the Constitutional Law section, specializes in calling attention to new articles we "like lots." I liked Sandy Levinson and Mark Graber's recent article, The Constitutional Powers of Anti-Publian Presidents: Constitutional Interpretation in a Broken Constitutional Order, lots. And here is my "jot" discussing that article, titled #Resistance, With Candor

Liking an article lots is not the same thing as agreeing with it completely or not having serious questions and potential objections to it. In the jot, I set out Levinson and Graber's recommendations for courts dealing with actions of this administration and their reasons for those recommendations (which are virtue-based!--I'm happy to see so many people are now interested in aretaic questions in law), commend them for the candor of those recommendations, and raise broader questions about what their approach means and how it would be applied. An obvious question is how we can distinguish acceptably "Publian" presidents from unacceptably "anti-Publian" presidents. But I am more interested in another question, which I have said and continue to think deserves more attention: What's the goal or end game? Here's an excerpt from the jot:

Another important question, one I have noted here before, is what the precise goal of extraordinary skepticism toward anti-Publian presidents in general, and Trump in particular, should be. Should it be one of total resistance? Or should it be to nudge such a president into a more “Publian” mode—to “normalize” that president—and then return to the standard, deferential approach to routine executive action? . . . 

This question deserves more attention than it has received. It matters greatly—both to law and judges, and to politics—whether the goal of resistance to Trump is total resistance, or simply ensuring that his administration is not tyrannical, arbitrary, or chaotic. Levinson and Graber argue that there is an important distinction between “bad” presidents and anti-Publian ones. If our general assumption is that constitutional law and politics make “merely” bad policies a matter for political debate, then our choice of goal matters for both healthy politics and the legitimacy of the legal and judicial #Resistance. . . . [A] resistance needs a clear goal and stopping point. It should be able to distinguish between fighting ordinary bad policies by ordinary means, and using extraordinary measures to counter extraordinary “breakdowns” in political and constitutional norms. Similarly, an argument for extraordinary legal responses to anti-Publian presidents demands a clear goal for courts. Rendering an anti-Publian president more Publian seems like an appropriate goal, and suggests that when judges succeed in doing so, they should revert to more ordinary forms of judicial review. There is room for disagreement about this. But discussion is essential.

There's more, of course, including an application to the travel ban case and some thoughts about so-called constitutional "settlements." It's long for a jot--of course; I wrote it--but short by legal academic standards. Enjoy! 

Posted by Paul Horwitz on May 16, 2018 at 09:04 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, May 09, 2018

On Student (and Faculty) Evaluations: Some Good Reading and One Modest Proposal

The Chronicle of Higher Education has published an interesting lineup of pieces on end-of-semester student evaluations, a perennial subject of interest for academics. The "con" side is represented both well and more thoughtfully than usual by Michelle Falkoff, a clinical associate professor of law at Northwestern. The title of her piece (which she may or may not have chosen or approved)--Why We Must Stop Relying on Student Ratings of Teaching--is subtly indicative of that thoughtfulness. It is not a plead for abandoning them, but against relying on them solely or heavily. The main argument often brought out against them is made here, and in another piece: student evaluations tend to treat women and people of color differently and worse. Beyond that, however, they may also display "biases that fall outside traditional categories of discrimination," including "student negativity toward classes they perceive as overly challenging or taxing," that "harm an institution’s ability to use student evaluations to gauge instructors’ effectiveness." These trends have been added to by other negative features as universities move toward online evaluations, which have reduced the number of students filling out the forms and tend to adopt the snark of other online writing.

The "pro" side is also represented in the issue, refreshingly, in a "Defense (Sort Of)" of student evaluations by Kevin Gannon. Gannon writes that student evaluations are "a flawed instrument" at best and a "cudgel used against faculty members" at worst. But he argues that whatever students don't know about what they're evaluating, they are still "experts on what they experienced and learned in a course, and they ought to have a voice." And he too cites studies, which suggest that despite their flaws, student evaluations are still some of the best measures of faculty effectiveness.

My desire here is not to take a side between some reductive version of "pro" and "con," although some professors do have a fairly reductive negative view of student evaluations. One reason for that reluctance is my fairly blindered perspective. Like all professors, I have received nasty and unhelpful evaluations. (I have also, to my shame, had bad semesters in which the evaluations reflected the fact that I did not teach as well as I should have. I try to take those moments to heart, weeding out merely hostile rants but looking for common complaints that suggest areas of improvement and trying to implement them in the next class. What I ought to do every semester, but generally don't, is survey my students at least once early or in the middle of the semester, while there is still time for mid-stream improvements.) But students, so far as I can tell, don't judge me for what I wear (and I often dress unconventionally for class), don't apply irrelevant criteria for evaluation, and don't impose other unreal or uneven expectations or stereotypes on me. If I received such evaluations as a matter of course and knew that the data suggested they were likely to be more hostile because of irrelevant factors, I would not be keen on them either. Since I don't face such barrages, I am inclined to accord greater weight to the complaints of those who do. (I am not a fan, however, of those popular videos of professors reading hostile student evaluations, half in pointed humor and half in anger, just as I'm not a fan of the endless stream of "It's in the syllabus" complaints professors favor on Facebook and elsewhere. Students should be treated with respect, given that they are both a main part of our callings and the source of our livings. Everyone vents and jokes about their jobs, but more dismissive professorial treatments of students are all too common in the private and only semi-private spaces of social media.)

As Gannon argues, though, students still deserve a voice in their educations. If they are not simply "consumers," neither are they inconveniences or adversaries. And there is certainly such a thing as more or less effective instructors. What I admire about both his and Falkoff's pieces is their refusal to throw the baby out with the bathwater by, say, suggesting that we get rid of student evaluations while remaining vague and cursory about proposed "alternate methods of evaluating teaching effectiveness." Falkoff, in particular, rather than simply launching arrows at student evaluations, builds on her extensive experience to offer a host of reforms we might consider. Falkoff believes that "holding instructors to high standards is important, and student feedback is relevant." But she believes that we should treat them as only one piece in a "more holistic strategy in which multiple factors contribute to a more accurate, consistent, and well-rounded assessment." Similarly, Gannon argues that the "best faculty-evaluation systems are multilayered and employ a number of different measures," including "faculty narratives, peer observations, reflective dialogue, and sample teaching materials." 

Neither writer talks much about how we could improve student evaluations themselves. Doubtless there's a literature out there on that subject, and doubtless there are costs and benefits of moving to a better set of questions, including a drop in response rates (although clearly the approach of using online, "press a number between 1 and 5"-type evaluations has not resulted in a great response rate either). We could certainly aim to write better and more specific questions, and encourage detailed and specific responses rather than either numbers alone or general invitations for comments that allow students to rant at will. And rather than simply hand a set of evaluations (or a website address) and a brief and mechanical set of instructions to a student to read, we could do in the evaluation-distribution process to explain their purpose and prompt students to offer more serious responses. (Maybe the job of distributing student evaluations or links to those evaluations, and explaining them, should be given to higher-level staff.)   

On the "holistic" side, I do have one proposal to make. Many complaints about student evaluations note that students may not know as much about teaching and about the goals of a particular class as do seasoned instructors themselves (although, in law, few professors learn by anything other than experience and a marginal amount of mentoring by senior professors who may lack little serious pedagogical knowledge themselves; we are not necessarily much more expert about teaching than our students are). I agree that faculty evaluations of faculty teaching should be a major part of the evaluation process. I would suggest the following:

1) Every tenured faculty member should be obliged to visit an equal, and substantial, number of their colleagues' classes each and every semester--say, ten classes per semester--and offer feedback to those instructors and to the administration about the classes they visit. The list of whom to visit and the dates of those visits should be randomly assigned. Every faculty member, including tenured faculty, should receive at least two or three visits by different faculty members every semester.  

2) Those evaluations should involve more than a cursory visit to the class, and sometimes an incomplete visit at that. Professors should be obliged to read the material for that lesson and the syllabus for the course, and stay for the entire class.

3) Evaluations should be always be written and always be detailed. They should follow a set of rubrics designed in advance, including areas of effectiveness, areas of weakness, concrete suggestions for what should be improved or changed and what should be retained and enhanced, and so on. 

4) As I noted, those evaluation visits should emphatically include visits to tenured as well as untenured professors. Length of tenure is no guarantee of good teaching, it is easy to become complacent, and everyone's teaching can be improved.  

5) The law school administration, either directly or through a faculty committee or both, should be obliged to read, collate, and evaluate all those evaluations--not primarily for purposes of evaluating individual teachers, but for purposes of evaluating how well the faculty as a whole teach, what common flaws (if any) they display, and what the best practices are on the faculty. They should be required to write an annual report for all faculty members setting out this evaluation and set of recommendations about what to do and not to do. They should follow this up with a mandatory, dean-and-faculty-led meeting for all faculty to discuss that report, and especially best and worst practices. 

6) Professors who fail without good cause to visit the requisite number of classes and take their evaluation duties seriously, say by failing to write a report or not making it a serious and detailed report, should face penalties, from public shaming to the withholding of one's paycheck or summer research grant until one has completed one's requirements.

What I like about this proposal is that it is burdensome and widely distributed. Tenured faculty members have a duty to their law school, to their colleagues, to their students, and especially to students and to junior colleagues. It should be taken seriously, not just paid lip service. A few professors who are more willing to engage in service than others, and who thus face a disproportionate burden of service as a result, should not be made to do all the work for their colleagues. This is a collective and indefeasible duty. There are good reasons to worry about student evaluations, especially poorly designed and hastily administered ones. But there is an obligation to provide serious alternatives, to make them good ones, and to treat them as a responsibility of the entire faculty, individually and collectively. Teaching is a or the central part of our job, and we should be obliged to take it seriously, both at an individual level and at a collective and institutional one. And, despite the serious reasons to dislike student evaluations, tenured professors who merely take pot shots at them from the side should be obliged (along with everyone else) to be heavily involved in making sure our students receive the best possible instruction.

I think faculty members who take seriously either their teaching responsibilities or their faculty governance responsibilities, or both, will welcome such a proposal. I should think that faculty members who worry most (and most understandably) about bias in the evaluation process should welcome a system that is more serious and systematic in providing a better means of evaluation alongside (and not simply replacing) student evaluations--which, to be sure, ought to be improved as well and should not be given undue weight, at least without culling them, looking for genuine patterns and problems, and so on. (Student evaluations should also ideally be offered more than once and not simply on the penultimate day of class.) They too should be happy to be a part of the solution, even if it is burdensome, as long as it is universally distributed.

I suspect that it is just possible that a few professors will stamp their feet and complain about having to do a great deal of extra work. (No doubt one or two will find a way to work the phrase "academic freedom" into their diatribes.) But I don't think that, say, 30-60 hours per semester spent on mandatory duties aimed at improving the teaching quality of our institutions is an unreasonable demand on us, given the importance of teaching in general, especially in a professional school, and the fact that teaching and service are both major components of our duties as professors. And it is frankly a good thing to smoke out those professors who enjoy complaining but are less than eager to do something about the things they complain about.

I should add that various universities and law schools may already do some of these things. Some schools, for instance, have post-tenure review, and others may simply take our teaching responsibilities more seriously. I'm happy to hear in the comments about more concrete examples of what schools are already doing. And I'm happy to hear about alternatives, both for improving (rather than eliminating altogether) student evaluations and for improving faculty evaluation of teaching--although I think it is valuable and important for the latter to involve serious and universal duties on the part of the tenured faculty.          

 

Posted by Paul Horwitz on May 9, 2018 at 07:45 AM in Paul Horwitz | Permalink | Comments (18)

Thursday, May 03, 2018

"Clerking for Grown-Ups"

I very much enjoyed writing this paper, and I hope the few people who read it enjoy it as well. It is partly a tribute to my former boss, Ed Carnes, current Chief Judge of the United States Court of Appeals for the Eleventh Circuit, for whom I clerked in 1998-1999. It is part of a tribute to him in the latest issue of the Alabama Law Review, on the occasion of his twenty-fifth anniversary on the bench. (The issue also includes some terrific papers resulting from a Law Review Symposium on Harper Lee.) But it is largely a reflection on clerking and the clerkship culture, and its influence on the wider legal, and legal academic, culture. In its own clumsy way, it is an effort to use the tribute format not for the standard (and, for the reasons I offer in the essay, perilous) encomium, but to engage in useful and critical reflections about a particular judge and about American legal culture more generally. Having praised that approach to judicial tributes here, I had no choice but to adopt it myself. Here is the abstract:

This essay is in part a tribute to my former boss, Chief Judge Ed Carnes of the Eleventh Circuit, for whom I clerked in 1998-1999. But it is largely a reflection on clerking and the clerkship culture itself, and the effects of that culture on the wider legal, and legal academic, culture in the United States.

The tributes by former clerks to judges that appear in the pages of law reviews are most likely to celebrate the judge as a heroic figure, and to exalt judges who: 1) cultivate a familial rather than a more formal and mundane relationship with their law clerks; 2) engage in judging as a "mission," seeking to advance particular (generally politically tinged) values in law and viewing other judges or courts as obstacles to that mission; and 3) treat their clerks as junior or even full partners in that mission. Law clerks who find that their clerkship is actually more mundane or workaday in its nature, that their judge does not cultivate a familial relationship with them, and that his or her vision of the judicial job is not "mission"-oriented may find that reality disappointing. Even if these workaday relationships are the norm, they are less likely to fill the law reviews than the romantic and familial vision of clerking. That vision has tremendous visibility and influence in the legal, and legal academic, culture. One reason for this may be that such judges are more likely to select for individuals who are skilled at seeking out, cultivating, and serving powerful mentors, that these clerkships are more likely to culminate in elite positions in the legal profession and academy, and that this process and vision then perpetuates itself.

In this essay, I argue that whatever rewards this romanticized vision offers, it has dangers too. It breeds a sense of lifelong clerkship, in which much of one's career, including a career in legal academia, is spent writing apologia for one's own judge or a particular kind of judge and thinking from the perspective of the judge or law clerk. Even if the work that results from that perspective is excellent, it may be immature. The American clerkship culture is one of hero-worship. It encourages an enduring adolescence and risks a failure to achieve full adulthood and independence. At its worst, it is unhealthy--for the clerks, for the professionals they become, for the judges themselves, and for the wider legal and legal academic culture. (It may also be true that "familial" clerkships have particular dangers, both for the clerks and for the judges who cultivate such relationships.) For developing a measured, independent, adult perspective on law and judging, there is much to be said for the more unsung clerkship: the clerkship in which the job is "just" a job, not a romantic mission or battle for justice; in which the relationship with one's judge is a "mere" professional employment relationship, not a familial one; and in which one receives a good education in the law but not conscious cultivation as a lifelong ally or acolyte.

It's shorter than the average law review article (a low bar, admittedly), if longer than any "tribute" has any right to be. I hope you will enjoy it just the same. There is much to disagree with in it, no doubt, but I hope it also provides some cause for useful reflection and discussion.     

Posted by Paul Horwitz on May 3, 2018 at 09:18 AM in Paul Horwitz | Permalink | Comments (0)

Tuesday, May 01, 2018

File Under "The Scare-Quoting of 'Free Speech'"

I wrote recently about a seemingly popular (in some precincts) and, so far as I can tell, quite sudden trend in public discourse, which I called the "scare-quoting of 'free speech.'" Just as arguments about freedom of religion over the past several years have involved conversation-stopping rhetorical arguments that particular religious freedom claims are actually "religious freedom" claims that do not involve freedom of religion at all, and are really part of a more or less organized campaign to achieve other interests by various more or less shadowy groups, so we are seeing the argument that invocations of free speech are not about free speech at all, but organized and strategic arguments about "free speech." As I wrote in that post, "It is simultaneously remarkable and unsurprising to see the phrase free speech start traveling down the scare-quote path."

To repeat what I said there, I do not oppose the fact of serious arguments for revisiting and revising free speech law and principles arguing about their its scope and nature. That is because of rather than despite the fact that I disagree with them. I do oppose crude, propagandistic versions of these arguments, such as scare-quoting, which is not an argument at all but a rhetorical strategy meant to forestall opposition and conversation through meme-ification and persuasive definition. But serious arguments that candidly argue for a different approach to free speech, insofar as they are clear about the arguments they are making and represent a particular contemporary vision that must be confronted, are welcome. To the extent that they represent a genuine contemporary movement, as opposed to a fringe or relative minority view, they must be acknowledged, with respect, and confronted. Even if they represent the view of a small number of people, they should still be taken seriously if those people are likely to be influential, or if those who disagree with them (like some university administrators) are unlikely or unwilling to say so clearly, and especially if (as I believe is true) their implications are wide-ranging and would significantly affect existing law. Arguments about how big a threat free speech faces on campus, or conversely whether such alarums are exaggerated, are somewhat beside the point here. Insofar as we treat the people and groups making such arguments seriously and actually listen to and engage with what they say, we should take their arguments seriously--and if we do, we can see that they do indeed have significant law-changing potential. Whether that potential is positive or negative is precisely what that argument should be about. Although I have a definite view on that (and think in particular that many of these recent arguments display a remarkable lack of, or unwillingness to provide, historical perspective), it's not relevant here. What is important is to take those arguments seriously and, in doing so, attempt to arrive at a more precise understanding of what they are and what they imply for the law if they gain traction. That requires finding fuller and more candid versions of those arguments rather than the mere rhetorical elements of this movement, such as scare-quoting--although we should take the scare-quoting seriously, as a social and rhetorical phenomenon.  

This is the background that makes Michael Simkovic's post yesterday on Brian Leiter's Law School Reports, modestly titled "A well-organized campaign to bait, discredit, and take over universities is exploiting students and manipulating the public," and leading with the "key takeaway" that "Many lectures about 'free speech' are not really about 'free speech,' but rather are intended to provoke a reaction that will discredit universities," well worth reading. Insofar as Simkovic is a recognized expert in particular areas--specifically, "the intersection between law and finance, with a particular emphasis on credit markets, financial regulation, and taxation"--and he has argued for the importance of relying on "experts" with "relevant expertise" rather than generalists or non-experts or those merely claiming expertise, it is fair and not especially unkind to note that his post is rather wide-ranging in its descriptions and prescriptions on subjects such as journalism, universities and their functions, and free speech. We may therefore want to examine his arguments especially carefully and skeptically. I, for one, have no idea whether Josh Blackman is "muscular" or not--he keeps declining my invitations to an arm-wrestling contest--although I share Simkovic's admiration for Blackman's calmness under the circumstances. And although I have some background and expertise in journalism and have expressed great concern over its current state, I am less willing to make recommendations about what journalists should cover. 

Regardless, the post is important, in my view, both for spelling out his arguments at length and for its representative character. As a representative argument, but one that is clearer and lengthier than the mere rhetorical strategy of scare-quoting in a post on Twitter, it will certainly be useful to my current scholarship on free speech. (My desire to offer a full examination of those and other arguments compels me to avoid stating any conclusions about his argument here. The pace of academic time, thank God, is different than the pace of public cut-and-thrust, and should be. These arguments and issues are not going away any time soon, so I don't think that delay is crucial. Even if it were, sacrificing short-term public influence for the sake of clarity and seriousness is the cost, duty, and privilege and pleasure of being an academic.) More anon, then. In the meantime, here's another one for the files, and it's a post that people interested in the issue of free speech on or off campus should certainly read and keep.   

Posted by Paul Horwitz on May 1, 2018 at 08:30 AM in Paul Horwitz | Permalink | Comments (0)

Monday, April 16, 2018

Re-Examining Doctrine is a Good Thing (But Not an Answer); With Some Thoughts on L'Affaire Blackman

In a response to Howard's post below about the "Blackman incident," Mark Tushnet has a valuable comment, citing to recent work by Jeremy Waldron, arguing for a particular interpretation of heckler's veto doctrine. Waldron is not the only one re-examining heckler's veto doctrine these days. Howard has asked questions about it in a number of posts, and several recent papers have done the same thing. Several recent books are also re-examining these questions in light of current events concerning campus speech. (Or non-events, or "nothingburgers," as our degraded current language would put it. Some have argued that there is no campus free speech "crisis" or even much cause for concern. These two posts argue against that view, but also provide copious links to arguments that worries about campus speech are vastly overblown. I provide these links as much to give readers access to the arguments for that position as to give access to the arguments against it.)

While some of the comments following his post engage with him and with Howard, others, as I read them, are not kindly inclined toward the prescriptions some of those re-examinations suggest. This post is mostly about why I'm glad Mark and others are asking those questions, and why re-examining doctrine needn't lead to changes in that doctrine. But I begin with some general remarks about the Blackman incident and campus speech issues more generally.  

As a fairly traditional civil libertarian on speech issues, I tend to side more with the basic existing heckler's veto doctrine than with the suggestions that have been made for its modification or reform. More generally, I lament that the number of fairly traditional civil libertarians seems to have declined. I worry especially about the possibility that their current numbers are less likely to include university administrators, or at least administrators who not only agree with those traditional rules but are willing to enforce them, even if it means disciplining students. Many faculty and other observers of the university complain tirelessly these days about administrators who, in the competition for students and tuition dollars, spend more time trying to make students or prospective students happy with things like lazy rivers than pursuing and insisting on the pursuit of the traditional university mission. Or they complain about the consumerization or corporatization of the university. Because many of the latter type of critics are often on board with a number of student causes and protests, they less often connect the dots between those concerns and the possibility that administrators are less likely to enforce rules governing and protecting campus speech. Enforcing rules and disciplining students is unpopular and threatens damaging publicity. Administrators who want to avoid making a vocal group of students unhappy, or who want to avoid sustained publicity for some campus incident, will strain to avoid imposing discipline, and to move past some incident as quickly and/or quietly as possible.

Friends who are undoubtedly wiser than I am have described this as smart policy. But I think they're ultimately wrong, as a matter of both policy and respect. That includes not only respect for the academic mission but also respect for students--including the students who are protesting and who, under this vision, might be subject to discipline, with due process but up to and including suspension and expulsion. I don't doubt that some administrators support the students or the values they champion, abhor hateful speech, and are acting--or believe they are acting--for that reason. But some may be acting simply to avoid bad publicity or out of worry about the university's position in the marketplace for tuition-paying students. And others may believe they are acting for the right reasons, but those actions may be influenced by more worldly and financially driven concerns. Sincere people like to keep their jobs and avoid tsuris too. Letting students heckle or no-platform, or occupy offices and buildings, may seem like a way of showing respect for those students. But it also may be a form of condescension, one that waits them out without actually attending or responding to their views. Telling people they are wrong, or breaking the rules, and are subject to discipline sometimes involves taking them more seriously than simply letting them do as they wish does. (Arguing that there is no "free speech problem" on campus can also be a form of condescension, incidentally, although I wouldn't say that about every such argument. It may be that only a small number of students are pushing to radically remake the rules governing speech on campus. But they have genuine ideas and positions, and those positions will have real implications and substantial consequences if they are applied seriously. Arguing that these students' protests and demands are no big deal can be pretty close to treating them as a minor inconvenience or the province of a few students on the fringes, and not really listening to what they are actually arguing for.) As one of my favorite Onion stories notes, sometimes respect includes both listening to someone and responding with a simple "No."

One bright spot in Josh Blackman's recounting of the CUNY incident was that an administrator spoke up clearly to remind the students of the rules governing the event and insist that they be followed. One may certainly wish she had stuck around to make sure the warning stuck, but surely some credit is due. Arguments (as in this thread, with apologies for linking to Twitter) that there was no problem with the Blackman incident because the heckling was brief and Blackman was ultimately able to speak, even if accurate, are incomplete and even misleading without recognizing the possibility that this occurred precisely because the administrator told the students to let him speak or face disciplinary consequences. If no administrator had spoken, we don't know whether he would have been able to speak, or whether the heckling would have concluded indefinitely and with the intention or result of making it impossible for him to deliver his remarks. (After I began drafting this post, Erica Goldberg pointed this out in the comments to Howard's post as well.)  

This last sentence leads me back to Mark's comments. I am happy to give at least two cheers to Mark's straightforward willingness to revisit the heckler's veto doctrine, and the questions that this re-examination and similar efforts by others raise--even if they result in recommendations I don't agree with. It is equally important to note, however, that re-examining a case or doctrine doesn't have to end with a recommendation for change. Sometimes the re-examination may lead to the conclusion that the doctrine is right, or that proposed alternatives would be worse than the status quo. 

Doctrine is not frozen in stone and not immune from criticism or re-examination. A responsible criticism of legal doctrine will acknowledge that it is doctrine, rather than arguing that the law one would like to see already exists and waving away inconvenient precedents. But there is nothing wrong with revisiting and questioning even decisions and doctrines that have attained semi-sacred or "super-precedential" status. Every decision is subject to potential criticism, and every position can be revisited. (And usually is, about once every generation--sometimes with legal consequences and sometimes without.)

That's true of the heckler's veto doctrine too, as important as I believe it is to free speech and First Amendment law. A number of the important decisions of the era that gave birth to the heckler's veto, and to many other important cases and doctrinal lines, may be right but are less than fully reasoned. Many if not all of them were deeply influenced by and rooted in the times that gave birth to them. Those decisions may not have an expiration date. But we should take them out and look at them afresh every now and again, especially as the events that engendered them fade in time, memory, or relevance.

I make this point in part because I see the frozen-in-stone approach from time to time in law and religion, where I do much of my writing. Particularly where its intersection with equality is concerned, I see arguments and articles that describe some set of cases or doctrines described as constitutional "settlements," or various questions as having been definitively "settled." Even if they are not so intended--they could be, but they could equally be the result of conviction, or life in an epistemic bubble, or both)--such descriptions often serve as conversation-stopping assertions. (That's even more true where such assertions are followed by descriptions of re-examinations of or arguments against those "settlements" as insidious, conspiratorial, outrageous, and so on.)

Such arguments can have some descriptive accuracy: some questions are generally treated as either settled or sacrosanct or both by the courts and the legal establishment. We can acknowledge that social fact, but it shouldn't prevent us from going on to question those "settlements." Those settlements too often come from under-reasoned decisions, or are closely linked to particular circumstances or moments in time. Even if they were exquisitely reasoned, none of them are perfect and all of them are subject to re-examination. That's especially true for law professors, whose tenured positions and lack of clients give them the luxury of being able to question even "settled" doctrines, and put them at one remove from having any professional stake in those doctrines. They do not have to spend their time convincing courts that some doctrine is "settled" or some case is "easy." They are free from the obligation to take care to use only the sort of language that judges will listen to or that is likely to persuade them. If anything, they're not just free to re-examine even sacred precedents or so-called "constitutional settlements" or "super-precedents," but obliged to do so. 

But it is equally important to note that "revisiting" or "re-examining" a doctrine or decision does not mean abandoning that decision, and may in fact result in the conclusion that it is more important than ever to retain and re-emphasize that rule. Re-examination may reveal that the doctrine is a pretty darn good one. It may suggest that any proposed alternatives are worse than the existing rule, or that even if those alternatives might be better in theory, either their actual application would be imperfect or the costs of transitioning from one legal regime to another would outweigh any benefits. One may decide that the context in which the rule was originally crafted has little application to the present--or that it has equal application to the present, or even that other conditions require a heckler's veto doctrine (or some other rule) even more than it was needed in the first place. I have suggested that the possibility that something is "settled" does not oblige us to treat it as sacrosanct or beyond academic criticism or re-examination. But that doesn't mean there isn't value in settlement; it just means it's not a conversation-stopper.

This point should be obvious enough, but there are reasons to make it. Observers of scientific research have noted for some time now that researchers have strong incentives to find "new and exciting results," or counter-intuitive ideas, which are more likely to attract prestigious publications, press attention, and so on. They have argued that we need to give more value and attention to negative findings. The same is true in law. On the whole, "Rethinking [X]" will do better, place better, and get more attention if, in addition to being in tune with the times, it proposes something new, different, or  radical (or, more accurately, just radical enough but not too radical) than if the result of the rethinking is, "[X] is pretty darn good, or still relevant, or at least the best we can do." The fact that the conclusion is a negative one, or one in favor of the status quo, doesn't make the inquiry less important. The "Rethinking" part of "Rethinking [X]" may be driven by changes in facts, circumstances, law, social norms, legal ideas, current events, or other factors that make it important to look at the doctrine again; or enough time may have passed that it's worthwhile looking at the issues again. But the fact that it's important to re-examine the law in a particular area doesn't predetermine the result of that re-examination. Sometimes the best answer may be that the law is still the right answer and we should stick with it. Indeed, and without wanting to prejudge the results of what I hope will be an open-minded inquiry, one reason I'm grateful for Mark's comment, and for articles like Waldron's, is that they suggest that the time is especially ripe for a re-examination of the heckler's veto that supports its continued usefulness and encourages officials and courts to enforce it with renewed vigor. I'm grateful to Mark for inspiring such an inquiry. 

   

 

     

Posted by Paul Horwitz on April 16, 2018 at 12:50 PM in Paul Horwitz | Permalink | Comments (0)

Thursday, April 12, 2018

Is Free Speech Becoming the Next Scare-Quote Domain?

Granted that the plural of anecdote is not "data." Still, I was interested, in reading this first-person account by Josh Blackman of the protests and heckling that greeted his recent visit to CUNY Law School, to see this picture of a tweet from what appears to be the Twitter account of CUNY's National Lawyers Guild chapter:

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Note the use of scare-quotes around "free speech." I'm not precisely sure about why it was used here, although Blackman's account suggests that students assumed the speech would be provocation dressed up as free speech but really aimed at getting attention and reaction, in part because the announced subject of the talk was free speech on campus. (Provocation is also free speech, of course, and free speech-as-provocation on and off campus is at least as old as Paul Krassner and Abbie Hoffman) Actually, Blackman had intended to speak about originalism, he writes, but "the students were not able to find any other professors who were willing to participate in the event," and the subject of the talk was ultimately changed to free speech on campus. No faculty members could be found to participate in that event either, according to the story.

But I'm less interested in its origins or rationale than in its very appearance. It comes not long after I saw--which means it must have traveled some distance--a tweet by writer Amanda Marcotte, reading:

Students of law and religion are familiar with this phenomenon, of course, as the phrase "religious freedom" has, since 2014 and peaking around last year or the year before, become increasingly rendered in even more-or-less serious media accounts as "'religious freedom.'" This went as far as its scare-quoting in a statement by the Chairperson of the United States Commission on Civil Rights in a report titled Peaceful Coexistence. The point of this epidemic of punctuation, of course, was to contest particular definitions of or assumptions about the meaning of religious freedom, albeit only in one direction. Contestation is a fine and legitimate thing, and an interesting phenomenon to observe. Of course, it can be done more or less deeply or shallowly. Scare quotes fall decidedly in the latter category. It is simultaneously remarkable and unsurprising to see the phrase free speech start traveling down the scare-quote path. Although it does absolutely nothing to improve clarity, accuracy, understanding, discussion, or justice, I'm sure it will be noted with interest by social observers and greeted with delight by typographers who charge by the character.

Posted by Paul Horwitz on April 12, 2018 at 02:44 PM in Paul Horwitz | Permalink | Comments (0)

Tuesday, April 10, 2018

Some Comments on Carissa's Post on Legal Scholarship and Non-Scholarship

My Prawfs colleague Carissa has been doing a superb job in both advancing and drawing attention to the issues she discusses in her most recent post. It is an issue of some interest to me as well, both because I've been blogging for over a decade (albeit less frequently) and dabble in Twitter (which, admittedly and as I've said too often, I find to be like wading in a muddy stream, with or without panning for or finding any gold nuggets). One of her main interlocutors, Eric Segall, has his own post up now on the Dorf on Law blog. I have (and will again crudely publicize) a forthcoming article on some of these subjects and an old, hopefully fun and foolishly candid, piece from back in the day when we were having similar debates about blogs and other forms of online activity by legal scholars in the early 2000s. I wasn't at the conference she refers to, so anything I say about that comes from twits about the conference posted on Twitter while it was occurring. I want to chime in with a few thoughts. I will write at undue length, as usual. But please don't count this as scholarship!

1: The first is the most obvious one and is suggested by what I wrote above: We have had this debate at least once before. More accurately, there have been debates and discussions about academics as public intellectuals for decades, and the legal academy debated the relationship between blogging and legal scholarship pretty fully about a decade ago. Of course we need not take that debate, or any debate, as settling matters, and we might have other things to say about Twitter and other bite-sized forms of writing than we did about blogs. Still, we needn't reinvent the wheel here. My partial sense of that debate is that the consensus that emerged was that blog posts can be a useful form of writing, that they can or should be recognized as a form of service (as op-eds and other public writings are), and that they should not be counted as scholarship for tenure purposes, even though some blog posts can be quite scholarly in nature, albeit without peer review and other disciplinary constraints. I think that's still the right consensus. And that had to do with blogs! Practices vary, but some of the blog posts discussed there were quite long and serious. Some foolish people still insist on long blog posts when they feel they have something to say and want to get the nuances and qualifications just right rather than make a splash. (Or, as in my case, when they write too quickly and haphazardly and don't take the time to refine and shorten the post.) If--and that's a big if, and one not reflected in the posts linked to above, but I gather something like this was said at the conference; again, please take that with a grain of salt, since I'm relying on contemporaneous tweeting--we were to include something like tweets or even tweet threads as activities that should get even partial recognition as scholarship, that would represent quite another step--a step down, I am quite sure. (Incidentally, when I have written long Twitter threads I have been criticized by other legal academics for using Twitter "wrong."* If that's the case, then it certainly should not count as scholarship, any more than we should count interesting faculty lounge discussions or chats over drinks at a conference as scholarship.) As far as either incentives or intrinsic scholarly quality are concerned, I see no compelling reason to revisit the consensus that emerged from the last conversation. Segall cites some bloggers who have written lengthy and serious blog posts. Accepting that characterization for purposes of argument, I note that the bloggers he mentions are also prolific and/or serious scholars. They don't appear to need special incentives to do the blog posts, or at least the existing incentives for doing so, such as notoriety or immediate impact, are sufficient. And not all blog posts come anywhere near meeting that standard. Most don't.  

2: I understand Carissa's "defense of law review articles" to be a general defense, not a strong defense of the status quo in legal scholarship. I was gobsmacked that a commenter defended non-blind review of submissions; I know of few academic defenders of such a practice, and rightly so. I think the quality of a piece should count, not the ostensible prestige of its placement. We could criticize many other aspects, not only of the law review system, but of the format of law review articles and the tricks and stratagems baked into current writing and submission practices by ambitious law professors, and I've done so here repeatedly. Insofar as Segall argues for giving greater consideration to shorter pieces that still constitute good scholarship, I agree. Some of my better pieces (in my view) have been shorter ones, including book reviews (as we do them in the legal academy, as opposed to the 3-page reviews common in other disciplines), often precisely because they aim at a narrower problem, dispense with unnecessary literature reviews (to be clear, not all literature reviews are unnecessary, although even the necessary ones could be done differently or better), and can be sharp invitations to newer or better discussion. Some of the reasons we count long pieces over short ones, or sometimes don't count short ones at all, elevate form (not even form, really, but length) over function. We could also argue about the value of turning more long pieces into full books or published monographs, although that too threatens to elevate form over function. The means of production in law tend to prefer articles over books, and the existence of a vast universe of law reviews means it is easier and cheaper to produce long articles without having to publish books. I think we undervalue books in the legal academy. But it is also possible that some other disciplines overvalue books and that some books in those fields would be better as long articles, if there were journals willing to publish them and books were not the sine qua non for tenure in those fields.  (Law is not the only discipline in which the tail sometimes wags the dog.) Perhaps the right balance lies in between. In any event, I took Carissa's defense not as an absolute but as a comparative defense--as a defense of full scholarship over bite-sized non-scholarly writing, at least for purposes of what we value and give credit for as scholarship in the legal academy. 

3: There are debates about the purpose of legal scholarship. I have my own views on this, but I've offered them elsewhere, and I'm not insistent on winning those debates or ruling "out of bounds" other forms or aims of legal scholarship, although I think they must not sacrifice certain scholarly values for the sake of, say, impact or persuasion. I do not think, however, that "national attention" or "speak[ing] relatively quickly about important current legal events" are genuine scholarly desiderata. Of course these achievements may have considerable value. That doesn't mean they have scholarly value or must be treated as "scholarship." Op-eds, tweets, and other short contributions that make big splashes very rarely are scholarship in any useful sense of the word. They generally do not seriously advance knowledge, require or demonstrate mastery of a difficult field or issue, carefully consider counter-arguments, acknowledge and describe the limits or frailties of their arguments, and so on. If they did, they would be much less likely to get attention; indeed, they would be less likely to get published by newspapers or online opinion-piece publishers in the first place. They generally get attention because they provoke or persuade, and the tools used to provoke or persuade are often rhetorical strategies not necessarily linked to, and sometimes in tension with, scholarly accomplishment or values. Some of the most attention-getting, widely followed legal academic writers in the public arena (I'm thinking especially of Twitter here) are highly questionable in the accuracy and quality of their arguments. (In a comment on Carissa's post, Orin Kerr suggests that doing both--writing an article and then presenting your ideas in a blog post or op-ed--can "combine analytical rigor with public engagement without sacrificing one for the other." That can be true, and Orin is a good example of someone who does so very well. But I'm less sanguine about this one-two combo. Many such "public engagements" aim at persuasion, and do so through rhetorical strategies that can be misleading about the arguments presented more fully in the scholarly article. I'm not arguing against such engagements. But I think scholars who engage in this activity--and I certainly have, in op-eds and other public writings--should either be very careful about what they say there, even at the cost of making it less likely to get published or garner attention, or avoid trading on their job titles and academic positions. There's nothing wrong with writing something as "Joe Blow" rather than "Joe Blow, the Gavin Harrison Professor of Law at Podunk Law School.") I am perfectly happy for debates about the value of public "engagement" and real-world impact to continue. But good scholarship is not a democracy or popularity poll. Its quality is judged from within the disciplinary community. Perhaps few people will read in full the piece by Ryan Williams that Segall mentions (in a fair and non-pejorative way). But some very serious scholars will read it carefully and take it very seriously, and may in the long run judge it to be excellent scholarship. (It has gotten good peer reactions already. I treat the fact of its being published by Harvard as basically irrelevant.) 

4: Some legal scholars end up frustrated with scholarship itself, or end up finding greater personal or intellectual rewards through other forms of activity. (Some of this, I think, is a function of our imperfect processes for hiring legal scholars, which sometimes focus heavily on credentials, or on general signs of intelligence or "brilliance," rather than sifting through the applicants to find those with a true scholarly vocation. Among other things, we do not require the long investment in a scholarly career that characterizes the path for scholars seeking certification in other fields, although we are moving closer to that model. Still, insofar as we don't, we have less evidence of vocation to go on, and the candidates themselves have made less of an investment in being scholars and may be less certain that that's what they want to spend the rest of their lives doing.) Some--I can think of at least a couple each at most elite law schools--become reasonably serious public intellectuals. I can think of one or two legal academics that I would characterize as having become not serious public intellectuals but, in effect, journalists or standard-issue opinion writers. Some of these individuals reach a point where they rarely if ever publish legal scholarship at all. They still write, and some write voluminously. They do not abandon writing altogether in favor of excellent teaching or service (which we might nonetheless value highly in an academic colleague in what is still also, and perhaps primarily for law schools, a teaching and training enterprise). Nor do they necessarily become people who retain their tenure but devote an absolute minimum of effort to scholarship, service, and tenure, a category of colleague generally labeled as "dead weight" within the academic profession. But they change writing genres. They don't engage in scholarship any more.

As general readers, we may value what they produce very highly. More particularly, what they produce may be valued very highly by the world outside the academy. They may garner significant book sales, go on the paid lecture circuit, get commissions from think tanks or advocacy groups, and get paid to write by various mainstream publications. In other words, they have considerable incentives and can reap considerable rewards as public intellectuals. I quite enjoy some of this work. But it is not at all clear to me why one needs to, or should, retain one's paid and tenured academic position to do it. There are plenty of people who aspire to an academic position precisely because they want to advance knowledge in a discipline through a method and form of writing that is expensive and difficult to produce (at its best, anyway), uncertain in its time horizons, unlikely to pay for itself if sold to the public, and aims at the longue duree rather than at short-term gain and rapid production. These are the people who need academic positions. 

If you have decided to devote yourself instead to other forms of writing, that's fine with me. It may be your true vocation and the greatest contribution you can make to the world. But if you've made that decision, perhaps you ought to cede your tenured position to someone who wants to pursue a life of scholarship, and devote yourself to this work. You will lose security of position, true. But the point of that security of position is to serve, protect, and contribute to the discipline, not to convenience the individual. There is no guarantee that David Brooks, Kevin Williamson, Ta-Nehisi Coates, or non-academic writers of serious general-interest books, will keep their current jobs or sell a lot of books. They're engaged in a chancy enterprise, albeit one that may turn out quite profitably. But that doesn't mean they should have sinecures at universities. My academic job allows me to blog; but my blog is hardly a good reason for me to have and keep that job, even if I were one day to say something useful in this space. You will also lose your title, which gives you the appearance of authority. But that appearance of authority is a function of the fact that you engage in scholarship, subject to all its duties and constraints and disciplinary judgments about its qualities. There is no sufficiently convincing reason why one should retain the title and the authority that comes along with it if one has abandoned the activity that is an essential element of that authority, and no reason why you can't find sufficient authority in what you write rather than from some academic job description in your author ID. Professional courtesy (or omertà), a desire not to offend, a healthy dose of self-interest, and the unimaginability for many scholars of giving up that job generally lead us to refrain from suggesting that not everyone should be, or remain, a tenured academic. But it's true. And there ought to be no shame, and may be much glory (not to mention honor, for the person who acts accordingly), in suggesting that people who have, or discover over time that they have, a non-scholarly vocation, ought to pursue it--and pursue it outside the academy.

I hope it is clear this is not aimed at Segall personally. I know he has a book coming out and I assume by this that he is still engaged in scholarship. I trust he takes teaching and service (in addition to the service of writing for Slate or what have you) seriously too. I am speaking more generally. Those who seek engagement and attention without also pursuing scholarship, who want to be general public intellectuals without remaining serious contributors to an academic discipline, may like having academic positions while they do so, but don't require them. And it's not clear they should have them. The cost of their not surrendering such positions is visited on would-be serious scholars who don't get jobs as academics or struggle as adjunct or contract faculty. They need and deserve those tenure-track positions more, so they can do the scholarly work for which such positions were intended. By all means give non-scholarly writing some credit, as service anyway. But that's all that's needed.    

* A short addendum for the sake of fairness. I can't recall whether this person in particular motivated the sentence asterisked, but one person who engaged in such a discussion with me on Twitter takes issue with my description of that discussion and believes I have mischaracterized it. I'm happy to note that disagreement. I'm also happy to note that 1) I have received similar reactions from others on Twitter, and I think the general observation holds; 2) I certainly had that general discussion somewhere in mind but can't recall whether what I had in mind was this individual's criticisms at the time or those of others; and 3) disputes about the meaning of statements limited to some 280 characters are likely to be legion, especially among law professors (myself included, no doubt), who are often willing or eager to challenge other people's readings and understandings, and seem to me to support my view that the consensus that emerged about giving not giving credit to blogging as "scholarship" should apply tenfold to Twitter.  

 

      

Posted by Paul Horwitz on April 10, 2018 at 10:34 AM in Paul Horwitz | Permalink | Comments (5)

Tuesday, April 03, 2018

Quillette on Critical Legal Studies: The Wrong Start to What Could Be an Interesting Discussion

I occasionally read and generally enjoy the online essay site Quillette. I'm not sure how I would characterize its "politics," but I'm not much interested in doing so in the first place: the essays at their best are interesting, thought-provoking, and well-expressed, and that's good enough for me. It just put up a piece titled "Beyond All Warnings: The Radical Assault on Truth in the Law." The gist of the piece is that "the significant influence of ‘postmodern neo-Marxists’ on the legal academy is undeniable and pernicious," and that Critical Legal Studies, along with other fields such as Critical Race Studies, which the piece treats (mistakenly, in my view) as basically "subgroups" of Critical Legal Studies, have become the mainstream within the legal academy. 

Leaving aside my disagreement with various assertions and detours along the way in that piece, I respectfully think this is quite mistaken. Serious CLS scholars are rare in the legal academy in the United States. (I cannot speak to the other countries mentioned in the piece. Certainly CLS seems to have had more longevity and popularity elsewhere, perhaps in part because there are more academically oriented law "departments" elsewhere, whereas the American legal academy, however much and fairly it is criticized for being too impractical, is still more of a mishmash of professional training and scholarly work.) Much of the work that is criticized in rather general or anecdotal terms in the Quillette piece is really establishment progressivism, not CLS. Most American law professors these days are, I think, at best uninterested in things like indeterminacy and rule-of-law critiques. It is possible that some contemporary legal scholars take such ideas seriously in private, but believe these urgent times require us to be silent about those issues, or at least put them on the back burner. More common, I think, are those who either never bought into CLS, or assume it’s old-hat stuff, and thus has no value for purposes of either intellectual discussion or professional advancement, or that it was “refuted.”

CLS was never popular among establishment liberal law professors, who if anything were the targets of most of its critiques. Nor is it popular among most modern establishment progressive law professors (assuming, as I do, some difference between being a "liberal" and being a contemporary "progressive"). Consciously or unconsciously, these scholars are more likely to prefer the idea that some values or "settlements" are close to absolute and that they are beyond critique, serious problems of indeterminacy, and other potential "viruses" in their program. They want those values to be honored and advanced, through law and including through judicial review. They are therefore not keen on an intellectual program that might suggest that such projects are self-contradicting, predictably cyclical, futile, or otherwise mistaken. If anything, I think the tendency these days is not only to reject or ignore CLS, but even to publicly avoid open acknowledgment of Legal Realism, despite the cliche that we all all Legal Realists now, in favor of statements about "neutral magistrates" and "sound doctrinal principles." I can't imagine a serious Crit or even Legal Realist using such terms, except as a prelude to "trashing" them.

Certainly there are progressive legal academics drawing on the literature of things like Critical Race Theory in their current work. But CRT was not just a "subgroup" of CLS. It actively resisted some aspects of CLS, such as the critique of rights. And much of the contemporary scholarly literature drawing on or referring to things like CRT is much heavier on some basic and now conventional premises drawn from that literature than it is on deep critique--especially self-critique. Some of this semi-CRT or completely-non-CLS scholarship is excellent, of course. Among other things, some terrific doctrinal scholarship is being published these days, although it is curious and deserving of notice that we seem to have returned so enthusiastically to doctrinal work even as the legal academy has hired more people trained in other academic disciplines. But this excellent work, progressive or otherwise, is not Crit work, and it doesn't aim to be. 

A conventional view among political conservatives, outside and inside the legal academy, is that CLS and CRT had a strong and lasting influence on legal scholarship and continue to affect, or infect, it. That is basically the position of the Quillette piece. I think that view elides differences between progressivism, liberalism, and genuine Critical Legal Studies work. (And some conservative legal scholars--including many of the more interesting ones, in my view--are actually more interested in and sympathetic to Critical Legal Studies than many mainstream progressive legal scholars.)

My own view is that we need more CLS work in legal scholarship right now, not less. (And that includes serious CLS work from a "conservative," religious, or traditionalist perspective. Although some of CLS's leading lights argue that it was always mostly just a location for people on the Left, I don't think that's entirely true; nor does it mean that this is how its ideas must be used. In any event, as I suggested, most progressive law professors are more accurately described as bourgeois establishment progressives than as genuine Leftists.) I emphasize "right now" both because I think there's too little of it these days, and because I think this is an especially fruitful time for CLS work. A sense of urgency and common cause can, of course, be productive and lead to important real-world change. But that sense can tend to lead to work that may be doctrinally excellent, but is light on critique or self-critique, or fails to ask broader questions--especially if they might damage the cause. It runs the risk of becoming dogmatic about its premises. At a moment at which there are many serious criticisms of liberalism and/or questions about its future, combined with substantial unanimity among legal academics about various progressive values (as seen, to be clear, through an establishment lens) and the routine invocation in current scholarly and public writing of things like "rule of law," faith in judicial review, and so on, there is a lot of room for interesting and valuable work questioning those assumptions and premises.

In saying so, I'm not suggesting that legal scholars or lawyers shouldn't file lawsuits or amicus briefs, or otherwise challenge and hold accountable some actions of this administration. But that activity does not, or should not, prevent one from writing scholarship that takes a deeper and more critical look at various assumptions about the law and legal doctrine. Someone interested in this kind of legal advocacy might worry that writing Crit scholarship, or even acknowledging in one's scholarly work CLS critiques of things like "neutral magistrates" or "sound doctrinal principles," might undermine one's legal advocacy at a crucial moment in our nation's history. That worry seems exaggerated, given that judges pay little attention to serious Crit scholarship in the first place. And in some cases, that Critical scholarly work might suggest problems with some forms of current legal advocacy, such as reliance on the courts, and counsel in favor of other forms of advocacy or activism.

The bottom line, I think, is that 1) the piece defines CLS way too broadly, and attributes to it things that have much less to do with CLS than with conventional establishment liberalism or progressivism, and that 2) we need more good CLS scholarship--scholarship that need not have any particular political valence--and not what we actually have right now in the American legal academy, which is almost none of it. 

Posted by Paul Horwitz on April 3, 2018 at 11:14 AM in Paul Horwitz | Permalink | Comments (6)

Monday, April 02, 2018

Candor, Integrity, and the Ethics of Legal Scholarship

I was delighted to be a part of organizing and participating in the Marquette Law Review's symposium this fall on the ethics of legal scholarship. My co-organizers, Carissa Byrne Hessick and Chad Oldfather, shouldered most of the load and put together a great discussion. Carissa's paper for that conference, on law professors on Twitter, has already provoked and produced a good deal of discussion and debate. Chad's contribution to the symposium is, to use a standard law-blog cliche, typically thoughtful--and also fun to read.

I doubt my own contribution amounts to as much. It is certainly not as focused as Carissa's, although it does talk about law professors who engage in what I describe as "multi-platform" work, including Twitter, op-eds, scholars' letters, and amicus briefs as well as legal scholarship, and the potential dangers or confusions involved in doing so. And it begins with a discussion that was important to me as an institutional pluralist and may be important to those who argue over how prescriptive we should or shouldn't be about the ethics of legal scholarship, but for others will be less important. If they want more concrete recommendations and arguments, they'll want to turn to the second half of the essay.

The paper is called "Institutional Pluralism and the (Hoped-For) Effects of Candor and Integrity in Legal Scholarship." There may be a few relatively minor changes before publication. Thanks to the Marquette Law Review for letting me post this version. Here's the abstract. Enjoy! I confess I enjoyed writing it. 

This Article is a contribution to a symposium on the ethics of legal scholarship, held at Marquette Law School in September 2017. It has two goals: 1) to consider whether it is possible to contribute to debates on the ethics of legal scholarship while favoring an institutional pluralism in which different forms of legal scholarship are possible and legitimate; and 2) if one concludes (as I do) that it is possible to for an institutional pluralist to hold and advocate views on the ethics of legal scholarship, to explore the implications of the core values of ethical legal scholarship that I focus on here — candor and integrity — for different models or visions of legal scholarship.

On the first question, the Article describes institutional pluralism. It rests on two propositions: 1) Various essential institutions in public life and discourse, such as universities or the press, perform distinctive functions and follow different norms. Those norms show some stability and continuity but are subject to change over time, as a result of both internal debate and external influences. These institutions should be judged primarily on their own terms, and should not be required to follow the “logic of congruence.” 2) There is room for a plurality of approaches and models within those institutions. Not all newspapers, for instance, must follow the model of disinterested reporting; not all universities must privilege the disinterested truth-seeking model over a model that favors thicker substantive goals such as justice or equality. There may be outer limits to these variations, but within them there is room for different models of and approaches to scholarship — including legal scholarship. An institutional pluralist within the academy is certainly free to argue in favor of a particular model of scholarship and scholarly ethics, but should do so with a certain spirit of modesty and charity and not insist that competing visions or approaches be expelled from the “academic” sphere.

The two core values I single out as essential to ethical legal scholarship are candor and integrity. The Article asks how those values would apply to, and improve, different models of legal scholarship. They include the normative model that remains the most common form of legal scholarship; legal scholarship that sees its primary goal as “speaking truth to power”; and advocacy or “engaged” scholarship, particularly when it involves not just traditional scholarship but the pursuit of advocacy across a variety of formats and platforms, such as social media, op-eds, and amicus briefs or scholars’ letters. In each case, I do not reject these forms of scholarship or advocacy, but insist that their authors should be clear and transparent about their goals, arguments, animating premises, and argumentative or persuasive tactics. Doing so may sometimes reduce the persuasive power of such arguments, but it will allow readers to better understand the aim of the scholarship or public advocacy and its potential limits or omissions, and judge its arguments accordingly. Some scholar-advocates may consider these rules too confining. They might consider engaging in such advocacy in a purely civic capacity, without invoking their academic positions and ostensible academic expertise or authority. In extreme cases, they may decide that they ought to leave the academy and engage in full-time advocacy.

    

Posted by Paul Horwitz on April 2, 2018 at 08:10 AM in Paul Horwitz | Permalink | Comments (2)

Friday, March 02, 2018

Upcoming (and Ongoing) Symposia at the University of Alabama School of Law

With what I hope is pardonable pride and an utter absence of institutional self-interest, I wanted to call attention to two events at my law school, one taking place today and one in a few weeks. 

We have been blessed this year by the presence at the Law School of Joyce Vance, formerly the U.S. Attorney for the Northern District of Alabama. With her hard work and that of others, today the Law School is hosting a symposium titled The Role of Lawyers in Good Government, in which a variety of distinguished current and former U.S. Attorney office-holders and other high government agency lawyers discuss the role of lawyers in government and public policy. I am sorry this was posted so late, but I think it's a terrific symposium and well worth celebrating.

In a few weeks, the Alabama Law Review will hold its annual symposium. This year, the subject is Life After Scalia: Justice Gorsuch and Modern Textualism on the Supreme Court. The speakers include Victoria Nourse, our own Heather Elliott, Christopher Green, Hillel Levin, Kristin Hickman, and Matthew Franck. The title might have added the words "(and More)" after "Modern Textualism," because in addition to that question, panelists will be discussing other issues, such as the judicial nominations process. It should be a great symposium and is certainly a timely one. 

 

Posted by Paul Horwitz on March 2, 2018 at 02:48 PM in Paul Horwitz | Permalink | Comments (0)

Sunday, February 25, 2018

McGinnis on the Cult of RBG: A Sympathetic Dissent

I have written in recent months about my concerns over cults of personality or hero worship around judges: the relationship of this phenomenon to clerkship culture, its particular application to celebrity treatment of Justice Ruth Bader Ginsburg, and other matters. Those concerns have something to do with various work I'm doing, however slowly, on eventual law review pieces. At the often-interesting Law and Liberty website, Professor John McGinnis has a very readable piece on the "Notorious RBG" question, titled "The Troubling Apotheosis of the Notorious RBG." (From what I think one can fairly call a different part of the political spectrum, Professor Richard Hasen also recently published a piece criticizing this phenomenon. Concerns about the celebrity treatment of Justice Ginsburg, or any other Justice, and about some of her public statements, are not confined to the right. Indeed, one thing that struck me about recent Twitter and online commentary was that many conservatives who have criticized Justice Ginsburg for her extrajudicial statements wrote approvingly of recent public statements she made about the importance of due process in Title IX proceedings, without mentioning broader concerns about extrajudicial statements on legal issues that may come before the Court or about issues that are part of current political debate. Our concerns about this phenomenon should not end where our agreement with some particular public statement begins.)

McGinnis argues that the recent "adulatory" treatment of Justice Ginsburg, including not only her recent set of public appearances and friendly interviews but the industry of T-shirts, books, and workout guides--in our society, everything is eventually, and generally instantly, commodified--"raises concerns about the left’s model of a justice and of justice [itself]." The core of his column is that the "Notorious RBG" question is fundamentally about the tendencies of "the left." He concludes:

Other justices on the left side surpass her in other ways. As I have written elsewhere, Elena Kagan is both a fine stylist and the only equal of John Roberts on the current Court when it comes to the smoothness of deploying doctrine.  But Kagan and Breyer are by political science measures not nearly as far to the left as Ginsburg in their voting patterns.  And thus it is hard to avoid the conclusion that the veneration of Justice Ginsburg shows what the left really likes in a Supreme Court justices—reliably left wing results even if they come from an ethically challenged and not otherwise particularly distinguished justice.

As I said, the phenomenon disturbs me too, as does the general tendency toward adoring treatment of judges on the part of too many lawyers and legal academics, often former law clerks imbued with American clerkship culture, a treatment that is almost always accorded to those judges whose views are consistent with the political views of the person engaging in the veneration. Those concerns are heightened when the adoration is not just a one-sided thing in which the object of the celebrity treatment takes no part in it and does not encourage it, but one in which the object rather seems to enjoy and participate in that phenomenon, and/or takes to making general public pronouncements on various issues, which is a common element in modern American celebrity culture.

But I disagree with McGinnis's take, which seems to me to make one major mistake, and also to err more generally in not offering a richer, and less left-targeted, picture of American culture--including the American culture of hero-worship and the increasing tendency to elide the idea of heroism and the status of "celebrity." I should add that this is an adaptation of a Twitter (sorry!) thread that readers encouraged me to turn into a blog post, so doubtless it carries over some of the flaws and tendencies toward generalization of that medium. And I should make clear that I am addressing the "Notorious RBG" phenomenon, and some of Ginsburg's extrajudicial conduct, far more than I am addressing Justice Ginsburg herself, especially in her capacity as a judge, although I think her rash of recent public statements raises fair questions about whether she should either refrain from such conduct and avoid public appearances more generally, or consider leaving the bench. 

First, McGinnis concludes that the adoration of "The Notorious RBG" must be about the left and crude left politics, because Ginsburg has not been an extraordinary justice and certainly is not as good as other, but perhaps less reliably "left," justices. Setting aside any debates on the quality of Ginsburg's work as a justice, I think this is starting point is seriously flawed. It treats the "Notorious RBG" story as beginning once she joins the Court and having little or nothing to do with the whole arc of her professional life. But a major source of the adulation of Ginsburg has to do with what she fought for and achieved before becoming a judge. Thurgood Marshall is similarly treated as a judicial hero, not primarily because of his work on the Court, which even some (or perhaps, albeit quietly, many) legal liberals think of as lackluster, but for his incredible work as a civil rights lawyer and architect of Brown v. Board of Education. Starting the "Notorious RBG" calendar in 1993 ignores all that she did as perhaps the greatest architect and champion in the past 40 or 50 years of women’s legal and constitutional rights.

There’s also little or no cultural or sociological sense in McGinnis's piece of the general American love of hero worship, and the way it leads hero-worshippers to read facts through the lens of their hero worship, emphasizing favorable facts and minimizing or ignoring inconvenient ones. This is a general American (or human) tendency, and it is hardly the sole property of liberals or “the left.” (Personally, I wish people would use terms like "the left" or "the right" far more precisely and selectively, especially when they are treated as nearly synonymous with "liberal" or "progressive" or with "conservative," let alone "Democrat" or "Republican." That's especially true for lawyers and the legal academy, who are generally establishment-oriented and less likely to be truly and interestingly politically radical.) The piece also ignores other relevant and more personal factors, which could be seen either as related to or as independent of the prior factors: She is in her eighties, and continues to speak out passionately on the Court on issues that deeply affect women in particular. Moreover, and on a personal level, for some it may matter that her beloved and widely admired husband passed away in recent years, leaving the Court and her work on it as a major solace. (Or so it may appear from the outside, including outsiders who love and admire her. I cannot say whether she views things in this fashion or not.)

Taking these together, I think the view is something like this: She has long been a hero for women’s rights, predating her time on the Court and continuing today. She is a role model for her achievements and her fierce determination and independence. Given all this, and given the (unfortunate) tendency of Americans to treat one’s status as a hero as generally applicable and almost indefeasible once conferred, she is entitled to do and say more or less what she wants--or, putting it in favorable or adoring terms, to "speak out"--and to sit as long as she cares to. On this view, she has earned such a right, and suggesting otherwise--let alone focusing on her rather than another, male Justice--violates or attacks her earned hero status and all that she did to earn it. (The gender-focus question was especially perceptive and pertinent early on, when some commentators were suggesting that she step down and not saying much about Justice Breyer, but before Ginsburg had engaged in any especially questionable extrajudicial statements. For that reason, it has less bite today, in my view.) Any misbehavior is either irrelevant, or should be treated as an unfair and strategic basis for "attacks" on the justice, or is interpreted through the lens of hero worship, and thus minimized or ignored, or treated as not affecting the bottom line that you don’t attack a hero and that she has earned the near-absolute right to sit as long as it makes her happy.

That’s a more interesting story, in my view, and a more complete one. It is especially important that this story doesn’t depend on making claims about “the left” that treats liberals as unique rather than exhibiting widely shared human tendencies.

None of this, of course, is a defense of RBG or the cult of RBG worship. We should not treat past heroic conduct as conferring some kind of lifetime license to act as one pleases. We should not ignore, simply because one is a hero or seems mentally sharp, the possibility that the hero is affected by age and suffering lapses of judgment as a result. (General intelligence, or even genius, is not synonymous with good judgment in decision-making, especially spur-of-the-moment decision-making.) We should not ignore the possibility that the hero judge--whether Ginsburg or any other judge and regardless of that judge's politics--is treating his or her hero status and lifetime tenure as a license to make improper extrajudicial statements. We should always worry when a hero seems to believe her own publicity or to revel in being worshipped, a common and understandable human tendency that leads to hubris and its consequences.

We should reject the general temptation to treat judges as heroes, and the current tendency of our unfortunate culture to mistake heroism, a form of virtue, with celebrity, a form of trivia and cult of personality, or to combine the two. We should treat unwise or improper conduct the same regardless of whether the person committing it is a hero or a “villain.” We should recognize, especially (and especially today) that offices of honor are defined by unceasing duties and responsibilities rather than being prizes for past achievement. Given that judges can age and suffer lapses in judgment, that they are “votes” as well as people and that none are irreplaceable, we should reject the “sit as long as you like—you’ve earned it” view, and be willing to encourage even heroes to step down when the moment has come. We should not create cults of personality and especially celebrity around judges, both because that is immature behavior and because it may have the perverse effect of injuring the very person it seeks to exalt, by tempting him or her to believe the publicity, treat it as a license rather than a responsibility, and become immured in an epistemic bubble.* And a judge’s family and close friends should serve as a reality check and as candid advisors, including warning against isolation, offering hard criticisms, and encouraging silence or prudence or even retirement, not as fans or an amen corner. Nor, although it is understandable, should they encourage such a person to do anything that will make him or her happy. Judges are already insulated enough; they need people to tell them hard truths and give tough advice. (To be clear, Justice Ginsburg's inner circle may be doing all the right things, for all I know. It is possible that she is receiving excellent advice of this sort from her loved ones and closest advisors and simply disregarding it—or, with all due respect, that her age is affecting her judgment on these questions. Even brilliant people, while remaining intelligent and energetic, can suffer from the effects of age on judgment. In any event, I certainly have no inside knowledge on these questions.)

We should, indeed, resist the lure of hero worship altogether, and resist even more strongly our cultural worship of celebrity as such—especially for judges and other office holders. These are general aretaic questions, applicable to us all, and it’s a mistake to treat these questions of how to live as just another tool in the culture war or as being about “left” versus “right.” They run deeper than that.

* On Twitter, I wrote after this passage, "I think Robert Bork ended up surrounded and insulated by fans in whose eyes he could do no wrong, and that this affected and hurt his disappointing post-judicial writings." A family member wrote to say that I was quite mistaken to think so. I will happily acknowledge that I may indeed be, and that, as with what I say about Justice Ginsburg and the advice she presumably receives from close friends or family, I pretend to no inside knowledge on those factual questions. I do think that two of the most dangerous things that can happen to one's judgment are to be a subject of widespread public scorn or a subject of widespread public adulation, both of which, often working in concert ("my enemies prove how right I am and how vicious they are, and my supporters vindicate my views and encourage me to stick by them; from now on, I will live and work in and among my supporters and away from my critics"), can distort one's independent judgment. But even if I'm right about that, I can't assume that this applies in any individual case unless I have more biographical facts to work with. I do think Bork's post-judicial writings were far from his best. But I was grateful--ultimately--to be brought up short by this criticism.   

Posted by Paul Horwitz on February 25, 2018 at 10:05 AM in Paul Horwitz | Permalink | Comments (6)

Monday, December 11, 2017

Clerkships Are, Or Can Be, Just Jobs. Maybe it's Better That Way.

This fall, I happened to be writing a short law review piece that dealt with clerkship culture. It makes the argument, which I've also made on this site and elsewhere, that American judicial clerkship culture often encourages an adolescent love and loyalty toward the judge one clerks for, and that this is unhealthy and does not help develop a fully mature legal culture. To the extent that many or most law clerks have clerked for federal judges, and many elite law professors have clerked for elite judges, it does not develop a fully mature legal academic culture either. Not everyone agrees with this argument, of course, although it is hardly new and many have made similar arguments. 

The pages of law review tributes to various judges and justices, often written by former clerks who are now law professors, are filled with adoring, sometimes worshipful language. Some of that is understandable. For one thing, the editors are unlikely to solicit or select for publication a tribute that says of one's judge, "[He or she] was just okay," or "It was just a job, although it was a great job." For another, clerkships are part of the culture of elite advancement, ours is a small community that can be quietly punitive, and one does not want to be seen to write disloyally or even especially critically or in a lukewarm fashion about one's judge. And because clerkships are so romanticized, one either absorbs that language and sensibility, or doesn't want to write more blandly, lest one be suspected of having been just a so-so clerk or of having clerked for just a so-so judge. 

What is striking about those tributes, though, is the common language used to describe such clerkships. Many such tributes describe the judge for whom the author clerked not simply as a great boss or mentor, or even as a friend, but in distinctly familial and filial terms. Clerking, in this description, constituted joining a kind of family, and the judge encouraged his or her clerks to think of themselves as part of his or her extended family for life. That is a particular kind of closeness, and describes and encourages a particular kind of relationship to and with one's judge. In other cases, many involving the "familial" judge and often involving judges with a deep sense of political mission or engagement, the description is one of the chambers being part of a team, a team of near-equals and allies pursuing a shared mission: one that is deeply felt, involves more than a generalized term like "justice," and is often defined in part in terms of a sense of other judges on a multi-member court as being adversaries. Again, that kind of model encourages a strong sense of closeness and identity with one's judge. It also encourages a sense of omertà, and a desire not to let down one's "side." It encourages a particular kind of relationship, one that is far more than a mere "job."

Of course, many clerks don't have this kind of experience. Their clerkship is indeed just a job. It might be one of the best jobs one ever has, but it is still just a job. And the judge one works for is clearly one's boss: not one's second father or mother, grandfather or grandmother, or friend, or even necessarily one's mentor (even if one learns and learns well from the judge and the job). The judge is not looking for a second or substitute family; he or she already has a family and doesn't want or need another one. Nor is the judge looking for political allies or teammates on some kind of crusade or mission. Clerks are employees: special employees, perhaps, or especially important employees, but employees just the same. And the judge is "just" one's employer.

I have no idea how common that clerkship experience is. I assume it's quite common. It's consistent with my own experience. But it mostly flies under the radar. It's not the model that gets talked about again and again in the law reviews. It's not the romanticized, rhapsodized description of clerking that so fills the books and articles about clerking, or the breathless descriptions of judges or justices. More often that not, law students are given the romantic description, or hope to have that kind of life-defining (and, in my view, potentially life-long adolescence-encouraging) experience. They don't want their special year, their "elect" year, to be mundane or prosaic or just an especially prestigious and interesting job. Nor do they want to describe it that way.

There was nothing particularly timely about the piece I have been working on, and I didn't intend it to be or much care. But, in the wake of the stories about Judge Kozinski over the past week, it suddenly seems very timely indeed. I don't mean to generalize too quickly or loosely from those accounts to all "family"- or "team"-model clerkships. But in my piece, in describing both the "family" and the "team" model of clerkship, and contrasting it to the plain "job" model of clerkship, I found that I was citing many published articles by or about Judge Kozinski and the clerkship experience. And in at least one of the new accounts about Kozinski, I was struck by two things: 1) a description of the totalizing nature of the experience, one that has been described about some other judges and their clerkships; and 2) the same former clerk's desire for "greater honesty regarding judicial clerkships. Law students are often told in glowing terms that a clerkship will be the best year in their career. They are never told that it might, in fact, be their worst—and that if it is their worst, they may be compelled to lie to others in the name of loyalty to their judge."

Perhaps it's time to rethink the romanticization of clerkships that involve familial or filial relationships with one's judge, and the endless praise of judges who encourage such relationships rather than close but professional and workaday relationships. Maybe there's more to be said--certainly more than is generally said publicly--in favor of clerkships that are "just" jobs, that feel like "just" jobs, and in which the judge understands and makes it clear that the clerkship is indeed just a job, and the judge is indeed just another employer. It's a lot easier to criticize, refuse, or stand up to a judge who feels like a simple employer, not a filial figure, or a teammate and collaborator in a deeply charged and important "mission." I'm sure that many such relationships and experiences are indeed wonderful. But they are also rife with the potential for abuse of power, in a way that may discourage clerks from saying or doing much about it. And our culture of glowing tributes, displays of filial loyalty, and lifelong championing of one's former judge may not help either.

Maybe there is much more to be said in favor of the clerkship that is just a job and is treated like one, and the judge who is just an employer--and who knows it, and (as a professional should) acts like it. Perhaps that's better than an extreme in which one's clerkship might be "the best year in [one's] career," or "their worst," and in which, if it's the latter, multiple social and other forces discourage one from saying so. There's a lot to be said for clerkships that are neither the best nor the worst year, but are just jobs; and for judges who don't constitute one's closest relationship, for good or ill, but are just one's boss.

Posted by Paul Horwitz on December 11, 2017 at 09:58 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, November 01, 2017

"Breaking the News": A Review of Franklin Foer's "World Without Mind"

Howard does most of the writing First Amendment writing around here. But I certainly have an interest in the subject, including speech and press issues, quite apart from my interest in law and religion. Some of that has to do with my very brief time in the trenches as a reporter and my time as a student at Columbia's journalism school, which at least back then was a very practically oriented program. Although I think I have been more or less assimilated into the academy, and certainly take seriously (possibly self-seriously) the importance of "academicizing" one's discussion of issues within one's field (to borrow a term from Stanley Fish) when writing as an academic or taking advantage of one's academic title in other forums, a small part of my brain remains that of a journalist, inculcated with its norms and worldview and concerned with the well-being and integrity of that institution. My views on the state of the modern news media and contemporary journalism are not at all positive. On the other hand, journalists operate in a very different and difficult environment today; I'm glad I had my own brief time as a reporter just before the profession was irreparably altered by the Internet.

That is a long way of prefacing a link to this review of Franklin Foer's new book, World Without Mind: The Existential Threat of Big Tech. Foer's primary subject is the harmful effect of the "Big Tech" companies, and their effect on the profession of journalism in particular. Thus, my review provides an occasion to offer some of my own views on what I think is wrong with much of modern journalism, including some major institutions such as the New York Times and the Washington Post, not to mention Foer's old stomping ground, The New Republic. And it's about something more than that: it's about how to interact with a culture that is obsessed with the ephemeral and to, as Foer puts it, "take back the mind."

I argue that "Taking back journalism—rescuing it from algorithms, consultants, opinionated Twitter feeds by reporters, and the obsession with page hits, and returning it to a state of serious, aggressive but disinterested professionalism—is a good in itself, a good for democracy, and a necessary start." But--and I acknowledge the tension here, which is one I experience personally--even that were to happen, I'm not at all sure it's a good thing to obsess with and attempt to keep up with the 24-hour news cycle, or even with, say, a 6- or 12-hour news cycle. That's true, I think even if one mostly avoids the trash and sticks to good writers or publications. There are excellent and even urgent reasons to make journalism better. But there are also very good reasons for cultivating one's own mind away from the noise, and focusing on more lasting and meaningful reading and thinking altogether. That doesn't necessarily mean disengaging from current events. But it might mean that wise and meaningful engagement with current events requires something other than a relentless urge to know and comment on the most up-to-the-minute developments.

A postscript: Coincidentally, Eric Segall today has a post about writing about law in an age in which there is a vast amount of both scholarship and "news" coming at an ever-increasing pace. On the former point, one could do worse than to read the first page of this paper by Mark Tushnet, and to be reminded that much of what purports to be new and improved, or just "novel," in our field is neither. On the latter, he writes:

The other major change for legal scholars is the all-too-real news cycle problem, which is a consideration that barely existed twenty years ago. To be heard over the din today, not only does one need to be smart at both substance and marketing, but one needs to be fast, very very fast. That skill is quite different than being comprehensive, careful, and thoughtful. It used to be that one had at least a year from a the date of a major Supreme Court case to contribute to the scholarly discussion of that case. The only real place to put the case in perspective was the law reviews. Very few professors wrote op-eds or magazine pieces. Today, a week is probably too long.

I have no particular objection from an inside perspective to any of what Segall writes here. It makes a lot of descriptive and practical sense. From a more detached or outside perspective, however, I think there is a lot for thoughtful people to question about these statements. Should the news cycle be a "consideration" for scholars? Should one desire particularly to be "heard over the din?" Why, exactly? What effect on scholars' work, and on their deeper sensibilities and integrity as scholars, might there be in getting "smart at . . . marketing" or "very, very fast?" (Academics these days argue routinely and mechanically that the "corporatization of the university" has had a deleterious effect on the academy and academic work. They like such sweeping arguments but are decidedly less keen on focusing on themselves. If they think that's true at a wholesale level, why wouldn't they be moved to reflect on the individual effects of a marketing-driven approach on their own work?)  If a week is "probably too long" to "contribute to the scholarly discussion" of a case, what does that suggest about the nature or quality of the "scholarly" discussion that takes place within that seven-day period? What's especially scholarly, or even useful, about a "hot take?" Academics often argue in response to such concerns in one of two ways. They offer a dose of realism about "the way things are," which doesn't really answer any of those normative questions. Or they argue that what they do as marketers, entrepreneurs, public commentators, and chasers of latest developments is essentially separate from their longer and larger academic work and has no effect on it, or only a positive one. I'm not at all convinced that's true.    

Again, here's the link to my review. There is surely much to disagree with in it, but I hope you enjoy reading it. I certainly enjoyed writing it.   

 

Posted by Paul Horwitz on November 1, 2017 at 12:11 PM in Paul Horwitz | Permalink

Monday, October 02, 2017

Thurman Arnold and Edward Corwin on the Supreme Court

As the United States Supreme Court gets ready to open another Term, I thought readers would enjoy this quote from Voltaire and the Cowboy: The Letters of Thurman Arnold. No special political or other message is intended here: It's just a terrific quote. It comes from a letter in which Arnold, then a Yale Law professor who had taken a leave of absence from his teaching job to go work for the Solicitor General's office, is describing his first oral argument in the Supreme Court. He is sitting with Edward Corwin, the well-known constitutional law scholar:

Professor Corwin of Princeton who is retained to consult with me on the social security case brief was with me when court opened the other day. He says that they ought to change the invocation from "God save the Government of the United States and this Honorable Court", to "God save the Government of the United States or this Honorable Court." He insists that God can't possibly do both, and he should not be asked even to try. He should be given his choice and let it go at that.

As a side note, Corwin gets the invocation wrong: It is actually "God save the United States and this Honorable Court." But we should not let a good, arguably insightful joke or anecdote get hung up on a technicality.  

Posted by Paul Horwitz on October 2, 2017 at 10:02 AM in Paul Horwitz | Permalink | Comments (0)

Sunday, October 01, 2017

An Absurdly Long Twitter Discussion of the Laurie Goodstein/NYT Story on Amy Barrett, and its Defensive Defenses

The New York Times on Thursday published a piece by Laurie Goodstein about religion and the Amy Barrett nomination, with the awfully vague headline (not written by Goodstein, although it is a fair description of the piece) "Some Worry About Judicial Nominee's Ties to a Religious Group." The story is unclear on whether these "some people" suggested the piece to Goodstein, and if so which "some people" did so. It quotes two law professors, and perhaps one of them suggested the story to her, but reporters go to law professors all the time for the necessary ventriloquism once they have gotten the idea for a story. It also links to a report by the Alliance for Justice, which one assumes does try to feed the occasional story to a reporter and is a more likely suspect. Or perhaps it was a bank shot: interest group suggests story to congressional staffer, who then suggests story to reporter. Or maybe it was just an inspired piece of independent reportorial digging. The gist of the story is twofold: 1) Barrett belongs to a lay Christian group called People of Praise, whose ideas and practices are, to use the standard contemporary language of plausibly deniable accusation, "troubling." 2) Barrett didn't disclose her membership in the group to the Judiciary Committee, "though many nominees" have disclosed similar memberships "in the past."

I hesitated before writing critically about this story at first, despite my interest in these issues, because I thought that point number 2, if true, would indeed be "troubling." The rest of the story was, with respect, weak at best. It certainly did not say anything more about how Barrett would perform as a judge. It quoted one professor suggesting that "These groups can become so absorbing that it’s difficult for a person to retain individual judgment," but that is a rather general statement and not grounds enough for serious concern. (And I wonder how it applies to other groups in general.) Moreover, it treated as significant (and, I think, as a foundation for that law professor quote) the apparent fact that "Members of the group swear a lifelong oath of loyalty, called a covenant, to one another." As many students of religion pointed out after the story was published, oaths and vows of this sort are commonplace within all sorts of religious communities; there is nothing terribly unusual or ominous about that. And the story essentially swallowed whole the AFJ line about Barrett's co-authored piece, now some 20 years old, on Catholic judges and recusal in death penalty cases, a line that many law professors have already suggested misreads that article. It added the AFJ's description of Barrett as having "backed away from that position," which misreads both the piece and Barrett's testimony. The piece ended with a classic suspicion-raising question by another law professor: "I’m concerned that this was not sufficiently transparent . . . . We have to disclose everything from the Elks Club to the alumni associations we belong to — why didn’t she disclose this?" 

My hesitation was unwarranted. The story does not say that Barrett was required to disclose her association with the group, but is worded in such a way that the average reader might so conclude, a reading that is enforced by the professorial quote that closes the piece. But as Ed Whelan has pointed out, "[T]he Senate questionnaire, presumably because of concerns about improper inquiry into a nominee’s religious beliefs (or lack thereof), doesn’t ask about membership in religious organizations. . . . So the simple answer to the climactic question...—'why didn’t she disclose this [membership]?'—is that the questionnaire didn’t ask for it." So the one thing in the story that I thought gave grounds for concern turned out to be ungrounded. And the rest of the story, as I have already suggested, was deeply flawed. It makes it hard to read the story as anything other than a successful attempt, perhaps by an interest group, to plant a flawed critical story about a nominee in a widely read and influential newspaper. If there was a story here, it was probably that, and Goodstein could and should have written about who, if anyone, fed her the story, since that information would have given readers more information with which to judge the story and more of an education about the interplay between interest group tactics and the judicial confirmation process. As a general rule, however, reporters prefer not so say much about these mechanics in their pieces, not least because these groups are useful sources for stories and may insist as a condition of feeding the story that their fingerprints are kept off the story. Reporters should strenuously resist such conditions. 

My Prawfs co-blogger Rick has a Mirror of Justice post criticizing the story. But that's not the end of the matter. Lots of people criticized the story, including many law professors who are interested in religion or law and religion, and who have various positions on that subject and come from various places on the political spectrum. On Twitter, Goodstein defended the story, starting with the line, "Seems my piece struck a chord, given defensive reaction by the nominee's allies on Twitter." As I said, however, it wasn't just "the nominee's allies" who criticized the piece. And their reaction was not "defensive:" it was critical, because they thought it was a poor piece. "Striking a chord," of course, can mean a reporter got something right; but it can also mean that the piece provoked reactions because it was flawed--as her piece in fact was. And, rather oddly, a fellow religion reporter, Daniel Burke of CNN, rode to Goodstein's defense, writing, "Looks like a well-coordinated response" to the piece, naming the Federalist Society as the presumed coordinator. This being Twitter, debate ensued.

Both the piece and the defenses of the piece raised various serious concerns for me, both on the substance and on the general issue of how reporters should or shouldn't use their Twitter feeds. For my sins, I have become more active on Twitter lately. And here is a Storified and collection of my slightly lengthy thread of Twitter posts responding to the debate. It would be long even as a blog post; as a Twitter response, it's Proustian. Clearly, the ballyhooed impending move to a 280-character length for tweets wouldn't have done much to help in this case. But I had a number of thoughts on the debate, wanted to get things right, and wanted to do so in the medium in which the debate took place. The gist of my response is roughly this:

1) Given the nature of Twitter and of contemporary politics and public discourse, doubtless there were plenty of hostile and unbalanced responses to the story. But given the number and variety of people who offered serious and well-grounded critical responses to the piece--especially those interested in law, religion, and the complex relationship between nominees' faith and their fitness for the bench--it's not enough to characterize the critical response to Goodstein's piece as "defensive" or as being about support for Barrett. Many of us just thought it was a poor story--and for good reasons, as I have written above. In particular, once the only genuinely troubling charge raised by the story--the non-disclosure angle--is shown to be dubious, all that remains is a repetition of the errors that have already been made in coverage of this nomination, along with questions about the religious group grounded in suppositions--like the idea that there is something unusual or troubling about communal vows of fealty within religious groups--about which a religion reporter, of all people, should know better. I am not suggesting Goodstein had no right to report and publish the story, or even to have stories fed to her by interest groups (if this is what happened). But it could have been reported much better, shown more knowledge about religion itself, done more to describe the genesis of the story and any interest group involvement in it, and avoided the suggestive and ominous framing and language that suffuses the piece. 

2) Burke's defensive attack on criticisms of the piece was both poor in substance and odd as a general matter. It was odd because a religion reporter need not be defensive on behalf of a colleague or competitor, and should have examined the substance of the piece, which I have suggested was flawed, instead of engaging in blanket accusations about the story's critics. And it was doubly odd because, ideally, when writing on Twitter (or anywhere else), a reporter should either stick to his or her area of expertise or do enough serious reporting to justify any accusations outside that expertise. I can't speak for everything that everyone said in response to Goodstein's story--who could?--but it is clear that many of us who raised serious criticisms of the story were not engaging in a "coordinated" response, whether led by the Federalist Society or by anyone else. Burke's defense of his charge of a coordinated response is weak and in some cases erroneous. And despite its general knowing (and cliched) talk about the Federalist Society as "the real power players in DC" (emphasis added: "the?" Aren't there others?), it betrays little knowledge of how that group actually functions. It is true that there are executives within the Federalist Society who are playing a role in suggesting judicial nominees to this administration, just as other interest groups and "power players" do so in every administration, Democratic or Republican. And it is also true--unfortunately so, in my view--that there are some FedSoc executives who enjoy engaging in DC politics, and use their salaried positions at the Federalist Society as a useful and comfortable perch from which to do so. But, as with the American Constitution Society (which also has some executives who enjoy engaging in "power politics," again unfortunately as far as I am concerned), the ground-level experience of members of those groups, including law professors, is far more mundane than that. When I, for one, join either group (I have been a member of both groups at various times, depending on how I felt about paying dues in a given year; although I don't always do so, I prefer to join both groups or neither at any given time), it has more to do with wanting to receive the groups' publications than with their views. I don't get instructions or suggestions from either group, and if I did I would ignore them. Serious critics of the Federalist Society understand the difference between what a few of its executives in DC get up to and how the group as a whole operates, and the minimal influence it has on many or most of its members. There are things one may dislike or worry about with respect to either group--personally, I am not at all crazy about the elite networking aspects of either group, or about judges or hiring committees or anyone else using membership as a proxy or as a qualification or disqualification for clerkships, teaching jobs, judicial nominations, and such--but one ought to have some understanding of those groups rather than lazily treating them as bugaboos. Burke is a religion reporter; there's no reason for Burke to know any of this. But he should have done the work of reporting on it before launching accusations. Failing some serious reporting, he could and should have remained silent, or focused on the substance of Goodstein's story alone.

3) There is a broader question here that troubles me greatly: How, if at all, should non-opinion reporters (or reporters for partisan news outlets, or opinion columnists for that matter) use their Twitter feeds? I was a journalist, very briefly, and happily before the rise of social media and the current desperate straits of major and minor media institutions. I remain interested in the profession and its troubles. It seems clear to me, both from their conduct and from the various newsroom memos floating around and from media reporting on the subject, that reporters these days are positively encouraged to have Twitter feeds, and possibly encouraged to make those feeds exciting or controversial, rather than simply using them to link without commentary to their published work. Much of that pressure comes not just from editors, but from people on the other side of journalism's church-state divide: publishers, marketing departments, and various business-side news industry "consultants." It's clear that even many "straight" news reporters feel free to opine freely on Twitter, both within and beyond their actual expertise and with or without doing the reporting work to support their opinions. I can understand the "why" of the matter, which includes media institutions' desperate desire to survive in a fragmented, social-media-heavy environment, in part by seeking "eyeballs" and attention. But I think these tendencies encourage serious departures from journalistic professionalism and ethics and, for the sake of short-term gains, end up eroding trust in those institutions and imperiling them and their practices in the long run. I appreciate that my brief time in the profession came long before the rise of social media. But when I was doing things, the norms of the profession encouraged reporters to ignore or resist pressures coming from the non-editorial side of the business, to avoid public opining, and to stick to their knitting. If I had been told back then that in addition to reporting and writing for my paper, I would be expected to trawl for eyeballs by starting a Twitter feed and keeping it "interesting," and especially if that pressure came from someone on the non-editorial side of the organization, I would have ignored the instruction and possibly told that person to go to hell. Some of the most successful and prominent journalists on Twitter and other social media, including those whose positions at major media institutions mean they have some power to resist such pressures, have clearly chosen a different path. I think it's the wrong path. As I write in my collection of Twitter posts:

Individual journalists in non-opinion positions (and those with opinion positions as well) urgently need to seriously rethink the nature of their use of Twitter. They need to resist far more strenuously the temptations and seductions of having a social media "platform." They need to push back far more against editors, publishers, "consultants," marketing and business departments, newsroom memos, and peer pressure urging them to do and say more than they should on social media.

Read it all--if you have a couple of hours to spare. (I should note that whatever substantive problems it has, my collection of Tweets has one or two other errors. I refer "John Leo" rather than "Leonard Leo," for example. Mea culpa. I am duly aware that if I had written the screed on the blog rather than Twitter, I would have been able to correct such errors. And I'm aware that the piece's length violates every norm of Twitter, although I'm very happy to violate the norms of Twitter--a medium that I despise, despite my increasing use of it. That I use Twitter at all is, I hope, a matter of weakness, not hypocrisy.)  

 

Posted by Paul Horwitz on October 1, 2017 at 09:01 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, September 20, 2017

The Obvious Irony of Chemerinsky on Barrett and Feinstein

In the circles in which people comment, and then comment on commentary, and so on, and in which some of these writers treat this activity as as an earnest, important, and influential form of politics, as opposed to a conventional practice or habit with no strong justification outside the practice itself, Erwin Chemerinsky's latest op-ed (as of yesterday, anyway) will get some attention. It defends Senator Dianne Feinstein for having questioned Seventh Circuit nominee Amy Barrett about her religious beliefs and/or about an article of which she was effectively the junior co-author some 20 years ago. I wrote about that questioning here.

The problem is not that Chemerinsky is wrong as such, in broad terms. As I said in my post and have written elsewhere, in my view not all questions about a nominee's religion or religious beliefs and how they apply to the performance of an office are wrong or violations of the Religious Test Clause. The problem is that beyond this very general point--one that is shared by some but not all conservatives, and certainly many serious conservative commentators--the op-ed is vague and unhelpful, does not get to the heart of the question, and is possibly disingenuous. The proposition that it can be valid and permissible to question a nominee about his or her religion in a relevant way does not affect the question whether particular questions are fair, legitimate, or helpful. Chemerinsky writes that criticisms of Feinstein have "mischaracterized her questions." Doubtless some have: It's a big and unimpressive Internet. But anyone who has read John Garvey and Barrett's article and Feinstein's questions, as well as the changeable defenses Feinstein later offered for her line of inquiry, should understand perfectly well that the primary problem is that Feinstein's questions mischaracterized the article. Nor do Chemerinsky and some other defenders of Feinstein recognize adequately, if at all, that even if there was some valid basis for asking questions of some sort, it is possible to do so in a way that explores the question productively without discussing religion much at all, let alone making such a hash of it. Feinstein and some of her colleagues did make a hash of it. The "dogma" line will quite rightly be hung around her neck for the remainder of her career. Defending her right to question Barrett on these topics does not demand a defense of the particular questions she asked or the language she used. It certainly does not require one to ignore the mischaracterization of Barrett's article, a mischaracterization which after all served as a primary basis for asking the questions in the first place. 

I think it is pretty clear that the real raison d'être for Chemerinsky's op-ed is its last paragraph, and especially its last sentence: "The attack on Feinstein is misguided because it mischaracterizes her questions and ignores the basis for them. I fear that it is a smoke screen by the right to take attention away from a very conservative nominee that Trump is trying to put on the federal appeals court bench."

I am not here to defend all the critics of Feinstein, or to deny the possibility that some of these critics were motivated--by politics, by money, or what have you--in their criticisms, or that for some of them the underlying concern was to get Barrett confirmed. Given the nature of politics, that is all but certain, although it is also true that many people were genuinely offended by Feinstein's questions and especially her language. The irony, of course, is that, especially in the absence of a definition for a phrase like "very conservative," it seems more likely to me that almost the precise opposite of this statement is closer to the truth. Barrett is dangerous to her opponents not because she is "very conservative," but because she is highly confirmable. More than that, she is potentially confirmable for an eventual Supreme Court seat. And she is confirmable precisely because she is not easily characterized as "very conservative," and certainly not as an extremist, a thoughtless conservative, a careless and irresponsible ideologically oriented lawyer or legal academic, etc.

If senators allowed themselves to openly and publicly reject nominees on the basis that they don't want smart and responsible people who meet conventional criteria for judicial appointment but are nonetheless clearly (or possibly) "conservative," or "liberal," on the bench at all, we would need fewer smoke screens from either side. It would not be necessary to paint confirmable nominees as "extremists" or "very conservative" or "extremely liberal" or anything of the sort. The results might or might not be better, but the process would be more efficient and more honest. And with that honesty would come greater and more direct political accountability for the senators themselves. (In the case of Merrick Garland, for instance, Republican senators could have said, "We have the right to block this excellent nomination and are going to do so, period," without stretching for dubious justifications and historical precedents and muddying and harming public and political discourse. Their political fortunes would stand or fall on the blunt assertion of a right to block Garland, a clearly qualified liberal nominee, and without the defense of questionable justifications for doing so.) 

As it is, current convention demands that we act as if reasonable and conventionally excellent nominees should be confirmed almost as a matter of right. That in turn incentivizes senators, commentators, and--not least--groups that depend on extreme claims of urgency or emergency to fundraise and justify their continued existence to paint many excellent nominees as "extreme," "outside the mainstream," and so on, or to turn molehills into mountainous disqualifying "scandals, which also involves lengthening the duration of the nomination process as they dig through every jot and tittle for a usable "controversy." It's a lousy system, in my view. But the irony of Chemerinsky's last paragraph remains. The problem with the Barrett nomination, and the reason for Feinstein's questions, some of the criticisms for those questions (which were also fairly subject to honest criticism on the merits), and Chemerinsky's own defense of Feinstein is not that Barrett is a "very conservative" nominee and some kind of symptom of Trumpism. On the contrary, it is that Barrett may be a conservative and would count as a fine and confirmable nominee by any president, for this or a "higher" judicial office. If there is a "smoke screen" involved, it is in pretending otherwise. 

 

Posted by Paul Horwitz on September 20, 2017 at 10:44 AM in Paul Horwitz | Permalink | Comments (14)

Friday, September 15, 2017

Conference at Marquette Law: The Ethics of Legal Scholarship

I write today from Marquette Law School in Milwaukee. (Milwaukee's airport, incidentally, contains Renaissance Books, easily the best bookstore in any airport I have ever seen. Milwaukee: Come for the airport bookstore, stay for the actual city!) Thanks to the hospitality of the school and to organizers Chad Oldfather and Carissa Hessick (I am a kind of junior co-organizer to them), we are holding a two-day conference called "The Ethics of Legal Scholarship." 

The issues, obviously, are plentiful, from what and how one writes to the substance of the scholarship to the publication process. The framework for the conference is a little unusual. The Marquette Law School is generously going to publish the symposium results. And we hope to lead off the symposium issue with what one might call a Draft Restatement of the Ethics of Legal Scholarship: A general set of principles, norms, and rules that do or should describe what constitutes ethical conduct for and in legal scholarship (and perhaps, although this will be a matter of discussion, what ethical norms ought to apply to "non-scholarly" work, like op-eds or amicus briefs, that might not constitute "scholarship" but are written under the title and ostensible authority of the scholar). That's the plan; whether it will happen or not remains to be seen. And having some kind of Restatement does not preclude the participants from publishing separate concurrences, dissents, or comments on that document. Indeed, the "admission ticket" papers already produced by the conferees are excellent and varied in their views and approaches.

This is a subject of great interest to legal academics and (some) others. I think it's fair to say that in conversation, law professors agree widely that there are ongoing problems and issues with legal scholarship, some or many of which could be characterized as professional "ethical" problems. It's also fair to say, I think, that those private conversations are much more candid, and often much more cynical, than the public discussions. There are understandable and perhaps forgivable reasons for that split between public and private discussions, but the more of a gap there is between the state of the public and private conversations, the more it demands to be addressed publicly and candidly at some point.

I'm excited about this conference, which has been in the making for some two or three years. I'm grateful to Chad and Carissa for organizing it, to Dean Joe Kearney for his generosity in having Marquette host it, to the Marquette Law Review for its interest in supporting and publishing the symposium, to the Marquette staff, and not least to the participants themselves.

I'm leaving the comments open. Obviously, this is the kind of post that lends itself to unserious responses, or responses that are perfectly serious but obvious or unhelpful. "Oxymoron," "contradiction in terms," things of this sort: they could end up being true, but we're all familiar with them already, and we've already resumed the conference room for the next couple of days. For those who thing the conference and its Restatement approach already assume too much or are undertaking an impossible task or the wrong task, let me reassure you that one of the conference participants is Stanley Fish, so I'm sure there will be opportunities for general skeptical questions and the throwing of assorted bombs.

But I, or we, would be grateful for comments offering more specific ideas and proposals. For instance, one might expect comments: 1) identifying ethical problems in legal scholarship that are given too little attention; 2) identifying the most important or urgent ethical problems in legal scholarship, even if they are already given attention; 3) asking questions about the definition of "scholarship" or "legal scholarship," what counts as legal scholarship, and what kinds of norms, if any, should apply to writing by law professors as law professors but outside scholarly forums, such as tweets, blog posts, "law professors' letters," op-eds, and so on; 4) proposing specific ethical norms for legal scholarship, especially those that might, as it were, be part of a Restatement or code of the ethics of legal scholarship; and 5) raising general questions, positive or critical, about what the conference should try to achieve or whether it is possible to achieve anything at all. Your contributions and suggestions and questions are appreciated. As far as I can while the conference is ongoing, I'll keep an eye on them and bring them up at the conference where they are helpful. I may offer a couple of posts along the way, or after the fact, summarizing particular aspects of the conference and the discussion.     

 

Posted by Paul Horwitz on September 15, 2017 at 11:05 AM in Paul Horwitz | Permalink | Comments (25)

Thursday, September 07, 2017

Again With the Religious Test Question

There were some real gems in the questions and statements of senators at yesterday's Senate Judiciary Committee hearing for Seventh Circuit nominee Amy Coney Barrett. (Full disclosure: I was a visitor at Notre Dame for one semester some 11 years ago. I did not see much of Barrett, but I believe I socialized with her a couple of times.) As usual, they concerned religion and its relationship to judging. I must acknowledge up front that I am cobbling together the quotes from various sources, some of them from distinctly partisan media outlets. I would have preferred to draw them from ostensibly nonpartisan outlets, or obviously ideologically tilted outlets that are still treated as reliable news sources by the intelligentsia, but I did not find any reports in a (cursory) search of those outlets, nor have I found a transcript. In particular, I draw on a story in the Daily Caller, despite my general distaste for that paper. I am interested in the statements, of course, not the sources. I worked with what I could find. (For background purposes, here is a story from The Hill.) If you have links to a transcript or to other reporting on the hearing, you are welcome to provide them in the comments. 

1) Senator Dianne Feinstein questioned Barrett on the 19-year-old article "Catholic Judges in Capital Cases," on which Barrett was listed as a co-author with John Garvey; she assisted Garvey with the article when she was a third-year law student. The focus of the article is, as the title suggests, the death penalty. Feinstein's questions appears to have had more to do with abortion, although I would want to review a full transcript to see whether that is entirely accurate. Speaking about that and other statements by Barrett, Feinstein said in a kind of awkward, Yoda-like fashion, "When you read your speeches, the conclusion one draws is that the dogma lives loudly within you. And that’s of concern when you come to big issues that large numbers of people have fought for for years in this country."   

2) Senator Dick Durbin questioned Garvey (and Barrett's) use of the phrase "orthodox Catholics" in the article. (The phrase, incidentally, is generally used in the article to refer specifically to federal judges.) The report puts it this way: "Senate Minority Whip Dick Durbin of Illinois took issue with Barrett’s use of the term 'orthodox Catholics' as it appears in her article, to the extent that it brands Catholics who do not hold certain positions on capital punishment or abortion as heretical. [para.] 'Do you consider yourself an orthodox Catholic?' Durbin asked." Durbin later offered this explanation for his question. 

Speaking after the hearing, the senator — himself a Catholic — told The Daily Caller News Foundation that Barrett has written at length about the role of faith in public life, which warrants questions about her views.

“I prefaced my remarks by saying that going into a person’s religion is not the right thing to do in every circumstance,” he told TheDCNF. “But she’s been outspoken. As a law school professor at Notre Dame she has taken on the tough challenge of how a person with strong religious beliefs becomes a judge and looks at American law.”

“So I think she has fashioned herself somewhat of an expert and I didn’t feel uncomfortable asking that question,” Durbin added.

As usual, some of Barrett's defenders on and off the Senate raised the Religious Test Clause of Article VI of the Constitution.

As I have written before, I think the best reading of the legal application of that clause is narrow. (In looking at the abstract for this article, I note with shame that I used the strategic "first article" trope. Mea culpa. People do foolish things when they're young.) The paradigm case the clause addresses involves various English test acts that required putative office-holders, among others, to avow or disavow particular religious beliefs, under oath, as a condition of entry into that office. Insofar as such statements under oath were taken seriously as a religious matter, these test acts were particularly significant. For the most part, either that Clause was a success in eliminating this problem, or social and political changes rendered it less important. (It is nice to see that various legal commentators are now taking the oath clauses of the Constitution more seriously, although I'm not sure they're doing an especially good job of it, or that they are doing so non-selectively, or that those who have argued that the oath clauses are judicially enforceable are right.)

For the reasons I've offered in the article linked to above and elsewhere, I don't think it's a viable rule, or one required by the Religious Test Clause, that nominees can't be questioned, or even selected or opposed, based on their religion. To quote from the abstract, "There are many plausible reasons why a President or Senator might validly inquire into the faith, or religiously derived beliefs, of a nominee." If, for example, a nominee for head of the EPA has stated a religious belief that the world will come to an end in precisely six years, and opined that the imminence of that event means we should use up all our natural resources now and not bother conserving them for the future, that is certainly a valid subject of questioning, and of opposition. There are more current and potentially controversial possibilities. Some broad-brush critics of Islam have argued that a correct reading of the Koran suggests that the faithful or, to use an apparently problematic term, "orthodox" Muslim may lie to non-Muslims. I will not bother citing either those assertions or the many arguments against them. It is evident in any case that it is not an accurate empirical account of how most Western Muslims generally understand or practice their faith. But if a Muslim nominee had publicly asserted a belief that Muslims can and should lie to non-Muslims in order to advance the faith, including lying for purposes of achieving the political supremacy of Islam in the United States, it is hard to believe that the Test Clause would utterly preclude questioning the nominee about this statement or even voting against him or her. The question might be ignorant and offensive, but not, I believe, unconstitutional.

I offer two or three observations about the latest kerfuffle. I generally do not favor expanding the legal operation of the Religious Test Clause by analogy or by reasoning from some ostensible underlying "principle" behind it. But nothing prevents us from questioning and criticizing questions of the sort asked yesterday, as what we might call a matter of "constitutional etiquette" rather than constitutional law. Both the senatorial statements quoted above are excellent targets of criticism.

Let us give a highly charitable reading to Feinstein's Yoda-like quote and assume that she means "dogma" as a term of art and without any intention of triggering the suspicion and hostility that the word seems to evoke for some unlettered individuals. (If so, it's hard, it seems to me, to square it with Senator Durbin's complaint, but that's a matter for the two of them to argue, I suppose.) I can well understand why Catholics and others might take such language less charitably, and in an age in which so many phrases are accused of being "dog whistles," this statement seems like a strong candidate for the "dog whistle" accusation. But I am generally chary of "dog whistle" accusations, and in any event want to be charitable here.

The question is still unhelpful enough that it ends up being doing more to cast suspicion on Catholic nominees generally than to illuminate anything important about this nominee. What one might reasonably want to know is whether, when, and how often a judicial nominee might consider herself obliged to recuse in cases, for whatever reason. It is possible to ask that question in a way that explicitly mentions religion, but with great care and sensitivity and attention to the various relevant nuances, including an awareness that we are multiple and not single selves, that we negotiate the relationship between our beliefs and the world in a complicated way, and that how even believers in a "dogma" actually carry out their faith in a particular role is equally complicated. But history suggests it's hard to do that well, and that few senators are capable of it. It's also possible to ask the question in a barer, non-religion-specific way, asking the nominee whether she can carry out her duties as a judge and decide cases impartially and leave herself open to different arguments and outcomes, and whether she will recuse in cases where she finds she cannot. It is likely that one will receive a boilerplate assurance from the nominee, although it is conceivable that the nominee will offer a fuller, more serious answer to the question. And one can still disbelieve the answer and vote against that nominee no matter her assurances. But the question itself is probably better asked in a simpler, non-religiously-oriented way, and a reasonable senator should not discount the very real likelihood that the nominee's answer that she will judge fairly and impartially is accurate, whatever the senator thinks is the nominee's "dogma" and its relevance to her performance in office. (I leave to one side the question of what we would consider necessary grounds for recusal in particular cases, and whether, for instance, we should approach with equal suspicion any nominee who has spent years working with deep conviction for a particular side of an important cause. I could imagine cases where the public statements of a pro-choice advocate would be so strong and categorical that one might question the ability of that nominee to judge such cases impartially. I could imagine a reasonable, although not necessarily correct, decision to vote against such a nominee. But I would hate to turn that into a blanket conclusion that anyone who has been an advocate on particular issues is unfit for judicial or other governmental office.)      

Durbin's question was also silly, if not offensive. I actually don't take issue with much that he said after the hearing, although his post-hearing statement was not without its problems. Being the junior co-author of a 20-year-old piece is not much by way of fashioning oneself as "somewhat of an expert." Treating being "outspoken" as a trigger for such questions is not ridiculous, but it has troubling effects, encouraging people to bracket their statements about or witnessing of their faith and treat religions as a private matter, the kind of thing you do on Sunday or at home, preferably in a closet or underground bunker, and ignore or conceal the rest of the time. And while he is not wrong, in my view, that "going into a person's religion is not the right thing to do in every circumstance," it raises questions about when he thinks it is the right or wrong thing to do and whether that approach is fair and consistent or partisan and opportunistic. Still, given what I've said above I am fine, over all, with what he said after the hearing.

The question at the hearing is a different matter. It may be less significant than Feinstein's question, but it is also less related to his actual task, and thus more objectionable. Durbin may take issue personally with some Catholics' insistence that there is such a thing as orthodoxy in the faith, and (although I don't know or have any reason to believe that this is Barrett's view) that it is better to be orthodox than heterodox. But that is a religious concern, not a concern about the fitness for office of a nominee. Pace Senator Sanders, religious believers are allowed to think that some fellow practitioners are heretical or unsound in their beliefs and practices. Other religious believers are allowed to object or take offense to this. But all this has little if anything to do with the reason for the hearing, and almost everything to do with an intra-faith dispute. Asking someone under oath whether they are an "orthodox Catholic," in the context of an objection to a possible religious belief that there are correct answers to certain questions within the faith, is pretty darn close to the core concept of a test oath, even if I think it is better to criticize the question in terms of constitutional etiquette rather than constitutional law.

As a sidebar, I should note that Durbin's question was also, not to put too fine a point on it, kind of dumb and unfair. Footnote 8 of the Garvey/Barrett article--which is about capital punishment, remember--defines "orthodox Catholic" very carefully to mean "simply one who holds as correct the teaching of the church's magisterium about capital punishment." "Above all," the footnote emphasizes, "we do not with to imply that one's orthodoxy (or heterodoxy) with regard to this point of doctrine entails anything about the soundness of one's judgment or religious behavior in other areas." It's not very fair, to say the least, to "take issue" with the use of a phrase that is carefully and explicitly defined precisely to avoid making any judgments about the sincerity or soundness of disagreement among Catholics on various issues of faith and doctrine. Incidentally, given that definition, Durbin could simply have asked Barrett, "Do you believe capital punishment is morally wrong under particular circumstances? And if so, can you judge such cases fairly?"

As a final observation, I make no claims of actual animus against Catholics, or "orthodox Catholics," whether defined correctly in the context of that article or otherwise, on the part of either Feinstein or Durbin. Statements--especially statements by candidates and office-holders--can have various motivations, meanings, readings, and nuances. Where there is some policy basis for asking a question or making a statement, it is especially difficult to draw firm inferences about the sentiment behind the question or statement. Such statements can also be opportunistic: having some plausible grounds, or mistaken grounds that are not intrinsically objectionable given the mistake, but also taking advantage of how the speaker thinks some of the audience might receive it, or at least enjoying a kind of double-effect from the multiple readings of the statement. Feinstein, for instance, could have knowingly used "dogma" correctly and more or less sincerely, and with some reason, while knowing that some voters would understand it differently and more ignorantly or hostilely and that she might derive some political benefit from this reading. I'm talking about politics here, not law, and people are freer in those circumstances to draw inferences as they please. But intelligent and informed people should understand how difficult it is to do so carefully and correctly, and be cautious about doing so. In law, they should be even more aware of these difficulties, and more unwilling to draw inferences about motive or animus based on statements by politicians or office-holders, when those inferences will have a judicially enforceable legal effect. As a general rule, I think we are better off focusing on legal outputs than inputs in such cases.       

Posted by Paul Horwitz on September 7, 2017 at 10:28 AM in Paul Horwitz | Permalink | Comments (17)

Sunday, September 03, 2017

How to Mark Judge Posner's Retirement

Howard has already shared the news of Richard Posner's retirement from the bench. I have written several posts about him and published a couple of reviews of his recent books here and elsewhere in the past few years, and although (or because) they seem entirely relevant, I won't link to them here. I will, though, repeat one thing I have said often: Posner was and is easily my favorite contemporary legal writer, whether in his opinions or in his academic and other writings, although I have pointed to what I think are notable and increasing problems with those writings in recent years. Other than where great rock drummers are concerned, I'm not much into fandom (of course such a rule should not apply to a giant like John Bonham!). But I was and am indeed a Posner fan. In particular, I think his books published between 1990 and 2000--especially The Problems of Jurisprudence, Overcoming Law, The Problematics of Moral and Legal Theory, An Affair of State, The Essential Holmes, and Law and Legal Theory in England and America, and Aging and Old Age--marked a tremendous high point in his work. In this post, I want to discuss how to mark Posner's retirement from the bench--and how not to. Fair warning: There is much general hobby-horse riding about the American legal academy and legal profession ahead, although I think it's relevant to the post.  

I have often suggested in my Prawfs posts that there is a kind of extended or eternal adolescence problem in the American legal academy and profession, one marked especially by the clerkship culture and the tendency to speak worshipfully of one's "judge" for decades after one's clerkship has ended. The legal academy and profession tend to reject, at least by outward show but I think inwardly as well, the adage that no man is a hero to his valet. I think this is unhealthy and ultimately bespeaks a deep immaturity in the American legal culture, as well as a certain amount of insecurity and credentialism (a credentialism that takes the form of seeking greatness by association, and thus requires one continually to rekindle the flame at the altar of one's idol, so that one shines in the reflected light).

The NYU Law Review in 1995 published a great symposium issue on judicial biography, including a solid contribution from Posner. The first sentence of the preface to that symposium issue reads, "American law makes giants of its judges." That personification obscures the reality: American lawyers make giants of their judges. It is thus unsurprising that two recurring themes in the NYU symposium are the tendency toward hagiography in American judicial biography, and the tendency to "canonize" various judges, although once they become canonized they may fall out of favor, or the nature of their "greatness" may change in each generation to suit the needs of the time. (Justice Holmes's reputation illustrates both phenomena, since we have celebrated many different versions of Justice Holmes over the decades, and at times he goes out of fashion altogether; his stock seems to be going down right now. It will be interesting to see how our love of celebrating anniversaries, our current disagreements over free speech, and Holmes's fluctuating stock will come together in a year or two as we start celebrating the centennial of his most famous free speech dissents.) 

John Hart Ely famously dedicated his classic book Democracy and Distrust to the judge for whom he clerked, and for whom the book was a kind of apologia, Earl Warren. Ely wrote: "You don't need many heroes if you choose carefully." It is perhaps indicative of our culture--American culture generally, perhaps; certainly American legal and legal academic culture--that the dedication has been quoted at least 26 times in law reviews but has never, so far as I can see, been subjected to any skepticism or questioning. It is as if it our culture treats it as obvious and beyond question that having heroes is a good and desirable thing or, of greater importance, that it has no risks and side effects beyond the obvious and banal risk of choosing the wrong heroes. One might expect at least one article or passage, among the infinitude of words in the law review universe, that is willing to ask the heretical question whether a culture of heroes tends to become a culture of hero worship or idolatry, and whether that might not be an entirely good thing for an adult legal and political culture. There is a sense in which constitutional theory since 1980 has exhibited an odd dual tendency. On the one hand, it endlessly disparages the text of Democracy and Distrust itself. On the other, it endlessly celebrates and emulates its dedication, with the implication that Ely had the right goal--find the right "hero" and invent a constitutional theory that would enshrine his or her opinions--but the wrong specifics. I would venture the opinion that we have been too hard on the book and too easy on the dedication. A surprising amount of American constitutional theory, and American legal scholarship generally, still consists of a series of extended applications of or glosses on Ely's dedication, with the judge one clerked for (or wishes one had clerked for) substituted for Warren's name. One needn't be an absolute iconoclast to harbor some doubts and concerns about this phenomenon. 

These musings are relevant to Posner's retirement because they are similar to what he has often written himself, and thus suggest something about how Posner would, or should, want to be written about on this occasion. I develop that point, and say something about how we should mark his retirement, below. 

To continue: Posner has regularly, even repetitively, castigated the regular use of "the loftiest Law Day rhetoric" by and about judges and law. He has said that "ancestor worship is a besetting sin of the [American?] legal profession." He has written, again repetitively, about his insistence that his clerks call him by his first name, and criticized the tendency of judges to insist that their clerks and others act as judges' acolytes or foot-servants. His latest book devotes a huge amount of space to criticizing various judges and professors for what he sees as breathless and insincere encomia to the late Justice Scalia. Although it may be given a little (or a big) push by the fact that it's Scalia who was the subject of these tributes, Posner has often made the same point more generally. He has little interest in a culture of hero worship. Law reviews routinely devote pages to tributes to departed colleagues, and elite law reviews often publish tributes to Supreme Court justices and occasionally lower federal court judges, especially on their retirement or death. I enjoy reading them, but they are generally awash in cliches and extravagant praise, of the "He remains my idol still" variety.  Sometimes a tribute writer will give a good sense of the subject's personality; many of the tributes to Marvin Chirelstein in the Columbia Law Review were successful at this. But this is rare, and serious evaluation is rarer still. Posner has contributed to some law review tributes, but (with the possible exception of his tribute to Henry Friendly, with whom he finds no fault as man or judge) those contributions, even when they praise the subject, do so as part of an evaluation of larger developments or changes in the legal culture. His tribute to Bernard Meltzer, for example, praises Meltzer but uses that praise to pivot to a discussion of the loss of certain kinds of legal scholars and scholarship as a result of changes in faculty hiring. (I should note by way of confession that I recently wrote a post praising John Manning, a former professor and mentor of mine and the newest dean of Harvard Law School. Although it was full of praise and did not critique Manning's teaching or scholarship, neither was it intended to lionize or exalt him. It had a purpose beyond mere praise. I made clear that one's debts to such mentors are best repaid not by flattering them, but by trying to help others.) 

By far the most famous, or notorious, example of Posner's approach on these occasions is Posner's contribution to the Harvard Law Review's posthumous tribute to his former boss, Justice William Brennan. His tribute to Brennan on the occasion of his retirement in 1990 was laudatory, but Posner took care to note that it was too early to judge the value and consequences of Brennan's "contribution to the Supreme Court, the law, and American life." By the time of Brennan's death in 1997, Posner felt somewhat more comfortable rendering an assessment. His contribution begins:

When a public man dies in his nineties, the maxim de mortuis nihil nisi bonum is suspended, and it is permitted without breach of decorum to mingle affectionate tribute with critical assessment. Justice Brennan was largely free of pettiness and vanity, and so might actually have preferred a form of remembrance in which warm affection was seasoned with an effort at cool evaluation.

That is what Posner's contribution sought to provide. He acknowledged and praised Brennan's warmth and decency as a boss and a person, and "affirm[ed] Brennan's historical importance as a central figure in a judicial revolution." But he argued that Brennan's key contribution to that revolution lay not in some towering intellect but in Brennan's personality and his skill as a "facilitator" on the Court, along with a confluence of circumstances that made it possible for those qualities to have an impact on the Court and its decisions. Brennan's "achievement," Posner wrote, "lay not in the texture of his thought or writing but rather in his influence on the content of the law." As such, he argued, any evaluation of the "enduring quality of his work" must perforce be based on the effects of that work: "the statesman judge [as opposed to the genuinely intellectual judge] must be judged by the criteria of statesmanship, implying close attention to long-term social and political consequences." He raised doubts about those consequences, and said he did "not see how anyone could responsibly pronounce the Warren revolution a largely unqualified success," but did not reach firm conclusions. Posner concluded: "Only when [the Warren Court's] contribution to the nation's well-being has been dispassionately assessed from a perspective longer than is available to us today will it be possible to measure the value of Justice Brennan's contribution to American law." 

I was a student, not a professor, when this tribute-cum-critique was published. I found it striking and admirable, but have no idea how it was received by the legal academy at the time. There is a passing disagreement with it in a 1999 law review article. (That article is titled "Remembering a Constitutional Hero," and was written for a symposium titled "Remembering and Advancing the Constitutional Vision of Justice William J. Brennan, Jr." [emphasis added]. Those titles exemplify both the usual hero-worshipping tendencies of the legal academy and the link between that tendency and the desire to advance the mission and reputation of one's judge. Unsurprisingly, the majority of the authors of that piece are former Brennan clerks.) But the best way to judge the reaction to his piece would not involve law review citations. It would be to have been a fly on the wall of the faculty lounges of the law schools (especially the elite schools) at the time. Given my subsequent experience of such places, I would hazard a guess that the reaction was less than positive: that it would have been viewed as déclassé at best, insulting and outrageous at worst.

But Posner's approach was, and is, the right one. Even if they deserve it, life-tenured federal judges, let alone Supreme Court justices and/or judicial celebrities, do not require flattery, praise, and hero-worship. They have tenure, the robe, the large chambers, the deferential treatment of clerks and marshals and lawyers, and multiple opportunities to be flown to and praised by law schools and ACS or FedSoc dinners (not to mention the financial rewards that increasingly accompany their positions). They have entirely too many uncritical valets. (In person, that is: law professors and others are happy to heap contempt on them behind their back or in print, which is little different given the sheer volume of legal periodical literature, even if they drop all that when in the holy presence.) We should dispense with most of that. It does little positive good, and what good it does may be outweighed by its harm: its distorting effect on what ought to be a more mature and independent and less personality-oriented, worshipful, elite establishment-oriented legal culture.

I venture a modest prediction. Much of the instant and even short- or medium-term reaction to Posner's retirement will consist of exactly the kind of thing he criticized and disdained. With the usual delightful dollop of irony, in paying tribute to Posner the usual suspects--deans, celebrity legal academics, law professors with Twitter feeds, and so on--will praise Posner's influence while displaying little or no evidence of that influence. Some of this will have to do with the limits of Twitter and other social media. (The overheated criticisms of Posner on Twitter--"about time!," "worst judge ever," "lawless," and so on--will likewise demonstrate those limits.) And some of it will have to do with the fact that whatever liberal legal academics used to say about Posner, his recent views and his opinion (mostly a very good opinion, in my view) in Baskin v. Bogan will wash away any former ill-will in a tide of good feelings. But much of it will have to do with the entrenched and conservative nature of the legal (and legal academic) culture, which will happily take on board some of Posner's influence while domesticating it, and certainly will not follow his advice to get rid of a culture of praise and flattery. I happen to think Posner deserves the praise, and certainly can be recognized as the most influential judge and legal academic for several generations. But that will not stop me from simultaneously chuckling over and despairing at the irony.

The best way to mark Judge Posner's retirement, of course, is as he would do so: by evaluating his career and his work. His judicial opinions and academic writing, his advocacy of and contributions to law and economics and legal pragmatism, his methodology, the influence of all of these, their consequences and systemic effects: All of these should be evaluated carefully, critically, candidly, and unsparingly, immersed in the same acid bath of which Posner himself is so fond. To paraphrase Posner's description of Justice Holmes's dissent in Lochner, whether Posner was a good judge and legal scholar or not, he was and is certainly a great one. Greatness, judicial or otherwise, is difficult to imitate or emulate. That is all the more reason both to praise Posner and to ask critically whether his is a sound model for others. And Posner's greatness, along with the sheer quantity of his written output, means there is plenty to criticize and raise doubts about as well as to praise.

One can, of course, offer very simple, brief, routine complimentary statements marking his retirement and mentioning his great influence. That seems appropriate to me. Such understated boilerplate statements may not be useful, but they will be not be harmful or dishonest either. If it is too early to offer a fuller evaluation, one can say nothing, or next to nothing, or hedge one's statement by noting that a proper evaluation of his impact will take time and perspective. One can try to offer a meaningful critical evaluation. But flowery, exaggerated, worshipful praise is not only unnecessary and dangerous; it is the very opposite of a Posnerian response. It is, however, quite typical of American legal and legal academic culture. 

    

Posted by Paul Horwitz on September 3, 2017 at 12:28 PM in Paul Horwitz | Permalink | Comments (0)

Thursday, August 10, 2017

Is "The Federal Judiciary" Necessary?

I have just made my way through Richard Posner's latest book (as of the time of posting), The Federal Judiciary: Strengths and Weaknesses. Not without difficulty: The second half of the book was more of a slog than the first, and finishing it was more an act of will than of love. Before making two points about it, I want to offer some context; another bit of context, a confession, follows at the end. So: 1) I reviewed and criticized Posner's last book, Divergent Paths: The Academy and the Judiciary; 2) in the course of discussing William Domnarski's recent biography of Posner (note that I screwed up Domnarski's name in that post; my apologies), I suggested that it is appropriate and relevant to ask whether Posner has declined and whether his recent work and other statements suggest that it may be time for him to retire (I did not answer the question; I just said it was a natural and important question to ask and criticized the apparent reluctance to do so, for him and for Justice Ginsburg too); 3) I recently raised that question again, albeit in the course of praising something he had written this summer; and 4) as I have often noted, Posner has long been my favorite legal writer and thinker. (Not my "hero." I think lawyers and legal academics are better off without heroes and hero-worship. The famous dedication to John Hart Ely's book Democracy and Distrust is moving, captures a common mentality of lawyers and legal academics, and is a mistake.) If I think there are good reasons to ask whether Posner has declined, these are the questions of an admirer, not a hater. I find moving his quotation from Yeats at page 376, beginning, "Grant me an old man's frenzy,/Myself must I remake/Till I am Timon and Lear," although one might recall that on some interpretations Lear begins by displaying pride and narcissism, harms his kingdom by denying his own aging and death, and comes to madness. 

A longtime critic of Posner (and admirer and former clerk of Posner's nemesis, Justice Scalia), Ed Whelan, has a series of posts at The National Review's website detailing and lambasting the book. (The best posts, in my view, are this and this one.) I do not share all of Whelan's perspective or agree with all of his criticisms of Posner or the book, although some seem on-target. But I write here to offer a partial defense of the book and to raise one general, critical question about it. 

First, the book isn't bad! That's faint praise, but seems necessary in light of Whelan's widely shared posts, which might well lead readers to wonder whether to bother with the book at all. (Whelan does acknowledge that there are good bits and pieces here and there, but the point may get lost amid all the disparaging remarks.) With the caveats noted below, I enjoyed a fair amount of the book, especially the first half. As with a number of Posner's books, even when the book as a whole is questionable or seems loosely put together, there are many tidbits within it to enjoy and profit from. There are reasons to read it. 

For example, as I noted in my last post, I just taught the Intro to Law class for entering 1Ls at my law school. I told my students that it is common for law students to seek definite definitions for and applications of frequently used legal phrases ("intermediate scrutiny," "clearly erroneous," and so on), and common for lawyers to argue over those phrases in the manner of those who think some definite meaning can be derived from them, an exercise that easily turns into a kind of scholasticism. I told the students that such phrases rarely if ever have a precise or fixed meaning, and that--their understandable desire for certainty notwithstanding--it would be a mistake for them to begin their legal educations, or careers, under the illusion that most (or any) legal/judicial language of this sort can be reduced to some kind of mathematical formula. Such phrases should be understood as practices, or as placeholders standing in for an activity calling for judgment, and perhaps summing up some kind of underlying concept or policy, but not a definite one. Posner has a lengthy (too lengthy) section (especially 239-76, but really most of chapter 3) discussing various standards of review and other legal phrases. He argues, by picking them apart, that "there are no satisfactory answers to my questions about the meaning of familiar legal phrases commonly invoked by lawyers and judges without any clear idea of their meaning," and that they "exemplify not only concealment and indirection but also sheer superfluity in legal discourse." The discussion would have been better if it had been shorter, and some of the individual criticisms seem too cute. But it's useful and refreshing. Law students, lawyers, and judges would benefit from reading it.      

The real question is not whether the book is bad, but whether it is necessary. To his credit, Posner announces on the second page that the book is what he calls a "macédoine," a "medley or jumble." I would call it a "gallimaufry," a confused medley or jumble. Also to his credit, he acknowledges the "somewhat unconventional" format of the book, which "contains a good deal of quoted material." "A good deal" is an understatement. The book is about 430 pages long. Of that, some 130 pages consist of long block quotes (I tried not to count short ones), reprints of his own writing (including several judicial opinions), and most strikingly long sections of other people's writing, including lengthy judicial opinions from his own and other courts. Some are useful. Many are useful but could have been shortened or summarized. Some are not: Did we really need five and a half pages of a Slate dialogue between Posner and Akhil Amar? A few are embarrassing: The introductory chapter contains a three-page laudatory review of his last book, from the Los Angeles Daily Journal. At times this feels less like a book book and more like a scrapbook or commonplace book. Much of it feels loosely sutured together. As Whelan notes, it is full of digressions and divagations--often true of Posner's books and usually worth the diversions, but in this case ultimately tedious and marked by abrupt transitions. Imprisoned in this fat book is a much thinner one. I would complete Cyril Connolly's quote and say "wildly signalling to be let out," but I don't see much evidence of that. The epilogue feels tacked on and perfunctory. One understands the desire to acknowledge the election of Donald Trump, but it doesn't add much, unless reprinting the four-page open letter to Trump from "Constitutional Law Scholars" can be considered a fruitful addition. It doesn't seem so to me, especially given that it's an open letter and easily accessible.

(A more substantive side note: Religion plays a weird role in the book, getting numerous brief but ominous references. Posner quotes himself saying that "our deepest values (Holmes's 'can't helps') live below thought and provide warrants for action even when we cannot give those values a compelling or perhaps any rational justification. The point holds even for judicial action. The judge [inevitably] . . . preserves a role for conscience." But he returns again and again to only one "can't help" or "deepest value," religion, often highly speculatively and generally suspiciously if not disparagingly. The closest he comes to a justification for this fixation is a short passage--immediately after arguing with seeming approval that judges are inevitably influenced by their "deepest values" and "conscience[s]," and he notes elsewhere in the book that judges' many priors include religion--offering a cursory and tendentious argument from the Establishment Clause. That's not enough of a hook on which to hang his repeated, abrupt, almost obsessive references to religion. He should have said more about it, or less.)      

I said I especially enjoyed the first half of the book. That's no surprise. I also enjoyed it when I read most of it in his Divergent Paths, Reflections on Judging, How Judges Think, and his two editions of The Federal Courts--not to mention pages and pages elsewhere excoriating the Bluebook. Of course there are some changes and additions, especially from his earlier Federal Courts books. But a good deal of it is a mere reprinting or restatement of recent writings without building on them. The closest to a justification for this extreme repetitiveness that I can find is his statement (at page 393) that his oft-stated skepticism and criticisms are "very largely ignored" and that "[c]riticisms by me that seem irrefutable are seemingly not even noticed, as if I were exhibiting paintings to a blind man or singing to a deaf one." I would urge him to take more comfort than that: I think much more attention has been paid than these quotes suggest. Even if I'm wrong, I don't think it justifies repeating, quoting, or paraphrasing all this yet again and so soon after his last three books on these subjects. One despairing memoir from Lear following his displacement would have been enlightening; four or five would have been tedious, and provided some evidence that it was indeed time for him to exit the stage.

One must note that some books, including some of Posner's previous books, consist largely of reprints of published articles. Maybe that weakens my general point a little, but not much, I think. Some of these kinds of books are indeed superfluous. But in most cases those articles are less likely to be encountered by the general reader, and there is some value in their being collected in book form. The best of them have a unity of purpose that sheds light on the collection as a whole, and make meaningful changes to the articles or add connective tissue that contributes a new element or greater clarity to the work, making it more than the sum of its parts. The books themselves, as books, have some purpose and novelty, even if the material is collected from elsewhere. There's a difference between that and simply repeating what one has already said, at length and as well or better, in previous and recent books.    

In sum, I don't think the book was or is necessary. And to that I would add (with the confessional caveat below) that I doubt in particular that it was necessary for Harvard University Press to publish it. Perhaps that suggests that I place too much faith in university presses, especially elite ones, and am engaging in a form of snobbery or credentialism. I hope not. But I do think that university presses have a valuable niche role to play in publishing, and that elite university presses ought to make the most of that role. Some presses--Oxford and Cambridge come most readily to mind--maintain huge lists. Others, like Harvard or Yale, do not, and should be selective in forming their relatively small booklists. They still have some importance (to me, at least) for their signaling function or imprimatur. The books they publish should deserve that imprimatur and add something to the literature. This one doesn't. (And, as I have suggested, it was not edited as well as one might hope or expect, although Posner thanks the Press for "critical comments on the structure and substance" of the book. I credit that statement, but it might tell us more about the state of the earlier drafts than about the quality of the final product.) A trade press could have published it, perhaps in softcover only. (I haven't read Justice Ginsburg's In My Own Words, which is mostly a collection of speeches and other ephemera along with some co-authored biographical material. Perhaps it is a work of genius. But Simon & Schuster was an adequate, and probably more profitable, home for it; it didn't need and probably didn't merit the imprimatur of a university press.) Or he could have kept working on it until it made a serious and new contribution.  I got some pleasure from the book--occasionally from new things, but mostly from reading what I had basically already read in his other recent books. I'm not panning it, as such. But I doubt strongly that it was necessary. 

* A final confession seems appropriate. I have published one book with Harvard University Press and, more relevantly, have another book in progress with them. For "in progress," read "incredibly late." Some of the reasons it is so late are fair ones: several surgeries and lots of chronic pain. Others are lamentable but understandable: I decided it needed an empirical section, and that is proving more difficult than I thought, something I ought to have weighed more heavily when estimating its date of completion. None are sufficient. I was greatly cheered by this recent article, but I'm not counting on similar forbearance, and I'm terribly embarrassed and frustrated by my lateness. I wrote last year about the effects that both chronic pain and the drugs used to treat it can have on one's productivity as a writer. That is an explanation, not an excuse--others have done more while laboring under greater burdens--but it doesn't fully capture how frustrating and demoralizing it can be to try to get things done when you feel like only half a fully functioning person. Especially given my own ambitions, I would very much like to be writing more and faster right now, as I used to. I can only apologize that I cannot, and try to press on. In any event, it didn't seem fair to criticize Posner's book--which has the comparative advantage to my own of actually existing--and especially to reserve some of that criticism for the Press, for publishing it in this form, without acknowledging the plank in my own eye.    

 

        

Posted by Paul Horwitz on August 10, 2017 at 10:12 AM in Paul Horwitz | Permalink | Comments (0)

Saturday, August 05, 2017

What I Teach in "Introduction to the Study of Law," With an Assist from Hugh Trevor-Roper

The academic year begins absurdly early in Alabama, at public schools and universities alike, and I have already begun teaching. The 1L class began its work on Thursday with a short, intensive course called "Introduction to the Study of Law." I believe this is the second year we have taught it for every 1L student, and I have taught it both years. Our dean, Mark Brandon, taught most recently at Vanderbilt, and so it's perhaps unsurprising that Vanderbilt offers such a course and that we use a text written by two Vanderbilt law professors, Tracey George and Suzanna Sherry. The class mostly does what one would expect of such a course. It gives students some basics on what to expect from the law school experience, how to read and brief cases, some of the basic knowledge and vocabulary they will need to know to do their work, tips for success, and so on. The goal is to eliminate unnecessary fear and ignorance prior to the beginning of substantive law school classes. (Although I tell them, half-jokingly, that if there were no fear at all, they would miss out on joining the long law school tradition, and would lack stories to tell each other and their progeny in years to come.) We read a couple of cases, of course, and--also of course--spend some time with the classic "no vehicles in the park" hypothetical. Is the course necessary? I don't know. I enjoy any opportunity to meet and teach 1Ls, so I'm not complaining; and I think they get something out of it. It is certainly not a demanding course. No doubt many schools now do something like this, either for every student or, sometimes and problematically, for a smaller group of entering law students. 

There are a couple of things I do in this class that I thought I would share. One is obvious, if no doubt not always done: I make sure that the students, in the short time they have with me, read at least one or two full cases. The Sherry and George book offers excerpts from the fun recent Supreme Court decision in Yates v. United States, which asked whether fish are a "tangible object" for purposes of a federal criminal law barring the destruction of material to prevent its seizure by the government. Their excerpt is fine but shorter than even the average casebook excerpt. I require the students to read the full version, including the concurring and dissenting opinions, which altogether is 43 pages not counting the syllabus (which I do not reprint in my handout). Students are not required often enough in law school to read full opinions rather than excerpted versions. They thus aren't forced often enough to do the work of figuring out what the opinion means, separating the substance from the filler, and learning how to use separate opinions to make sense of and critique the majority (or plurality, in this case) opinion, and vice versa. Just as I require my Constitutional Law students to read the Constitution itself in depth at least once, even if most of the course goes far afield from it and the text itself is often unimportant, so I want these students to read a full case at least once in law school. (Yes, they do so in their legal writing and research classes--further evidence that LRW is the most important class in law school. And I hope they all do so in the course of writing papers during law school. But more of this is better, and it's rare in substantive courses.) Yates is a statutory case and a Supreme Court case, so it's not fully illustrative of what they usually read in their 1L year, although it's pretty fun and readable. I also have them read a much shorter but still full version of a standard common-law case, and write a brief of that case. Although I don't think my own chosen common-law case qualifies, having students read a case or two is one area in which those professors or law schools that are so minded can bring in some of the underlying bigger issues that are present but not always discussed in law school--race, inequality, etc. (Some of these issues are discussed in my Intro class.) 

There are three other things I talk about: jobs; whether to attend law school at all; and writing. More on that below.

First, I talk extensively about jobs. No doubt this will please the many students, graduates, and professors who worry about this issue and think law schools fail if they're not candid and detailed in talking about difficulties getting jobs, the state of the legal economy, and so on. And it is equally likely that the talk may dispirit some of my new students, who are coming in full of hope and perhaps high expectations engendered by all the usual blandishments and encouragements that they receive when deciding whether and which law school to attend. I consider it a duty, in any event--and especially a duty to do it early, when they can still reconsider their decision to attend law school, without as much expense or disruption as withdrawing later would involve. I do mention those writers who have argued that the legal economy is improving, that law school graduates still enjoy a lifetime earnings benefit, and so on; I also mention those who argue that the legal economy is undergoing fundamental restructuring and that there will be many fewer jobs, or worse jobs, for today's law students and lawyers. But the general discussion is short; much of the talk is about jobs for Alabama students in particular, and advice for their job hunt.

Alabama is a highly ranked law school and, I naturally think, a durn good one. If rankings were all, it would be a ticket to national employment as well as work in Alabama. Our ranking, among other factors (including our relatively low tuition and extensive clinical offerings; many also say they are impressed by the friendliness of everyone they meet when they visit, and the interest in those prospective students, as compared to their visits to other law schools, which seem less friendly and happy or more indifferent to them), draws students from out of state as well as Alabamans. But rankings are not all, especially when combined with two things: the national prejudice elicited by the very mention of the word "Alabama," and the tendency within Alabama to be parochial. So we face a kind of double-bind in employment. Students who come from out of state to Alabama for law school and want to live and work here sometimes find that Alabama law firms worry that they will leave after a couple of years, and that their investment in training them will be lost. They are, in short, suspicious of out-of-staters, and place a heavy burden of proof on these students that they will remain in the state for the long haul. Conversely, despite its ranking, the value of the Alabama law degree does not "travel" out of state to a degree commensurate with our ranking. So those students, whether out-of-staters or Alabamans, who want to work elsewhere (other than a few places in the Southeast like Atlanta or Nashville) find that it's more difficult than they thought to get jobs there. (I will add that when I meet with prospective students the year before they attend law school, I ask where they want to work and what schools they have gotten into. Where appropriate, if they want to work in place X and have an offer from a decent law school in place X, I often advise them to think seriously about going there, even if it's more expensive than Alabama. I offer half-hearted apologies to the hard-working folks in our admissions and recruitment department.) 

I don't want to overstate any of this, especially if any of my colleagues are (still) reading this. Most of our graduates succeed in getting jobs, and I hope most of them get the jobs they want. Moreover, everyone from the dean on down is working hard on this issue, and making progress. As at most schools, however, getting a job isn't automatic, and it's better that our students be warned about our particular conundrum, even if it makes them nervous or unhappy at the beginning of law school. 

I don't have perfect advice. If I were talking to Alabama law firms themselves, I would tell them, I hope gently, that their parochialism is silly. And it is tied, no doubt, to a general parochialism in Alabama, and especially a tendency to rely heavily and foolishly on those who already know each other--from school, from social networks in Birmingham or Mobile, from excrescences such as the "Machine," etc. It is not different in kind from networks of those who know each other from Choate or Stuyvesant or Harvard or other webs of the northeastern professional-managerial class. But it is worse in degree, incestuous, secretive, often has a racial- and class-discriminatory impact, and is one among many reasons that our state too often fails to update itself and too often prefers mediocrity to greatness. That's a broad statement and an accurate one, but not of course a universal one. Those employers think there are many reasons to live in places like Birmingham and Mobile, and they're right; they should have a little more faith. They should also place greater weight on the fact that these students have already chosen to come to school here. Finally, they're missing out on excellent opportunities for the sake of ostensibly sure bets. Some out-of-staters will leave, but others will stay. In any event, some will be worth the investment even if they eventually leave. In the meantime, the web of alumni and connections built thereby will benefit them in the long run, as will the infusion of new blood, energy, and ways of thinking and doing business at those firms and in the state legal community, as opposed to stagnating and incestuous circles of the already-acquainted, and the occasional high-profile scandals and routine low-profile conflicts of interest they engender. I think many lawyers at many big firms in the state know this and are responding, and I think our dean, who is an Alabama alumnus, is an extraordinary ambassador and advocate for our students. But change comes slowly in our state. 

To the students, I say this. For out-of-staters who want to work in Alabama, I tell them to start preparing a plausible (and hopefully mostly sincere) story about why they want to stay and work in Alabama for a long time. (I do not tell them never to leave. The long-term shape of their careers and their decisions is their own business.) And I tell them to start immediately getting to know as many Alabama lawyers as they can, including the usual offer to buy coffee and listen admiringly to the Great Man or Woman talk about his or her practice, with the emphatic assurance that they will not ask for a job. Lawyers like to talk about themselves and, on the whole, like talking to students who profess to want to do exactly what they do. They are more willing to do so if there is no pleading for a job attached. They may remember that student, and they may introduce him or her to other lawyers who will also remember his or her name. It's slow work and there will be more noes than yeses, but it can result in a job in the long term. Similarly, for Alabamans or out-of-staters studying at Alabama but who want to work elsewhere, I encourage them to start trying to meet as many lawyers in the place and area of practice they are interested in as possible. That may include using trips or vacations to those places, and trying in advance to set up as many informal informational interviews as they can manage. They should certainly contact Alabama alumni in those places, and although younger alumni will have less power, they may understand the conundrum better and be more willing to give advice. 

Most important, and perhaps most in tension with what they are told officially, I tell my new students that they should treat the job hunt as an immediate priority, not something that should wait until after midterms, Thanksgiving, or first-semester exams. Yes, they should focus hard on their studies. But it is never too early to start worrying about jobs. I advise them (and upper-year students as well) to act as if they are enrolled each semester in a class called "Job Hunting," and--as with their other classes--to schedule a certain amount of time to it each week rather than only at the end of the semester or other specific times. They should move the ball forward a little each week rather than trust that everything will work out if they apply through the conventional channels at the conventional times and/or rely on the on-campus interview process. They should do so for all six semesters of law school, including the first. I can't promise magic results. (Again I emphasize that most of our graduates succeed in getting jobs.) But I can promise a little less tension, less surprise and sudden disappointment, and more agency.

Second, I talk about the decision to attend law school itself. The modern cliche is that prospective law students should be told that unless they really want to actually practice law, with the expectation of a living but not great wealth or security, they should probably not attend law school. Take comfort: When I asked for a show of hands, the vast majority of the class reported that they had been given this advice before deciding to come to law school. (I offer the same advice to prospective and admitted law students.) We talk about why they decided to come anyway, what their expectations are, and what concerns they have. Some students talk about unhappy lawyers they know, and why they're unhappy.

This talk is less necessary than it was around 2009-12, when students came in with a great gulf between expectation and reality and less information about law school and the legal economy. Most of my students now are pretty informed about these issues, and have made conscious decisions about whether and why to attend. (They may be over-optimistic decisions, to be sure; but they are much more informed and deliberate decisions.) My point is not to scare them away. They're adults, for one thing; and for another, I loved law school and (mostly) my brief practice of law, and many of these students are far more determined, informed, and excited about the nuts-and-bolts practice of law than those of us who attended law school a couple of decades ago, when "I have a BA in English" or "I like debating" was still a frequent explanation for one's decision to attend. But it's better that they talk and think again about these questions now--when, among other things, it's easier to withdraw if they so choose--than later. We talk about these things too when I teach the legal ethics course, but by then they're already second- or third-year law students. 

Finally and more conventionally, I talk a lot about writing. My general advice is that LRW is the most important course in law school, that a vast amount of legal practice in any field involves writing, that the ability to translate and explain clearly to clients and others is a major part of their jobs, and that if they can internalize the form of a good legal memo, they can apply that skill more easily and successfully on law school exams. I continue to think this advice is better and cheaper than trying to learn and game the preferences of each individual professor. This year, I handed out something I came across in my summer reading: the English historian Hugh Trevor-Roper's writing advice for those writing academic theses. Although it's written for a different audience, it's mostly excellent advice for any writer, including any legal writer. A PDF version is available here, but I reprint them below, from this source. It can also be found in this collection of letters from Trevor-Roper, which is a delightful read.

* * *  

THE TEN COMMANDMENTS OF WRITING

1 Thou shalt know thine own argument and cleave fast to it, and shall not digress nor deviate from it without the knowledge and consent of the reader, whom at all times thou shalt lead at a pace which he can follow and by a route which is clear to him as he goeth.



  1. Thou shalt respect the autonomy of the paragraph, as commended by the authority and example of the historian Edward Gibbon; for it is the essential unit in the chain of argument. Therefore thou shalt keep it pure and self-contained, each paragraph having  within it a single central point to which all other observations in it shall be exactly subordinated by the proper use of the particles and inflexions given to us for this purpose.

 

  1. Thou shalt aim always at clarity of exposition, to which all other literary aims shall be subordinated, remembering the rule “clarté prime, longeur secondaire.”* To this end thou shalt strive that no sentence be syntactically capable of any unintended meaning. To this end also thou shalt not fear to repeat thyself, if clarity require it, nor to state facts which thou thinkest as well known to others as to thyself; for it is better to remind the learned than to leave the unlearned in perplexity.

 

  1. Thou shalt keep the structure of thy sentences clear, preferring short sentences to long and simple structures to complex, lest the reader lose his way in a labyrinth of subordinate clauses; and in particular, thou shalt not enclose one relative clause in another,  for this both betrays crudity of expression and is a fertile source of ambiguity.

 

  1. Thou shalt preserve the unities of time and place,**placing thyself, in imagination, in one time and one place, and distinguishing all others to which thou mayest refer by a proper use of tenses and other forms of speech devised for this purpose; for unless we exploit the distinction between past and pluperfect tenses, and between imperfect and future conditional, we cannot attain perfect limpidity of style and argument.

 

  1. Thou shalt not despise the subjunctive mood, a useful, subtle and graceful mood, blessed by Erasmus and venerated by George Moore, though cursed and anathematized by the Holy Inquisition, politicians and some of the media, and others who prefer to diminish language.***

 

  1. Thou shalt always proceed in an orderly fashion, according to the rules of right reason: as, from the general to the particular when a generality is to be illustrated, but from the particular to the general when a generality is to be proved.

 

  1. Thou shalt see what thou writest, and therefore shall not mix thy metaphors. For a mixed metaphor is proof that the image therein contained has not been seen worth the inner eye, and therefore such a metaphor is not a true metaphor, created out of the active eye of imagination, but from stale jargon idly drawn up from the stagnant sump of commonplace.

 

  1. Thou shalt also hear what thou writest, with thine inner ear, so that no outer ear may be offended by jarring syllables or unmelodious rhythm; remembering herein with piety, though not striving to imitate, the rotundities of Sir Thomas Browne, and the clausulae of Cicero.

 

  1. Thou shalt carefully expunge from thy writing all consciously written purple passages, lest they rise up to shame thee in thine old age.

                                                                                AMEN

* Some versions ascribe this to "the prophet Black."

** Another version adds "as commended by the High Priest Nicholas Boileau, (1636-1711)"

*** Another version has it ‘the Holy Inquisition, Pravda, and the late Lord Beaverbrook.’

       

 

               

   

 

 

Posted by Paul Horwitz on August 5, 2017 at 11:35 AM in Paul Horwitz | Permalink | Comments (6)

Tuesday, July 11, 2017

"Positive Pluralism Now": A Review of John Inazu's "Confident Pluralism"

I'm grateful to Rick for the mention of my piece Positive Pluralism Now, a review of John Inazu's fine and very well- and widely-noted book Confident Pluralism: Surviving and Thriving Through Deep Difference. As a book review, my just-published piece suffers from the usual potential SSRN black hole: my experience, at least, is that SSRN is inconsistent in its treatment of book reviews but generally prefers not to put them on the main, searchable "list". What's more, it lacks even a Solum-ready abstract. So I want to offer a summary of the review, which is an attempt to use the book as a vehicle to think about issues that have interested and worried me for some time, both before and after the election. 

First, although this is a critical review of John's book, it's not a dismissive one. I write: 

If a new literature of pluralism emerges in this culture-war cycle, Professor John Inazu’s Confident Pluralism: Surviving and Thriving through Deep Difference is likely to be one of its key texts. Inazu’s book is blissfully short, clearly written, aimed at educated general readers rather than academic specialists, and underwritten by personal experiences that cross standard culture-war lines. Confident Pluralism is necessary reading for anyone who is frustrated by the belligerence and inflexibility of the current discussion and looking for ways for different deeply held perspectives and tightly knit communities to survive and thrive. . . . Confident Pluralism is a good and valuable book. 

What I find especially important about the book is

the fact of Confident Pluralism. Like other expressly pluralist interventions, it comes at a moment, during one of our recurring culture wars, in which debate hardens around the poles and those poles move ever farther apart. The culture-war cycles tend to subside. . . . But they always come back. In or around each cycle, a pluralist intervention also occurs, and these interventions have provided some of the richest and most inspiring literature, offering a welcome alternative to the tedious trading of blows between left and right, even if they have made relatively few converts.

Those are the positives, and they are sincerely meant. I am a strong believer in pluralism not just as a social fact, one to be "managed" as if it were a nice but dangerous demographic incident, but as a good in itself. As the review makes clear, and as my friends Rick and Marc DeGirolami pointed out in tough comments on a draft, whether there is such a thing as pluralism as an end in itself and whether it is a good thing in itself are difficult questions, and I only make some headway on these questions, despite having tried to address it at least once before. This is my stab at it here:

I believe there is something to the possibility of arguing for pluralism as a distinctive positive good rather than a mere “claim of descriptive sociology” to be managed. There is a real difference between an approach that treats equality (or liberty) as the good to be realized, leaving pluralism to be slotted into or reconciled with that master value, and an approach that starts with pluralism as a positive feature of our society and treats liberty and equality as factors to be weighed and considered as means of helping pluralism itself flourish. At the least, it moves away from the “logic of congruence” and an overly state-centered approach to our social and political structure. And it demands suppleness about the different meanings of “liberty” and “equality” themselves, and about the possibility that the “official” legal versions of these values do not apply everywhere or with equal strength or meaning in different legal and non-legal contexts.

That said, I have two questions or criticisms about the book, one specific to John's project and one more general, although the two are clearly related and both are related to current events. The first is substantive. I argue--against my own intuitions and desires, to be sure--that "pluralism as a positive approach—as a good in itself, rather than a descriptive fact or a “technical problem . . . to be managed”—faces serious questions and difficulties. . . . [T]hese questions remain largely unanswered in Confident Pluralism because of Inazu’s strategic refusal to stake out a more distinctive and forceful theoretical position on pluralism itself." On the one hand, that strategic (if I am right to call it that), least-common-denominator approach has been a success: More so than most law professors' books, John's book has received a wide, enthusiastic, and eager reception--although one may worry that it has reached only the kind of "reasonable" audience that already believes in its principles rather than made new converts to pluralism. On the other, it leaves many questions about both the basis for and the application of the "confident pluralism" he describes.

The second question, one that in fairness was beyond his doing, is one of timing. I write:

From an optimistic perspective, Confident Pluralism is perfectly timed, coming when the culture war is at its height and a solution is all the more welcome. A more pessimistic reading of our situation, however, is that the book is already too late. To be effective, pluralist interventions in a culture-war cycle require a very specific hospitable environment. The intervention must come when there is enough heated disagreement to make an alternative to the shouting seem attractive. But it must also occur while both sides agree that there is a war, and think of either side as having a serious chance of winning it, leaving them amenable to compromise and coexistence. That is a pretty small window—and it may already have closed. . . .

 

A big part of this question of timing, and a phenomenon that has wreaked havoc with all general articles about constitutional law and theory written between last summer and this one, is what I call "one final, crucial data point[:] the short-fingered data point whose swift political rise so rudely interrupted our good old-fashioned on- and off-campus culture wars. Its name, of course, is President Trump." Trump, in this view, is both an exemplar and beneficiary of the culture wars and a disruption to the routine course they were taking in locations like university campuses, which might in time have led to the usual drop-off in interest in those fights. Now I am left uncertain about what will happen next, but think it means that however needed Inazu's book might be now, it is less likely to find ready takers:

Trump’s victory suggests . . . [that] the urging of a liberal “hard line” and the rise of an anti-elite conservative populist movement [ ] are closely connected. That victory simultaneously disrupted and entrenched the culture wars. It suggested that neither side was interested in the kind of compromise and coexistence that Inazu advocates, at least as long as victory was in prospect. And now that the pre-election expectations of the elite culture warriors have been upset in ways that might counsel compromise, there is a good chance that both sides will either double down or head to the barricades on other and bigger issues rather than coming together. . . . Inazu’s book thus comes along at a moment when it is simultaneously most needed and least likely to make new converts to the pluralist cause.

There is a lot in the review about culture wars, "political correctness" (and debates over whether it exists), lumping and splitting, the cyclical nature of both culture-wars and pluralism as a response to them, the "meaning" (if any) of Trump's election, and the (short-lived?) recommendation to abandon "defensive crouch liberal constitutionalism." There are very few answers. I hope some of you read it and even enjoy it--and I hope many more of you take a look at John's excellent book.

 

 

 

   

Posted by Paul Horwitz on July 11, 2017 at 09:25 AM in Paul Horwitz | Permalink | Comments (3)

Monday, July 10, 2017

Posner on Aging Judges: Again Much More Right Than Wrong

Between more productive uses of my time, I'm hoping to circle back and comment on a few interesting things I read last week. I very much hope to get around to this post by Mark Tushnet on the obligations of those who comment on contemporary political issues. (I am deliberately generalizing from the more specific question addressed in his post.) Like many of Mark's best posts, I consider it interesting, provocative, and well worth reading-- even or especially if I disagree with it, as I do in this case. 

For now, let me discuss another fun item from last week: this dialogue on Slate (sorry!) between judges Richard Posner and Jed Rakoff on the question whether there should be age limits for federal judges.* Posner says yes: "I believe there should be mandatory retirement for all judges at a fixed age, probably 80." (Posner is 78.) Rakoff disagrees, and as the conversation proceeds Posner gets more Posner-y and Rakoff gets increasingly "taken aback" by Posner's musings, so much so that he uses the fierce ejaculation "Jeepers."

A longtime fan of Posner, I have nevertheless (and in keeping with what I think is a proper Posnerian approach; to hero-worship Posner is really a form of anti-Posnerianism) disagreed increasingly with his recent writings, partly in substance and partly as a matter of style and restraint. Indeed, in a close connection to the subject of the Slate dialogue, I have wondered whether Posner himself is not showing recent signs of decline--a question that I suggested is unlikely to be welcome in the legal interpretive community. As Posner has argued elsewhere, the subject of aging and old age itself is often and absurdly treated as "taboo." That's trebly true when applied to particular individuals and when, as with Posner, that figure has of late become a darling of liberals. (The same question is relevant to Justice Ginsburg, given not only her age but her increasing propensity for extrajudicial animadversions; Posner wrote in his book on aging and old age that the aged "have less incentive to conceal egocentrism and to engage in cooperative rather than self-aggrandizing conversation." But she too is treated by some as sacrosanct not a fit subject of the perfectly obvious questions one would ask about a parent or other aging loved one.) Not surprisingly, at least one person who disagrees in part with Posner's comments in the dialogue has suggested that Posner's comments reinforce his point about the need for mandatory retirement. 

I note my own previous questions about Posner's aging because, in my view, Posner is in fine form in this dialogue, and, to paraphrase an earlier post of mine, is much more right than wrong. Conversely and even more so, Judge Rakoff is much more wrong than right. Rakoff offers a number of defenses against mandatory judicial retirement ages. He argues that a number of federal judges "have served with great distinction into their 80s." He writes: "I respectfully disagree that Supreme Court justices don’t improve with age; on the contrary, many of them gain a broader perspective than they had when they went on the bench, and this enables them to pierce through the technicalities of which Judge Posner complains, so they can see the woods instead of the trees. As Justice Holmes so famously said, 'The life of the law has not been logic: it has been experience.'" He asserts that "in every country of the world, it has been the lawyers who have been in the forefront of confronting despots and promoting liberty." And he winds things up with this: "I’m sorry, Judge Posner, but in my mind, a love of the law and a love of liberty are inextricably intertwined." 

With all due respect to Rakoff, these statements are classic examples of what Posner likes to call "Law Day rhetoric"--the stirring language and windy invocation of broad but non-specific values that lawyers and judges use when reminding themselves and others of lawyers' vital importance . It's not that there's nothing to such values or statements. Motherhood and apple pie are both good things. But speeches invoking mom and apple pie don't tell us much about either. I would much rather live in a society with whatever "the rule of law" is than in one without it. But I'm not much impressed by general statements of this kind. In every sentence quoted above, I think Rakoff is closer to persuasion by cliche than to serious argument, and the arguments, such as they are, are more wrong than right. 

1) The fact that many judges have served with distinction into their 80s is doubtless true, but unhelpful and rather innumerate. Rakoff starts by citing what are generally agreed to be great judges in the first place, although Posner is right that their greatness is more assumed than proved and is overstated. Rakoff  gives us an imprecise numerator, and no denominator. He does not ask how many previously great judges declined, sometimes precipitously, with age. He doesn't show that those great judges remained great, as opposed to continuing to cast votes viewed by the interpretive community as great. Nor does he ask how much of the great work itself was done by law clerks, particularly in the later stages of those judicial tenures, and whether it might be cause for concern and an argument for retirement if the clerks increasingly did everything besides casting a vote. He says judges who fail are generally and gently removed by the chief judges of their district or circuit, but doesn't prove that this is effective and sufficient, and doesn't distinguish between judges who are clearly senile and more easily removed, and those who have simply declined enough to warrant retirement but might not be the subject of such efforts by chief judges, and might refuse under those circumstances.  

2) The assertion that Supreme Court justices "improve with age" comes not only with no denominator, but no evidence of any kind. I doubt its truth. I especially doubt the notion that they "gain a broader perspective" with increasing age. I think that is definitely true, but only up to a point. A judge may learn a great deal from ten or twenty years on the bench, because of the variety of cases she hears. (And the parties she encounters; but even district court judges are going to hear more from the lawyers than the parties. What parties do the Justices encounter personally?) But there is no reason to think that the learning curve is lifelong, or that it outweighs the eventual effects of decline, which may include fixity of views, tunnel vision, and other deficiencies. And there is something strongly lacking from this picture of judges gaining breadth of "perspective" and, to use the word from Holmes that he quotes, "experience" over time. Other than the variety of cases they hear, judges live cloistered lives; many judges complain in their memoirs and elsewhere about having to give up friends, associations, and other connections to the wider world. And it's a pretty privileged and princely cloister. It didn't take very much time as a law clerk for me to notice the air of deference and insulation from inconvenience that surrounds federal judges: the generous per diems, the potential for flattery from lawyers, law clerks, law schools, and bar associations; the habit of being called "Your Honor" by most of the people around them; the marshals waving them through the fortress of parking gates and detector machines in the courthouse. And that wasn't even at the Supreme Court level, which involves that level of deference, flattery, and insulation multiplied a hundredfold. The idea that judges eventually "see the woods instead of the trees" is dangerous enough on its own, since the trees are sometimes called statutes, precedents, procedural rules, and so on, and the woods sometimes amount to free-ranging views on politics and policy. But it's especially dangerous when combined with decades of relative isolation surrounded by legal courtiers. That's a recipe for hubris and judicial overreach, not "perspective." (Perhaps unfairly after that sentence, I note that Rakoff's relatively recent and now-frequent contributions to the New York Review of Books consist of broad-brush prescriptions for reform of the criminal justice system, the abolition of the death penalty, and so on. The prescriptions are less important than the question whether they should be offered by judges or fought over by politicians and citizens.)  

3) Spending enough time in this kind of environment can instill a tunnel vision about the relative importance of law, lawyers, and courts, as opposed to things like people, voters, and ordinary politics. Of course law and lawyers are important. The question is their relative importance, which can easily be overstated. Rakoff's generalization about lawyers being "in the forefront of confronting despots and promoting liberty" might best be viewed in that light. Posner responds, "I would like to see some evidence for this proposition, which strikes me, frankly, as preposterous." Preposterous? I don't know. Almost certainly vastly overstated? Definitely. And Rakoff's peroration about "a love of the law and a love of liberty" tells us nothing about either, and anyway has nothing to do with the possibility of judicial decline and the advisability of judicial retirement.

Posner has drawn the most heat for this statement in the dialogue: "It’s not true that . . . a decision must be supported by 'reason,' whatever that means exactly, to avoid lawlessness; personally, I prefer common sense to 'reason.'" I don't know whether the criticism counts as ironic, insofar as I see some of the adoring praise for some of his recent decisions as having more to do with their values and outcomes than the actual "reasons." I do think there are good grounds to worry about such a statement, especially from one who was criticized last year for what was taken to be a rather free-wheeling view of constitutional interpretation and followed it up this year with an opinion suggesting a fairly free-wheeling view of statutory interpretation. Without taking a view on any of that, I still think he is far more right than wrong in this dialogue--especially about the actual matter under discussion: the question whether there ought to be a mandatory retirement age for federal judges. But even that sentence is not half as objectionable as its critics suggest. I do think Posner's work on the bench has become too free-wheeling. But I also think that while providing reasons is a fundamental part of the American judicial process, it is easy to turn respect for "reason" into idolatry, to  think the "reasons" themselves do or mean more than they actually do, and to treat "reasons" as necessary while ignoring the question whether they are sufficient. (They are not: common sense is necessary as well, even if channeled through procedural rules, textualism, and other mechanisms, and even carefully elaborated and logical "reasons" are not necessarily reasonable.) 

Given that I've criticized Posner in recent years and suggested, not that he is unfit or hugely affected by age, but that it is not wrong  to ask such questions, I'm happy to find him in such excellent form in this dialogue. 

* As a side note, Posner was slated (so to speak) to be part of Slate's Supreme Court Breakfast Table this year, at least according to the first post. Unless I've missed it, I don't think he ended up contributing anything this year. Since I generally find him the only seriously interesting contributor sitting at the "Table," I was sorely disappointed by his absence. 

Posted by Paul Horwitz on July 10, 2017 at 12:11 PM in Paul Horwitz | Permalink | Comments (15)

Monday, June 26, 2017

A Small But Important Aspect of OT16: Resisting "Brilliant" First Amendment Arguments

Allow me to offer one discrete and fairly mundane observation about the Court's treatment of the First Amendment this Term. Last week, I thought the most important sentence in the Slants case, Matal v. Tam, was this one: "This brings us to the case on which the Government relies most heavily, Walker [v. Texas Div., Sons of Confederate Veterans, Inc.], which likely marks the outer bounds of the government-speech doctrine" (emphasis added). To that I would add a passage from today's decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, in which the Court distinguishes its earlier decision in Locke v. Davey. Neither of these moves is extraordinary, dazzling, innovative, or anything of the sort. Both are very much the stuff of standard case-crunching. But I think they're both noteworthy moves, in two respects.

1) Both of those cases, and especially Walker, are the subject or basis of efforts by some First Amendment scholars, particularly those of an expressivist and/or strongly egalitarian bent, to find brilliant new ways to apply and extend (their understanding of) the First Amendment. On this reading of the legal issues raised in cases like Walker, government would have an enhanced regulatory ability to avoid perceived "endorsement" of various values, or even a constitutional obligation to avoid "endorsing" or being seen as endorsing various values seen as anathema to particular social/constitutional values. One might see Locke as the basis of similar expansive efforts in the Establishment Clause area. On this reading, Locke gives ammunition for a broader argument that government can, or even must, regulate more aggressively, despite claims of equal access to funding or programs by religious individuals or groups, in order to avoid being seen as in any way "endorsing" religion or religious values. As my friend Marc DeGirolami summarizes this line of argument, "government conduct that is motivated by even the possibility that somebody might perceive religious endorsement (even if nobody actually has) is itself justified and validated by the Establishment Clause." Both cases are thus tools for creative, even brilliant, readings of existing First Amendment law and principles in a way that would give government considerable discretion, or even a positive obligation, to avoid "endorsement" of values that are actually or purportedly contrary to the (actual or aspirational) Constitution.

Of course I mean "brilliant" as both a sincere compliment and an expression of concern. The skill of some of this scholarship is great and it makes for thought-provoking reading. But there is now a long post-Daniel Farber tradition of recognizing the limits, dangers, and sometimes hubris and overreaching quality of "brilliant" arguments in constitutional law. However I might feel about it in scholarship, on the whole I would just as soon not have courts go in for "brilliant" extensions of First Amendment doctrine and "values." There is no particular reason to think judges or law clerks have the wisdom or skill or forethought about consequences to engage in these brilliant extensions wisely or well. There is little reason to think government will be wise in its use of such "nonendorsement" principles either; but at least those applications are subject to some political control and capacity for revision. Constitutionalizing the principles and turning them, more or less, into judicial mandates would eliminate that safeguard. I am not defending current doctrine; and for that and other reasons, I find much to think about, and therefore admire if for no other reason, in some of these brilliant arguments. But I think we would on the whole be better off if judges did not pay too much attention to them. Both Tam and Trinity Lutheran show little interest in these kinds of brilliant extensions, and some interest in foreclosing them. That, I think, is noteworthy in and of itself.

(On the other hand, I am perfectly amenable to smart and provocative scholarly arguments for fairly radical revision of constitutional doctrine in this and other areas. But I prefer such suggestions to be put explicitly as radical revisions, which are harder to put over quietly and thus require more debate and discussion before doing so. That is better than the strategic approach of treating clever or brilliant arguments for radical revisions as if they are implicit in existing doctrine, and thus are either already required or need just a little modest judicial work to achieve. The latter approach is much more elitist and anti-democratic than the former.)

2) These signals from the Court (if that's what they are) are also important for the Supreme Court's relationship with lower courts. In some of these areas, in my view, the lower courts have been much more receptive to brilliant arguments of this sort, and much more willing to apply them, despite and sometimes in fairly obvious if implicit disregard of the Court's own opinions and direction. The passages that I've identified in Tam and Trinity Lutheran show that these kinds of innovations won't find a Court that is eager to adopt them. I don't expect the lower courts to stop pushing their own visions just because the Court sends signals like this, or even stronger ones. The Supreme Court only takes so many cases; it only decides them so clearly and leaves lots of room for clever readings and exploitation of open spaces; there are many smart, driven, and politically committed lower court judges; and courts and judges, like the rest of the nation, reflect political and societal fissures. Lower courts do not have to read tea leaves if they do not want to, and sometimes it suits them not to do so. So I don't mean to overemphasize the importance of the signals here. But I do think both passages make clear that the Supreme Court won't give a friendly reception to lower court innovations in these areas.     

 

Posted by Paul Horwitz on June 26, 2017 at 12:07 PM in 2018 End of Term, Paul Horwitz | Permalink | Comments (1)

Thursday, June 01, 2017

On John Manning and Debts Past Repaying

I have often worried here about how small the American legal academic community is, especially given its multiple connections to the few elite schools. That said, much that happens within them, as in any other institution, shows generosity, kindness, and decency. And it is with that in mind that I say a few words about John Manning, announced today as the next dean of Harvard Law School.

In 1996-97 I was 25 years old, a Canadian newly moved to New York for an LL.M. at Columbia. An LL.M. in the US at one of the usual suspect schools was then regarded as the path to a teaching job at a Canadian law school. I hoped I might succeed in taking that path, and had no idea what Canadian hinterland I might end up living in and teaching at (to Torontonians, like New Yorkers, just about everything outside Toronto is the hinterlands), if I was lucky enough to get a teaching job at all. Columbia doesn't, or didn't then, have any thesis requirement for LL.M. students. But if I had to describe my year there, I would say I took a master's in legal interpretation. Among other things, I took a course in constitutional interpretation with Mike Dorf, a general course in legal interpretation with my friend and mentor Kent Greenawalt (as well as a life-changing course from Kent in law and religion)--and a course in statutory interpretation with John Manning, who was then teaching at Columbia, a few years before his repatriation to Harvard.

John's statutory interpretation course was relatively small--roughly 16 students, many of whom went on to do extraordinary things--and absolutely wonderful. It is still a model for me--an unreachable one--of excellent teaching. His use of illustrative cases was superb, his canvassing of the literature on statutory interpretation equally wonderful, and his willingness to give each basic theory its inning admirable. His own views are well known, but he didn't stack the deck and was delighted to be challenged by his students. (As an aside, I remember the night he took the class to a bar for an end-of-class get-together, and the feeling it evoked of Salinger's story "The Laughing Man" and "the Chief" at the center of that story.) I also took Federal Courts from John, and audited his administrative law class. He was incredibly dynamic in a large classroom, again a model I have tried (and failed, especially when it was difficult for me to stand or walk due to arthritis) to emulate. He strode the length and breadth of the class, untethered to notes, eloquent, excellent in his use of the Socratic method, and drawing in large numbers of the class. (The Mountain Dew helped!) John was well known as helpful to his students, and a long line of them invariably waited outside his office for the chance to chat with him.   

On the morning of my Fed Courts exam, I was cramming desperately in the Law School building and looked up to see John standing over me. He told me there was an opening for a district court clerkship downtown in Manhattan, and if I was interested he could set up an interview for me the next day; was I interested? Well, was I? Would I be willing to change utterly the expected course of my life and career? Hell yes, was my answer. (You can imagine my trouble concentrating on the exam at that point! I survived.) The interview didn't pan out, but with his help and encouragement I looked for off-season clerkship openings elsewhere.  Ultimately--and thanks to another friend, Trevor Morrison, then a graduating student at the Law School--I ended up interviewing successfully with Judge Ed Carnes of the Eleventh Circuit. During the interview, Judge Carnes made clear to me that John's glowing recommendation had counted for much. (My love of barbecue probably supplied the rest of the balance in my favor.) Although I'd been to Alabama, I certainly did not anticipate when I came to New York as a young man that year that I would end up living in Alabama, then or later. But there it was. My life had been changed. And one change led to another: practicing law in the United States in Washington; meeting in Washington, and marrying, my wonderful wife and partner in life; and ultimately finding some success in teaching law in the United States. When I spent a semester in the spring of 2016 teaching a class on the First Amendment and a seminar on oaths as a visitor at Harvard, much of the joy of doing so consisted in finding myself as an actual colleague to John, who had changed my life beyond all anticipation. Even now, I have just finished a semester of using his casebook and consulting his academic writing in teaching Leg-Reg. Throughout, John has been a warm, friendly, decent, and encouraging figure: one of three people (with Kent and Mike) in the legal academy, plus a half-dozen or so incredible orthopedic surgeons over the past ten-plus years, who have made this life possible.

I'm delighted for John, and doubly delighted for Harvard, at the news of his appointment. The limited and closely networked nature of the American legal academy leads to a lot of connections and a heap of public flattery. But it does not preclude genuine kindness, and the humble expression of genuine gratitude for kind acts. I can never repay to John, or to Kent or Mike, the debt I owe them. But ever since then, I have always considered it an obligation to them, and a fundamental part of my job, to try to pay forward their generosity and encouragement. On those occasions over the years when I have spotted some young person--a student, a junior scholar, even (or especially) someone I have never met but whose work I have admired from afar--and done what little can to encourage and advance them, to commend them or their work to others, and so on--any kindness or effort involved have not been mine but John, Kent, and Mike's. If I have occasionally helped someone else out, and I hope I have, it has really been John and the others changing someone's life yet again, albeit at one remove. We are an academic, scholarly, and human community, at our best, and the kind acts that made us a part of that community, when repaid, enlarge and strengthen that community. John is a friend, a mentor, a great resource as a scholar, and a model to emulate as a teacher and person. I am overjoyed by his appointment. May he serve well and happily.      

Posted by Paul Horwitz on June 1, 2017 at 11:58 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, May 31, 2017

Domestication or Absolute Resistance? A Semi-Supreme-Court Symposium Question

I'm not sure this post is a direct contribution to the ongoing Supreme Court symposium here. Indeed, insofar as it doesn't much address current decisions, except for those who are eager to read them as tea leaves for the future, it definitely isn't a direct contribution. But this basic thought has been on my mind for several months now, and although it's appeared here and there in recent posts, I wanted to put it directly in a post of its own. It certainly will be relevant for the next couple of Terms of the Supreme Court, and is far more relevant in watching the ongoing activity of the lower courts, whose work is largely separate from and often not even much influenced by what goes on at First Street. 

There has been a lot of talk, influenced by recent lower court opinions on the so-called travel ban (or, more propagandistically, "Muslim ban") and other administration activity, about lower courts developing a form of what some critics call "TrumpLaw," law responding to and designed especially for the Trump administration. Of course, like "Muslim ban," the label "TrumpLaw" is a form of propaganda, an attempt to argue a particular contestable point in the guise of merely describing an alleged phenomenon. But the phrase, or at least the basic thesis, should not be wholly anathema to supporters of the lower courts' recent moves. Many of them have made forceful, sometimes persuasive, arguments that the courts should act with particular regard to this administration and its actions and foibles--that, for instance, this administration requires a change to or total abandonment of the usual substantial judicial deference to actions and assertions by the executive branch. The difference, perhaps, is that "TrumpLaw" may be seen as a radical departure from existing law and in effect a lawless set of actions, while on a friendlier view, what courts do when they respond to actual circumstances on the ground is just "law" (pun on "just" intended), adapting itself to the circumstances. If the facts justifying the usual deference change, then the usual level of deference necessarily changes, and this is just regular law at work, not a departure from law. On this view, what courts are doing is fully in line with some classic views of separation of powers, in which one branch must perforce act when another branch shows flaws and failings.

As a matter of law and normative views, I have problems with some of what the lower courts have come up with, especially in the travel ban cases. But I am less concerned about that, or about "TrumpLaw" as such, than with the possibility that there is a lack of clarity and consensus about what "TrumpLaw" should be aiming to achieve. Where courts take even fully justified aggressive actions, there are reasons to worry about the precedent they are creating and its application in future cases. That concern eases or intensifies depending on what their goal or endgame is. And I do not think the lower courts either have a consensus on this or have even thought about it much in these terms. Like most of us (present company excepted, of course), they are responding to circumstances as they arrive, influenced by a fiery public discussion, and may think that the urgency of the situation takes precedence over such long-term thinking. I think that's dangerous. Without such a long-term vision, individual cases will build on each other and achieve momentum--maybe good, maybe bad. It is certainly worth thinking about these questions as they go about their current work.

Keeping in mind the usual shortcomings of binary descriptions of this sort, I think there are two possible goals lower courts--and eventually the Supreme Court--might be aiming at:

1) Domestication. Courts' responses to the Trump administration and its actions could be aimed at domesticating the administration. What I mean by domestication is that they could attempt to make the administration act more professionally and conventionally, to behave more like more establishment administrations rather than like an arbitrary, populist, or aggressive administration that is often at war with its own professional ranks (to the extent they exist in this understaffed administration) and seemingly eager to dispense with the conventional ways of doing things. Take deference. Faced with a problematic executive order, the courts could insist that the administration engage in more communication and consultation within the administration, and arrive at particular executive orders only after those orders have gone through the usual process of internal examination and criticism, careful drafting, proper legal advice, and the establishment of particular reasons for acting. They could, in short, use deference or the lack thereof to force the administration to go back to the drawing board and do it "right," or at least "right" in light of prior conventional executive branch conduct. There have been some traces of this in the opinions issued so far, which have, for instance, emphasized the lack of consultation within the executive branch and the shutting out of various participants in the usual policy formation process. But under the domestication approach, if the administration went back to the drawing board and complied with these instructions, the courts would then return to the usual level of deference, even in cases where the judges themselves might consider the substantive policies themselves ill-advised or worse. 

2) Resistance vel non. On one reading of the travel ban cases, including decisions at the appellate level and decisions dealing with the revised travel ban, the lower courts have gone beyond simple domestication as a goal. Their aggressive and creative use of doctrine has not been aimed at trying to make the administration more professional and conventional, while leaving it to make policy choices with which judges (and establishment figures, left and right) might disagree; rather, it constitutes utter resistance to the Trump administration and its policies. I mean this descriptively, not critically. Beyond the usual argument that even a conventional administration must be resisted when it trenches on individual rights (a superficially attractive point, although probably more questionable than this rhetoric makes it seem), one might argue that the worse and more dangerous the administration's actions are, the more necessary it is to resist them per se. Domestication alone, which would allow the administration to act dangerously while ensuring, by insisting on the kinds of procedures that insulate an administration action from aggressive judicial review, that the policies that result from it are not easily vulnerable to legal challenge, is not only not enough: it is positively harmful. The goal here is not regularity, consultation and communication, and procedural propriety without regard to substantive policy, but substantive "justice," with all the power and vagueness contained in that term. All this, as I say, can be argued to be justified. Its long-term implications, however, are more dangerous and suggest a potentially aggrandizing and openly political judicial branch, whatever the eventual policy or administration to which this approach might be applied. Beyond simple left-right division, it also suggests a strong resistance of the clerisy to any threats to the establishment itself. Although it might be aimed at even relatively conventional administrations, on the basis of ideologically driven policy disagreements, it certainly suggests a specific tendency to view populism itself as illegitimate and subject to aggressive judicial counteraction. That is a pretty strong normative statement, and one that it is harder to say is required by the Constitution itself.    

These two approaches can both be spotted in the travel ban cases and in much public and judicial commentary on the Trump administration. They will often overlap in particular cases. But they are definitely not the same, and the differences between them will become more apparent the longer the administration continues, and the more individual judicial decisions there are. Their long-term implications and costs and benefits are very different. As a general matter, I prefer the domestication model, and disagree with the current judicial decisions insofar as they show signs of resistance as such rather than a focus on domestication. But for present purposes I am not arguing strongly for one model over the other. I am open to arguments that domestication is not enough and that resistance is required, although I'm not convinced. And I am certainly open to arguments about the relative, and different, costs, benefits, and long-term dangers--not least to democratic legitimacy--of either approach. 

Regardless of my own position about which approach is preferable, I think these are the two main options available to the courts right now; that they are not the same; that each has its own positive and negative aspects and long-term implications; and that the courts themselves have tended to mix the two approaches without sufficient thought about which approach to take. I would feel a lot better if there were more open consideration, from judges, scholars, and commentators, about which goal to pursue. I think the better goal is to use legal doctrine to force the administration to do a more professional job, which in the end should place even terrible policies (constitutional concerns aside) more clearly in the realm of politics, not to be disturbed by the courts but rather left to the political branches and the public. It is certainly possible to think that an administration policy is terrible, the worst one has seen, while thinking it is sufficiently legally proper to be a matter of political debate rather than judicial intervention. But I am open to being persuaded otherwise. What worries me is the sense that courts are acting in the moment, without either considering these two different models or making clear which one they are aiming for. They should be more self-conscious about this and more transparent about their goals, even if that transparency makes the goal harder to achieve without critical reaction. In the meantime, rather than simply supporting or opposing these decisions tout court, scholars and public commentators (and, of course, the increasing number of public commentators who quite incidentally are also scholars, although not acting in an especially scholarly fashion) should put these ideas on their radar screen, be straightforward about their own preferences, and use these two models to provide a more sensitive analysis of the decisions we are getting from the lower courts. 

The connection to the Supreme Court, of course, is that as the Court is confronted with these and other cases, it too will have to come up with a general approach. Prognosticators who talk in general terms about who will "win" in these cases, generally by engaging in armchair analysis of the ambitions and fears of Justice Kennedy and a couple of other Justices--and often trying to signal Justice Kennedy that he must follow one path or another if he wants to secure his reputation and legacy or to manipulate him into a particular vote--talk mostly and only about the administration "winning" or "losing." But I suspect that if the Court does take on a more active role in response to this administration, the more important question will be whether a majority of the Court takes a domestication or a resistance approach rather than who wins or loses. Justice Kennedy, for instance, could vote against the administration while taking either approach. To the extent that they are not simply working the refs, and there is a lot of that going on, I think progressive "academic" writers engaged in public commentary, on Twitter or elsewhere, have been overly optimistic about the likely outcome of these cases. I think their predictions would be better and more thoughtful if they talked more about the kind of approach the Court should or will take in responding to the administration, rather than in terms of simple wins or losses. I think they would also be more influential in their efforts to sway the Court or individual justices. I think Justice Kennedy could be persuaded to engage in a domestication approach more easily than a pure resistance approach, and so could some conservative justices. Regardless, I think this is the question that confronts the Supreme Court, and I hope the justices and others think more, and more openly, about this. I do not assume one or the other approach will win permanent majorities. But I do think it describes what we will see happening on the Supreme Court over the next couple of years.   

Posted by Paul Horwitz on May 31, 2017 at 10:56 AM in 2018 End of Term, Paul Horwitz | Permalink | Comments (0)

Thursday, May 18, 2017

The "Fellowship Track": A Plea for Second Thoughts

Building on my earlier post and the comments on it, including mine: There is some agreement there, which I share, that a major contributing factor to the kinds of standardized rhetorical strategies and approaches we are seeing in a lot of (well-placed) law review articles these days--novelty or "under-theorized" claims that are excessive in quantity and substance; sometimes glib Clever Labels strategies; grand claims about the article's importance; overbreadth in treatment; efforts to turn (or portray) what might have been successful and modest "base hit" pieces into home runs, thus making it difficult to dig through the grand claims to find the valuable substantive core and raising the likelihood of fly balls; and so on--is the move to a fellowship model in training and hiring law professors.

As I say below, I think there are reasons for this move and that it has a number of virtues. But I think there has been too little consideration and open discussion of the model's flaws and dangers. In particular, those who run these programs and train the fellows at the high-ranked schools that generate many fellows, including the most successful ones, have not been terribly vocal in discussing what they do and its costs and benefits, whatever internal discussions they may (or may not) be having about them. That's especially dangerous because when it comes to hiring, faculties often consist of a few influential opinion-movers and a fair number of more passive voters, many of whom neither follow the trends closely nor think much about them. They also tend to follow the lead of the elite schools. That means a hiring trend can build easily and without much discussion, especially if the opinion-movers at the hiring schools are (as they sometimes or often are) just chasing the metrics or internalizing trends in the community, without second-guessing these criteria or the trend itself. And there a couple of other reasons, also covered below, why this trend can build without much second-guessing, especially public second-guessing.

One of my favorite movie quotes--I've used it in an article or two--is from Miller's Crossing: "I'd worry a lot less if I thought you were worrying enough." We're not worrying enough about this trend. I emphasize again that there are fair reasons for this model to develop. I'm not trying to throw out the baby (or the babies--the entry-level candidate/fellows themselves) with the bathwater. Criticizing an approach is not the same as urging that we get rid of it entirely. But we do need much more thinking and discussion, and more criticism, of the burgeoning fellowship model. 

As always, it's a long post. I've spared you by giving the thesis above. Read the rest at your leisure and at your own peril. Comments welcome.  

 The fellowship model can, on the whole, be seen as a kind of substitute or proxy for Ph.D studies in other disciplines. It doesn't serve all the same functions; perhaps most prominently, it's not clear that elite fellows at law schools generally use their time to acquire and absorb a canon, in legal scholarship generally or in their own field. But it does provide some of the other functions of a doctoral program. Perhaps most centrally, going into a fellowship program, one that increasingly lasts longer than one or two years and extends into quasi-post-graduate berths, serves the same winnowing and signaling function that a doctoral program does. A well-credentialed and potentially talented young lawyer who takes the fellowship path signals a strong interest in a career in legal scholarship and teaching, partly because he or she shows a willingness to take an income hit for the sake of a long-term academic career. (This also, on the margins after accounting for stipends and scholarships, makes it less likely that the entry-level population will be diverse across a range of levels, and more likely that it will be either relatively financially well-off, or that it possesses enough elite social capital to know about the fellowship path in the first place and successfully obtain a fellowship, or both.) Whatever earning capacity as a lawyer one of these fellows might have had if they remained in practice while writing on the side (which is difficult), they signal a willingness to abandon that path in favor of the academy. Indeed, by making themselves less employable in legal practice--why hire a former A student with a court of appeals clerkship under her belt as an associate when that person has been out of practice for two to five years? There are plenty of A or B students with clerkships who have remained in the actual practice of law--they show a willingness to burn their bridges out of the legal academy. That makes them surer bets for hiring law schools, especially given that tenure votes no longer serve a significant winnowing function for law schools. 

And, of course, they do research and writing while serving as fellows, learn about their subject (as an academic subject, at least), and sometimes publish superbly (by standard if flawed criteria). They also gain the time and resources to do empirical work that's difficult to do as a junior scholar working toward tenure and that many law schools are looking for in candidates. As or more important, they learn the "talk" and "walk" of the academic culture, and often get significant mentoring and advice about job-talks and other elements of the hiring process. By the time they go on the market, they look, talk, and walk like a law professor, have a better publication record than many existing professors, and have a demonstrable commitment to staying and working productively in the legal academy over a long time.

I won't rehearse the standard practical-vs.-academic or practice-vs.-theory arguments here. The fellowship model, and the law school hiring model generally, has routinely been criticized on this basis on the comment pages of every law blog. Without taking a strong position on that standard debate, I am glad the issue has been and continues to be raised, if not always terribly subtly or charitably. It more than deserves a place in the discussion. Happily, others have and will continue to cover that ground--and they should.

I will say that, keeping that debate in mind but in the background, all the elements of the fellowship model that I have described above, and no doubt other factors, are arguably positives. Although there is a tremendous amount to be said for hiring scholars who are also proven lawyers with serious practical experience and may keep a finger in that pie, there is also--to the extent we continue to insist on standard scholarly/academic criteria--a higher potential failure rate in such a crop. Entrants from such a pool may also take longer to get on their feet, while fellows are generally already well-published and well-prepared for the job. And, for historical reasons at least, law schools worry about hiring people who are "retiring into the legal academy," and who may turn out to be (on some measures) deadweight on the faculty for decades. Law schools have experienced many interviews and job talks by non-fellow candidates who are still very wobbly by standard measures. By contrast, the average level of quality and confidence of well-trained and mentored fellows is very high. 

I do not think any of these concerns are knockout punches in favor of the fellowship model or against hiring more practitioners, for several reasons. First there are the standard arguments in favor of practice and practical experience, which are out there and need not be rehearsed here. Then there is the question whether the "success" and "failure" we worry about are being judged according to faulty criteria. A practitioner-teacher may provide plenty of value to a law school and its students over decades, whether he or she publishes much or not. That's hardly "deadweight," although clearly some faculty, either of the practitioner or the scholarly model, do become deadweight. And one response to all this could be to actually take a chance on more non-fellow types, and use meaningful tenure votes to winnow out those who turned out to be bad bets by standard criteria, instead of acting as if anyone who has been hired and has managed to turn out three or four okay articles and average teaching evals has some kind of right to permanent employment. My basic point is that there are reasons to think well of the fellowship model. That is certainly true as long as we hold good scholarship to be a duty and desideratum in the legal academy, as I believe we should (which does not by any means rule out changing the mix to include more practitioner types). Let's give the fellowship model its due.

What, then, are the downsides, other than the standard practice-vs.-theory debate? There are quite a few, of which this is a decidedly non-exhaustive list. Others should feel free to supplement it. Some of them are "hard" points, and some are "soft" or more impressionistic or cultural points. 

1) Given the possibility that those who don't succeed in getting jobs in the legal academy after going the fellowship route may suffer diminished job prospects by taking themselves out of practice, we might be concerned about that, even if we treat this as a knowing and voluntary choice on their part. That's especially true if hiring numbers stay low relative to even the fellowship applicant pool. (As an aside, we certainly should have doubts about expanding fellowship programs, especially outside of the top five or ten schools. Those schools lower down the chain that have such programs might consider using them mostly to select and groom a couple of their best graduates with a potential interest in and talent for teaching, with an eye toward hiring those fellows at their own schools.) 

2) We might worry about what we are teaching these fellows. I will say it again: Every member of a hiring committee, and indeed every voting member of a law faculty, as well as the candidates themselves, should read Martha Nussbaum's classic short article Cooking for a Job: The Law School Hiring Process. Nussbaum asks whether the process is "effective in identifying good scholars, as opposed to good rhetoricians." She is concerned with the application of "nebulous standards": "items such as 'brilliance' and 'star quality' are frequently mentioned," and such standards are hard to pinpoint and subject to distorting influences. The process, she writes, favors "a certain type of individual, who combines obsequiousness with glibness and aggressiveness," over the reticent, shy, contemplative, but careful and sound scholar. Promising scholars may flunk "lunch," or the job talk, because they don't display a command of the bells and whistles of academic lingo or give a polished performance. Presciently, Nussbaum worried that such a process would "produce[ ] young scholars who have a confused sense of what their purpose is. Are they supposed to be good rhetoricians or good scholars? Are they supposed to spend years working toward a difficult truth, or to come up with catchy phrases and slogans that will market their ideas to an audience?" 

All these things are in evidence in the fellowship path and the performance of fellows in the hiring process. The careful mentoring, honing of the job talk paper, and multiple rehearsals of the job talk and interviews has resulted in an increase in the superficial average quality of our candidates. But many of the virtues we see are indeed of the rhetorical sort. Answers to tough questions are well-rehearsed and sound good. But are they good in substance? I routinely see well-trained fellows at job talks who answer one set of (supportive) questions by making grand claims about the importance and sweep of their recommendations, and then respond to critical questions about the implications or applicability of a paper by emphasizing the suddenly narrow scope of their paper and denying that it has any broader implications, or who appear to have never seriously considered those implications. Surely such answers suggest the surface-level strategics of the talk rather than a capacity for deeper reflection. Some of this is tied up with politics, but that is not only a matter of the actual politics of the fellows (generally one-sided) or their mentors (same, almost certainly exacerbated by the rise of fellowships in "centers" or programs that are quite explicitly political and favor only one set of views or policies, and whose fellows are treated at some level as shock troops being prepared for the legal academy). It's also, in part, a strategic decision to appeal to the legal academy's mostly liberal and reformist views. If the point of your paper is to recommend that the courts wield an enormous hammer, you ought to be prepared to consider when and whether it should or inevitably will be wielded for other purposes. I rarely find candidates who are willing to concede openly, at the risk of alienating politically like-minded members of the faculty, that the argument they have developed might be applicable for very different reasons by very different people, and who are then willing to discuss why the proposal is still worth it or indeed why that possibility should be welcomed. If more faculty at job talks were willing to cut to the jugular vein of a job talk paper (they often are not, or lack the expertise to do so; they may not even have read the paper), they would get at these issues better and demand deeper answers. Often the answers are superficially satisfying but not deeply serious. As I wrote, a lot of job talk papers coming out of the fellowship program are finely honed and look extremely impressive, but sometimes are seeming home runs that cleverly conceal a paper that is either a failed pop fly or a base hit with grandiose trappings.  

3) Tied to this point is the apparent reticence or, perhaps, lack of reflectiveness of the directors of the fellowship programs themselves. I want to tread carefully and not judge prematurely. Perhaps these directors (although they change often enough to hamper that sort of reflection) are thinking carefully about these concerns. But they certainly are not talking much about them, and certainly not openly and with the wider legal academy as an audience. It is, of course, possible that they are not reflective on these points, or that--especially as the legal academy comes to be filled with those who have already come through this process and internalized its values--they are not aware of them or deny that they are concerns. Add to this the understandable desire that their fellows should succeed in getting jobs. That means they will give whatever advice works in the hiring process. Over time, that advice, even if it was initially strategic and self-aware, will gradually and osmotically become part of the worldview of those directing and going through the programs. (Every fellowship program and mentor should devote some time to pushing their fellows to think about why all the advice they are getting may be wrong or dangerous for scholarship and teaching itself, and urging them to reach their own judgments when the time comes for them to make their own career decisions and vote on job candidates. Do they do this?) Elite law schools and professors, in my view and my partial experience, often have a fairly narrow range of focus and experience, and take for granted the standards that got them and their fellows where they are. Many or most of them know much less about life in the academic trenches at lower-ranked law schools than one might imagine. (Certainly my experience is that their advice to candidates choosing among job offers suggests just that.) It is easier for them just to see the successes and not count the externalized costs. They may lack the information, basis, or incentive to second-guess what they are doing and the kinds of lessons they are instilling. They may prefer "brilliance" over soundness because their own environment prizes brilliance.

4) As what I've said so far suggests, I'm worried in a more impressionistic sense about the effects of all this on the overall culture, both of the fellowship programs themselves and ultimately of the legal academy. As I wrote in my last post, I think it's only superficially cynical to think that most professors know what the game is and know that they are playing it, without buying into it, although a number of people have written to me to say just that. Such a position is possible, but contrary to human nature and difficult to sustain over time. Eventually, people internalize and rationalize the values they have been taught. They stop thinking about novelty paragraphs as a mere tactic, and grow to think of them first as a necessity and then as a virtue. They first over-value glib "brilliance," and then think of it as a sound criterion. It's not that they disdain substance, but it becomes easier for them to focus less on it or to forgive papers that are longer on brilliance than on soundness. That happens first at the level of the fellowship programs and their directors, and then at the level of the fellows they indoctrinate. Then those fellows seed the academy, and, lo and behold, many of them apply the same standards and replicate themselves when hiring new candidates. They treat the strategic choices they made to get a job as goods in themselves and as positive desiderata in examining new job seekers. Nussbaum's concerns become a cultural virus, and eventually just the way things are.

I said above the fold that there were "other reasons . . . why this trend can build without much second-guessing, especially public second-guessing." Let me build to my conclusion with some of those reasons. First, there's the Wizard of Oz problem. The elite schools that have fellowship programs and mentor fellows are offering strategic advice for fellows to help them get jobs, according to the criteria that law schools are likely to apply--or the criteria they think law schools are likely to apply, but this ends up becoming a self-fulfilling prediction. If they were to talk openly about some of these stratagems, let alone the problems with them, it would hardly benefit their fellows. The first rule of Fight Club is, well, you know. If they are reflective about these concerns, and I don't know whether they are or not, they have a strong incentive to keep it to themselves.

Second, the hiring law schools want to look good with their hires in everyone else's eyes. (Faculties also want to look good in their own eyes, and individual faculty members want to look good in their colleagues' eyes.) This favors taking the standard existing criteria for granted, no matter how much agreement there is that these criteria are flawed. Let me build on this with a hypothetical. 

Let's say almost everyone agrees that substance matters more than placement and that placement is a poor proxy for substance. They conclude that Candidate One, a fellow who has published in Virginia and NYU (these are randomly chosen top law reviews), is doing "brilliant" work but that the work is better at appealing to elite law review editors than it is good in itself. Moreover, Candidate One has given a nice polished job talk and has great recommendations from impressive mentors. By contrast, Candidate Two, who is in practice and has few or no influential mentors but has been noticed positively by people in her field, has published in Baylor and a tertiary Texas journal (again randomly chosen), and is more halting in her job talk. But there is real soundness behind the pieces, which are (commendably) narrow but excellent and suggest the promise of more genuinely valuable work being done on the subject. And the "halting" answers suggest a genuine willingness to grapple with real questions and to revise one's views as appropriate, or to acknowledge the costs of one's approach and/or be less bold and more narrow in one's conclusions. Which candidate to hire?

Hiring Candidate Two won't make a splash when it is announced. Candidate One is likely, because she is skilled at the relevant tactics and has active (and sometimes only semi-scrupulous) mentors who will lobby the law reviews, and because of the Matthew Effect, to continue to place well, although she may also continue to have a hollowness at the core of her work. Candidate Two, having started with lower-ranked journals, may remain ghettoized there, no matter how good her work actually is. Faculty members are often insecure about judging candidates, especially candidates outside their field. The fact that the elite world is ready to reward Candidate One, that she has multiple offers, and that this does after all suggest she will do very well by standard criteria, all may push the voting faculty toward the "safe" choice. Influential members of their own faculty may share a belief in the standard criteria and be highly concerned with metrics, US News rankings, and other elite measures. They will find it easy to ridicule the choice of Candidate Two as damaging to the law school's reputation and future in a competitive and reputation- and ranking-obsessed legal academic culture. Even if the faculty at this school strongly agree that substance matters more than placement and that "brilliance" is a snare for the unwary and status-obsessed, they know or believe that the rest of the legal academy thinks otherwise, and want to look good in the eyes of that community. These again are reasons to make the "safe" choice of Candidate One. And once one moves to actual hiring votes between two competing candidates, the discussion usually becomes polarized and exaggerated. The virtues of Candidate One will be exaggerated and extolled and her flaws, which are harder to pin down by reference to conventional external criteria, will be downplayed and excused as a function of youth. Candidate Two will be exaggeratedly dismissed as an also-ran or an unimpressive hire. Safety, insecurity, search costs, and peer pressure will lean in favor of Candidate One and against Candidate Two, especially if the knowledge that almost everyone who reaches a tenure vote succeeds makes it less attractive and more costly to take a "chance" on Candidate Two.      

Finally, and fascinatingly to me, there is the question of how such public discussions would be seen as affecting the well-being of the fellows themselves. Imagine writing a highly critical piece or, let's say, a post on Prawfs about the glibness and "brilliance" of candidates coming out of the fellowship market, and the dangers of such an approach and the criteria and standards of judgment that undergird it. Even if, as I have here, one makes clear that many of these candidates really are good and that the fellowship model really does have much to recommend it, the author can easily worry about whether he is sending a message to his recently hired colleagues or people he is about to meet in the next hiring season. I value all my new colleagues, whatever standards were involved in their hiring and whatever virtues or flaws they may have, and want them to feel welcome and supported. I may become good friends with them. That's even, or perhaps especially, true of those colleagues I might not have supported in the hiring process. Once the vote's over, everyone should rally round and do their best to support, encourage, mentor, and advance the career of the new colleague. I consider that a strong duty, and I think I have generally met it. But I also believe in the value of standing outside our hiring processes and considering and openly discussing our culture and the imperfect standards and approaches it embodies. That's a big part of why I still (occasionally) blog. If I don't want to risk offending a new or potential colleague, the greater incentive is to just keep my mouth shut and play the game, or at least allow the game to be played without talking about it. (Other than through cynical and knowing face-to-face gossip, which is plentiful and deplorable in the legal academy. Full many a candid, sometimes nasty but often informative, discussion is born to bloom in the faculty lounge and die unheard by the wider world.) And I am, I think, slightly more willing to air this kind of dirty laundry than many of my colleagues at large, some of whom are reluctant to do so, many of whom worry about offending others, and more than a few of whom are not especially reflective about these sorts of issues in the first place. Some might also worry that if they talked openly about these issues, mentors and program directors at elite schools might dry up the pipeline to their school, or that they themselves will suffer if they ever come up as lateral candidates or otherwise want to benefit from friendships and connections to the elite schools. I would like to benefit from those too! The academy fancies itself willing to speak truth to power, but that much less often embraces academics speaking about their own community and social and professional networks; then one suddenly hears a lot more about prudence and politics and much less about fearlessness or candor. The smart money and the prudent choice counsel silence, even for those who are interested in and self-reflective about these issues. 

I'll close where I began, by emphasizing that the fellowship model has much to recommend it, that the average level of quality and standardization in job candidates has increased dramatically since its rise, and that I am not urging us to get rid of it. Even some of those programs or individual fellows who exemplarize some of the flaws and concerns I have aired here are excellent candidates and strong scholars. Some of them have all the virtues and few of the flaws, and some have some of the flaws but many virtues, with the hope that the flaws will straighten themselves out with time and experience--although, as long as our culture doesn't change significantly, I'm worried that the latter is less likely to happen. Sometimes, maybe even most of the time, Candidate One actually is a better choice than Candidate Two.  

Nevertheless, there are genuine concerns to be raised about the fellowship track and the effects it may be having on the broader legal academic culture, especially when combined with such pre-existing factors as status and rankings obsession, the law review process, the outsized influence and often narrow perspectives of elite schools, and the culture and mechanics of the hiring process and of law schools themselves. Without treating the fellowship track and its rise as all good or all bad, we--and that includes the schools and individuals that run these programs themselves, and the fellows too--ought to be carefully and publicly toting up their costs and benefits, thinking and talking about their relationship to and influence on other aspects of the system, and considering whether there are ways to get more of the benefits while dealing with some of those costs. We have nothing to lose but our reticence. 

  

 

Posted by Paul Horwitz on May 18, 2017 at 02:45 PM in Paul Horwitz | Permalink | Comments (25)

Tuesday, May 16, 2017

Connecting the Law Review Dots

I quite enjoyed Benjamin's post on the overused "under-theorized" line in law review articles. As his link to an old post of mine suggests, it is on a topic dear to my obsessive little heart.

I have no great quarrels with his post, but I would suggest that there is no actual paradox at work. Perhaps there would be if calling something under-theorized were sincere and accurate most of the time that this language is used. But I suspect that it isn't. Sometimes, calling a topic under-theorized is just throat-clearing. Often, it's strategic rhetoric for purposes of placement. Much of the time, it is somewhere in between that and a slightly but importantly inaccurate way of defending one's decision to write about a particular topic. If, instead of the standard and ostensibly impressive-sounding--the less impressive the more often you see it; paragraphs that could be saved as boilerplate are not really impressive, but they are aimed at 24-year-olds who have not seen them hundreds of times before--"under-theorized paragraph," authors wrote what they actually mean, and in plain English, we would more often see something like the following: "[X] is an interesting topic. Plenty of interesting things have been said about it, but they have not exhausted interest in the issue (my interest, at least). Even if they have, I have a few things to say about it too." I would welcome that sort of candor, and less standard-issue academic verbiage. 

Benjamin's post is also arguably connected to Andrew's post about "game-changing" law review articles, as a commenter on that post suggests. And it is connected to another pet peeve of mine, also noted in the comments: the equally standard-issue "novelty paragraph." Law professors routinely write about issues that have been written about before--quite understandably, in my view, since little is new under the sun and people often like to write about old but big and interesting questions. But law professors also like fancy placements and the credentialization, platform, and opportunities for advancement that come along with them. There are three standard strategies for trying to satisfy both urges. First, one can claim--usually ridiculously--that this is the very first article to deal with X, or something of the sort. That's the novelty strategy. Usually and amusingly, the sentence asserting that an article is The First Article on a topic is accompanied by a footnote along the lines of, "Of course, there are honorable exceptions..." That footnote then lists some of the prominent prior articles that, as it turns out, also address the topic that this article is supposed to be the very first to address. Authors, it seems, are willing to do both things--to claim that an article is The First, and to cite prior articles on the same topic--and law review editors are willing not only to stomach this, but to reward them for it.

There appear to be few credible limits to this strategy. But in some cases, either the evidence of prior treatment is overwhelming, or the author has a reasonable amount of shame or integrity. In those cases, the thing to do is break out the second strategy: the "under-theorized" strategy. Yes, lots of people have written about X before. But X remains "under-theorized." And that is this article's reason to exist and claim its own share of the spotlight. The under-theorized paragraph is thus arguably a sub-category of the novelty paragraph. Or perhaps it could be seen as an alternative strategy for instances when a novelty paragraph would be glaringly false.

A third strategy, one that I think is increasingly popular but less noticed as such, is what we might call the taxonomical or Clever Label strategy. It bears some relation to the other two strategies. Yes, X has been written about before. Yes, it has already been "theorized" plenty. But this article offers a remapping of the well-covered territory, in a way that makes better sense of all those other articles that have come before. That's the standard taxonomical approach. Sometimes, the author will place such implicit stock in the new Clever Label that he or she will not even bother to concede that the territory has already been marched into dust. The implicit claim will not be that the new article is valuable because it offers a way of making sense of the issue that takes into account and builds on the earlier literature, but that the new Clever Label is so great that the label is the novelty. I love some of these articles; hey, the best of them really are clever, and sometimes really do usefully place the earlier literature in a new light, putting different approaches into conversation with each other in a new way. But I am extremely leery of those articles that, TED-talk-like, treat neat new labels and snappy, no-colon-and-subtitle-needed titles as genuinely new and profound substance. They often place well, however. So long as they do, they're not going away.

All of these are strategies for placing articles well, not for placing them as such. It is not hard to place an article somewhere. Rather, these are efforts to convince a young editor at a well-placed law review that the article under submission is not just a fine and creditable discussion of something that has been discussed before but merits continued discussion, but that it adds something sufficiently new and terrific to the mix that it deserves prestigious placement. Most scholars, if they're lucky, turn out singles and doubles, along with the occasional pop fly. Claiming that your article is the first, or the first to properly "theorize," or that it provides the niftiest new labels, is a way of trying to convince editors that everything you do is at least a triple, if not a home run. And that's the connection to Andrew's post on game-changing articles, and the comments on it. If the legal academy and its publishing arm were functioning reasonably well, we would look for a lot more singles and doubles--and in hiring new scholars, we would look for evidence that they could turn out a long succession of solid base hits. But entry-level scholars have for some time now been trained by their schools to turn out articles that at least look like triples or home runs. In reality, many or most of those articles are actually either easily fielded fly balls or carefully disguised singles. All those paragraphs up top--whether they involve novelty claims, "under-theorized" claims, or Clever Labels--are ways of making us think otherwise. It's far from clear to me that this is the best way to encourage good habits or sound scholarship.  

Note that I say "making us think otherwise." Usually, with legal scholarship being the comic and reformist industry that it is, this would be the point for someone to write about how peer review would solve all our problems, by putting into place a system that would not require scholars to aim all these strategies at easily cozened 24-year-old law review editors. That might be true in especially sober or empirically based disciplines. Articles like this make me doubt it is true for all disciplines. Much depends on the soundness of one's peers. And I think there are at least two problems with law as far as this is concerned. First, we appear to be impressed by these strategies. Authors of grandiose articles that provide the illusion of clearing the bleachers, and that place well, do well on the hiring market. It's not the 24-year-olds doing the hiring, so I don't think we can fob off our problems on them alone. Second, all this has been going on long enough that I fear we have internalized all these tactics. If we insist on hiring through the fellowship process, and if fellows are being trained in the use of these strategies, and if they then succeed on the hiring market and mentor and judge the next generation of applicants, then I see little reason to hope that peer review alone will save us from our own sins.

It might save us, if one adopted the cynical view that everyone realizes that these strategies are just that, and that many novelty claims and other such boilerplate should be disregarded in favor of a focus on the substance. But in a field in which everyone on the faculty judges specialist articles when voting on hiring, it's hard to judge soundly on the substance rather than the bells and whistles. And I think this is actually a somewhat naive, first-order form of cynicism. It assumes that everyone is smart enough to know better, and that they are also strong enough to act better when they know better. A more convincing cynical view, to my mind, would conclude that we are not always smart enough to know better; that we suffer from the same cognitive defects as everyone else, and thus are likely to fall for the same tricks as everyone else, especially if we have profited from and internalized those tricks; and that even when we know better, we may lack the strength of will to resist in the face of professional norms, the praise of recommending professors at big schools, and the votes and voices of other members of our own faculty. Even if I am usually aware enough of and peeved enough by the kinds of things I have written about here to spot them when candidates come calling, I am sure I am not always strong enough to stick to my objections in the face of those influences, especially when I know that the strategies work in the wider world and I would like my law school to enjoy enhanced prestige. And I do not think I am significantly weaker-willed than most of my colleagues. So I have little good cheer to offer, other than the faint suggestion that we ought to be spending more of our time looking for solid base hitters than for long-ball hitters. 

Posted by Paul Horwitz on May 16, 2017 at 06:18 PM in Paul Horwitz | Permalink | Comments (10)

Tuesday, April 18, 2017

From Jotwell: "What Will the Federal Government's Resistance to President Trump Look Like?"

My latest contribution to the Constitutional Law section of Jotwell is this piece, titled "What Will the Federal Government's Resistance to President Trump Look Like?" It follows in some senses from my earlier Prawfs post titled "Will the Civil Service Revolt, or Work to Rule, in a Trump Presidency?" It also emphasizes why I think Prof. Jennifer Nou has been doing great and useful work on this subject, and why I think the earlier article by Jessica Bulman-Pozen and David Pozen on Uncivil Obedience is useful and newly timely, even if I also spend a good deal of time in the jot on that article's critics. Some excerpts:

How should one respond to injustice, illegitimacy, or broader threats posed by a democratic governmental regime? Although readers may lump these items together, the commas and “or” matter here, for they are not all the same and the proper response to each may differ. One common answer to some or all of them is civil disobedience. Another, rendered more problematic by the democratic nature of the regime and perhaps by the relative lack of courage of the professional-managerial class, is open rebellion. A third possible response, Jessica Bulman-Pozen and David E. Pozen argued in a valuable, important, and still under-examined 2015 article, is uncivil obedience: a conscientious, communicative, reformist act of strict “conformity with . . . positive law,” “in a manner that calls attention to its own formal legality, while departing from prevailing expectations about how the law will be followed or applied.” . . .

Behind all this, obviously, is President Donald Trump: that extraordinary figure whose extraordinary actions have called forth—demanded, many would insist—extraordinary responses from citizens and scholars alike. Many of the most prominent responses to the new regime have come from citizens, albeit often fairly elite ones: marches, “days without [X],” lawsuits, and the usual collection of group letters, petitions, and op-eds. In that context, it is clearer that thinking about modes of response and resistance to this administration, including resistance within the executive branch, has a strong constitutional law component. (Anyway, as Adrian Vermeule recently observed, administrative law “is sublimated constitutional law just as constitutional law is sublimated theology.”)

Invoking Trump as a justification will no doubt win instant forgiveness for skirting or breaking various “rules,” both in the real world and in academia. As these thoughtful articles—two of them fortunately written before a sense of Trump-derived urgency began shaping and distorting public and academic discourse—demonstrate, however, it is unclear when, whether, and how such behavior should be treated forgivingly. Strategies of resistance shaped in response to exigent circumstances do not necessarily disappear when those circumstances do, and in the meantime they encourage retaliatory counter-strategies. And many citizens’—and academics’—passionate dislike of the administration may lead them to accentuate the positive aspects of these rule-breaking strategies while minimizing or ignoring the negative. This is thus simultaneously a good, bad, and necessary time to think both about both how resistance forms not only to but within the very organs of a constitutional regime, and about the potential dangers of those strategies. . . .

[T]hese resistance practices demand wide-ranging academic analysis, of a sort that neither ignores nor is driven solely by present exigencies . . . [W]e should be grateful that the study (and critique) of uncivil obedience came along when it did—“BT,” as it were—and that Nou continues the job in a calm fashion “AT.” We need much more of this.

Posted by Paul Horwitz on April 18, 2017 at 12:48 PM in Paul Horwitz | Permalink | Comments (0)

Monday, March 20, 2017

The Legal Academy Becomes More Like the Rest of the Academy, Part XVIIII

Via TaxProf Blog and the ABA Journal comes the news that the ABA's Council of the Section of Legal Education and Admissions to the Bar has proposed a rule change to the current ABA standard requiring that more than half of all credit hours offered by accredited law schools be taught by full-time, and hence generally "academic," faculty. The proposal would reduce the required number to one third. Some observations:

1) Interesting! We can expect some good healthy debate and controversy on this one, as well as a fair number of extremely flowery and high-minded statements.

2) None of the sources cited or linked to above offer a discussion of the reasons for the change. Perhaps there was lengthy and thoughtful policy discussion. It seems to me, however, that the reality is that whatever discussions took place were ultimately secondary to the pressure of events on the ground. This is a proposal driven by real or perceived economic necessity, and a desire to legitimate changes that either are already happening--or that might need to happen if law schools are to remain afloat while cutting to the bone. (Whether they should all remain afloat is a separate question.) 

3) On the whole and as an initial matter, I favor the proposal. In a now-ancient book review of Brian Tamanaha's Failing Law Schools, I wrote approvingly of Tamanaha's proposal that we "pare down ABA accreditation requirements that force law schools into a single educational model," so that some schools can maintain the traditional and more "elite" model while others offer a "cheaper and more practically oriented model." Under this approach, "[s]tudents interested in the latter model [would] not be forced to pay for the former," in the sense of having to meet the requirements of, and thus pay for, the elite model whether they want to or not. I noted the high-minded statements that appeared then opposing such a change, and doubtless will reappear in the current discussion, but disagreed with them. For reasons of institutional diversity, among others, I favor the possibility of different models and am not much disturbed by the objection--I would call it a description, really, instead of an objection--that it would lead to a "two-tiered" system. Among other things, I wrote that the objections gave insufficient recognition to "the reality that we already have a two-tier system, albeit one whose pretenses of uniformity drive up the costs across the board." Nor was it clear to me why "a less academically driven legal education would be a 'second-rate' one," as the opponents of such a change argued. For many students and schools, it might be the better education. 

I am still so minded. The usual tendency, at least until 2008 and still to a substantial extent, is for every school to want to be and look like Yale or Harvard, no matter how little sense that makes for particular schools in particular places. (I am reminded of Tom Wolfe's description of Yale architecture students puckishly drawing illustrations of the then-chic "Yale box" appearing on the moon, on the farm, and in other unusual and inapt places.) This is partly a function of law schools' absurd credentialism, lack of imagination, and hierarchy-reproducing tendencies when it comes to hiring and the highly limited backgrounds and cultures from which most law professors spring, and partly a function of their attention to US News rankings and general desire for elite status (for the schools and, just as important, for the faculty themselves). As I wrote then, whatever their deepest wishes, many law schools have already bowed to reality and departed from some of these norms. The proposed rule change gives them more liberty to do so, without requiring it. If some law schools adopt a more practice-driven approach and rely more on practitioners to achieve it, while others are or can afford to emulate the model of a few elite schools, so much the better for institutional diversity and student choice.

4) Schools that take advantage of this model and adopt a more adjunct/practitioner-oriented faculty model, with a smaller academic faculty core and a larger store of adjuncts, will still face the need to do what too few have done: to think creatively and comprehensively about how to turn this congeries of commuters into an actual law school community. They must think about ways to bring those commuters into the school more often, make them a larger part of the intellectual and daily life of the school rather than an afterthought, include them in faculty life and discussion and decision-making, and give them a sense of being members and stakeholders of the law school community. It's a difficult but necessary task to undertake. One assumes that there are various ways to achieve this, and they need not all look the same. 

5) In at least some ways, what happens in the law schools follows what happens in the larger academy, but at a distance--sometimes a great distance. Thus, years after the standard graduate-school model of generating future faculty became the norm for most academic departments, in the past ten or more years law schools have drawn increasingly, when hiring, on fellows and fellowships, which are essentially an echo of or proxy for the graduate-school model. This model creates and seeks out a store of future faculty who are professionalized and acculturated as academics rather than practitioners or amateurs, and who have long since signaled their willingness to forego legal-professional status and income in favor of becoming academics. (We still see arguments that law faculty are foregoing what would otherwise be high-income jobs that would readily be accessible to them. That might be true at the outset of their legal careers, after they have graduated and clerked and perhaps spent a couple of years in practice. By the time they have devoted years to academic study and status, however, they have long since made it more difficult to move into the world of practice, for better and worse. This might justify lower salaries for academic law school faculty members, although that's a question for the market to answer, not for abstract and non-empirical arguments about what these individuals "could" do if they wished.) That makes them surer hiring bets, at least as "academic" faculty, for multiple reasons: they have already published, they already talk the talk of the academy, and they have already made clear their long-term intentions to remain faculty members rather than abandoning the academy for professional work or retiring from practice without contributing greatly to "academic" work.  

This new proposal similarly recapitulates the larger changes that have been written about  and debated so much in the wider academy: namely, the part-timing or adjunctification of the university. Some of the rea$on$ for doing so are no doubt the same, and we can expect some of the same arguments--very real ones, I should acknowledge--to arise here: arguments about the potential for abuse and mistreatment, lack of quality control, corporatization of the university, and so on. I think we should think of this as a partial recapitulation of what has happened elsewhere in the university. But we should not treat the two phenomena as identical, by any means. There is a difference between relying heavily on adjuncts with Ph.D's to teach, say, English Literature, and relying heavily on practicing physicians to provide clinical and practical education to medical students. An adjunct literature professor is generally just a literature professor without job protection; a practicing physician serving as a clinical professor of medicine has another job and set of skills that both maintain his or her independence and provide something distinctive of value to the medical school and its students. Law practitioner adjuncts are closer to the latter analogy than to the former. Not all of the arguments against the mass use of adjuncts elsewhere in the academy will fit in the law school context, and they should not just be parroted here thoughtlessly. But of course we should discuss and think through the implications of changing our model.

* * * 

I should note that I am surely an "academic" faculty member, and some of what I say above is hardly in my own interests. I am happy to try to maintain my own salary and other perquisites, and--although slowed recently and to my own profound guilt by illness--I like being an "academic" academic, want to contribute to the academic and scholarly life of my school and the larger community, and think this life has intellectual value and the capacity to contribute to our intellectual tradition, although I resist making overblown arguments about its immediate or "real-world" value. (I am not averse to changing things up, however, and certainly think there ought to be room for rethinking how each faculty member shapes his or her career. Perhaps sabbaticals should be given more frequently but with the caveat that every other sabbatical must be spent volunteering or practicing as a lawyer; or perhaps the obligation to do something of the kind could be tied to the reduced course loads most of us enjoy. No matter how ethereal some of us have become in our work, we might find work as clerks or runners or junior assistants to state legislators; even spending every day for a year sitting in a courtroom and watching arraignments and pleas would be of some value in enriching our perspective.) I just don't think my own interests, or those of other "academic" legal faculty, are especially important factors or relevant to the analysis.   

        

Posted by Paul Horwitz on March 20, 2017 at 10:29 AM in Paul Horwitz | Permalink | Comments (0)

Tuesday, March 07, 2017

Some Suggestions for Dean Emperor Caron and the Buzzworthy New Regime at Pepperdine

As Brian Leiter enthusiastically announces, tax-law-blogger and blog-impresario Paul Caron, nicknamed in Frank Herbert fashion "Blog Emperor Caron," is about to become "Dean Emperor Caron" at Pepperdine Law School. Before taking a puckish turn with this post, let me say that of course I add my congratulations. I have found Paul lovely to talk with in person and via the occasional email and such. Among his many posts at TaxProf Blog over the years, a great number of them have evidenced his warm and caring relationship with his students and his abiding concern for them. I don't doubt he'll bring that same sensibility to his job as dean. Best wishes, Paul! 

The thought did strike me upon his announcement as dean: Given the blog empire he has long been associated with, what if Pepperdine under his administration decided to deemphasize US News Rankings as a major metric, and focus instead on things like page hits and buzzworthiness? To that end, may I suggest that we offer as a gift to the incoming dean some possible "buzzworthier" titles for courses in the standard law school curriculum. I'll start the ball rolling with two suggestions:

Contracts: Henceforth to be renamed in the Pepperdine curriculum and course catalog "Will This Fantastic New Medical Treatment Keep Your Hands Looking Young and Lovely for Life?" 

Civil Procedure: "86 Ways to Triumph in Court. You Won't Believe Number 56!"

 

Posted by Paul Horwitz on March 7, 2017 at 01:22 PM in Paul Horwitz | Permalink | Comments (5)

Monday, February 06, 2017

Lewis & Clark Law Review on "Law and Religion in an Increasingly Polarized Society"

The Lewis & Clark Law Review, under the supervision of some superb student editors and Prof. Jim Oleske, has just published a superb symposium issue on "Law and Religion in an Increasingly Polarized Society."* The contents are below and can be found here. The writers include Kathleen Brady, Kent Greenawalt, my colleague Ron Krotoszynski, Marc DeGirolami, Robin Fretwell Wilson, and others. I haven't read all of them yet, but what I have read has been very interesting.

In my rather rough and general opinion, the symposium is highly and obviously timely, and yet comes at a particularly difficult time for those who would attempt to predict the course of law and religion jurisprudence right now, precisely because of both increased polarization (at least in some sectors of the population) and the ways in which the nature and subjects of that polarization have altered dramatically in the past few months. If Hillary Clinton had won the election and depending on the composition of Congress and of political power in the states, we might have expected a more or less linear or steady progression in the kinds of issues and the sorts of debates that had been occurring in the past few years. It's less clear to me that that continues to be true. I agree with those who argue that current events and political outcomes are a continuation of rather than a break with the culture wars; and I think that even if events were taken to mean that the "losers" in that war were suddenly winning and vice versa, but without much else having changed, it would be more or less possible for the discussion to continue along a similar path to the one it had taken. I'm far less certain that that is currently, clearly the case. One needn't conclude that that is either a good or a bad thing, except insofar as unpredictability is itself a major problem. But the issues may change, the intensity and focus may shift from one area to another, and the ability to frame those issues within some kind of "culture war" might need to wait for a clearer picture of where and how that war is being conducted.

My general sense is that even prior to the last few months, there has been some enervation in the field. Law and religion scholars' responses to this enervation have varied. Some have focused their attention on other subjects altogether, outside of law and religion. Some have focused more narrowly on doctrinal questions, sometimes as a way of fighting the legal battle as tenured partisans and sometimes because doctrinalism in such cases can be a way of addressing interesting and pressing "little" questions while avoiding the big questions. (Query how much it is possible to say about the "little" questions if it is the "big" questions that are driving them.) Some may continue writing in the field but shift their attention to other areas, such as standard, good-old-fashioned Establishment Clause questions. (Vouchers!) Some may refocus on larger theoretical questions, abstracting away from particular controversies; I rather hope they do. I think those (and I would characterize some of my recent work in this way) who have tried to stand outside the actual combat and think about the cultural and sociological context of these controversies must perforce remain in a holding pattern on that kind of work until the ground becomes clearer again; at least I think that's the appropriately modest and sensible thing to do, if you're interested in those specific questions. (That said, I have a review essay coming out that at least tries to evaluate where we stand right now and the relationship between recent upsets in the culture wars and law and religion. Like any piece on these issues written between October 2016 and January 2017, it is even more uncertain in its conclusions than usual.) 

All this is by way of context and some general observations on the state of the field. To say it's an uncertain time for the field is not to detract from the symposium itself, which contains some excellent contributions and is well worth taking a look at. Congratulations to Lewis & Clark and the journal editors, as well as the contributors, for this fine collection.  

Here are the contents:

ARTICLES

The Disappearance of Religion from Debates about Religious Accommodation

Kathleen A. Brady

20 Lewis & Clark L. Rev. 1093 (2017)

Religious Accommodation, Religious Tradition, and Political Polarization

Marc O. DeGirolami

20 Lewis & Clark L. Rev. 1127 (2017)

Religion and Polarization: Various Relations and How to Contribute Positively Rather than Negatively

Kent Greenawalt

20 Lewis & Clark L. Rev. 1157 (2017)

Kingdom Without End? The Inevitable Expansion of Religious Sovereignty Claims

B. Jessie Hill

20 Lewis & Clark L. Rev. 1177 (2017)

If Liberals Knew Themselves Better, Conservatives Might Like them Better

Andrew Koppelman

20 Lewis & Clark L. Rev. 1201 (2017)

Agora, Dignity, and Discrimination: on the Constitutional Shortcomings of “Conscience” Laws that Promote Inequality in the Public Marketplace

Ronald J. Krotoszynski, Jr.

20 Lewis & Clark L. Rev. 1221 (2017)

The Mystery of Unanimity in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC

Ira C. Lupu & Robert W. Tuttle

20 Lewis & Clark L. Rev. 1265 (2017)

A Regrettable Invitation to “Constitutional Resistance,” Renewed Confusion over Religious Exemptions, and the Future of Free Exercise

James M. Oleske, Jr.

20 Lewis & Clark L. Rev. 1317 (2017)

The Nonsense About Bathrooms: How Purported Concerns Over Safety Block LGBT Nondiscrimination Laws and Obscure Real Religious Liberty Concerns

Robin Fretwell Wilson

20 Lewis & Clark L. Rev. 1373 (2017)

* A personal and embarrassed note, which is sincerely meant as the opposite of a #humblebrag. I was asked to contribute to the symposium, and ended up repaying the editors' kindness and generosity with...nothing. Doubtless recovering from surgery didn't help, and certainly some of the questions of uncertainty that I discussed above contributed to my wavering, but I am still embarrassed at my failure to contribute, aside from my regret at not joining such distinguished company. Surely if there is a personal lesson, it is that it is better to say "no" to an attractive invitation than to say yes and then vacillate. Clearly, judging by the contents of the symposium, I would not have added perceptibly to what is already a very good and broad collection of articles.  

Posted by Paul Horwitz on February 6, 2017 at 10:51 AM in Paul Horwitz | Permalink | Comments (0)

Friday, February 03, 2017

Constitutional Limits on Delaying or Denying a Hearing and Up-or-Down Vote on the Gorsuch Nomination?

My view during the Garland nomination was that the Republican refusal to grant a reasonably timely hearing and an up-or-down vote on that nominee was deplorable but not unconstitutional, and that such arguments as they provided to justify it were rationalizations, not good reasons.* I think that Democratic refusal to grant a timely hearing and up-or-down vote to Neil Gorsuch is also not unconstitutional, while setting aside for the moment whether it is deplorable or not. On the whole I think it is dangerous, although I understand the arguments that it is justified by the prior conduct. Many constitutionalists agree with me both that the obstruction of the Garland nomination was bad but constitutional, and that obstruction of the Gorsuch nomination would also be constitutional (and possibly bad, although there will be greater variation in views on that question).

But it is striking, in going back through the Garland debate, to see just how many law professors (and others) argued that the refusal to grant a hearing and straight vote to Garland was not just deplorable but unconstitutional; not just unconstitutional but clearly unconstitutional; and not just clearly unconstitutional, but clearly  and unequivocally unconstitutional, which is to say admitting of no clear exceptions, or no exceptions at all.

Here are only a few examples. 1) A letter by around 350 law professors publicized by the Alliance for Justice asserted that there was a "constitutional duty to give President Barack Obama’s Supreme Court nominee a prompt and fair hearing and a timely vote." "The Senate’s obligation in this circumstance is clear," the correspondents argued. "The Senate must not defeat the intention of the Framers by failing to perform its constitutional duty. The Senate Judiciary Committee should hold a prompt and fair hearing and the full Senate should hold a timely vote on the president’s nominee." The writers included some highly qualified and respected constitutional law scholars, including Laurence Tribe, Kenji Yoshino, Erwin Chemerinsky, Rebecca Brown, and Linda McClain. 2) Also under the AFJ, a letter from some 58 Indiana law professors argued that "an outright refusal to even consider his nomination runs counter to the Senate’s obligation, under Article II of the Constitution, to provide 'advice and consent.'" Its conclusion stated: "Chief Judge Garland is an eminently qualified nominee who deserves fair consideration of his nomination. Refusing to do so is an abdication of the Senate’s constitutional duty to provide advice and consent." The writers included a former head of OLC. 3) The AFJ publicized a similar letter from a similar number of Ohio law professors. Its language mostly tracked the Indiana letter. It concluded: "The Senate must perform its constitutional duty and deliberate over Judge Garland's suitability as a Supreme Court nominee. Holding a hearing and an up-or-down vote on his nomination are how the Senate does its job. Refusing to consider the Garland nomination on its merits would be an abdication of the Senate’s constitutional duty to provide advice and consent." 4) A letter from 43 current and former law school deans was, in fairness, cloudier in its arguments, but suggested the belief that there is a "constitutional duty to ensure a fully functioning Supreme Court," that this includes a constitutional duty of "holding hearings and providing an up-or-down vote on [a] nominee," at least where there is an eight-member Court. It added more straightforwardly that Article II, section 2 of the Constitution operates "without qualification." 5) In the Chicago Tribune, Professor Geoffrey Stone wrote that "it is [Senators'] constitutional obligation to have a fair and open hearing and to vote to confirm Garland." Note that Stone went further than his colleagues, arguing not just that there is a constitutional duty to provide hearings and an up-or-down vote but that, depending on how you read his op-ed, either as a matter of well-established practice or as a matter of "well-established constitutional tradition," the Senate must confirm any "well-qualified and reasonably moderate" Supreme Court nominee.

No doubt others could find more, and still more emphatic, examples. Although it's an obvious point, it's worth stating that no one put a gun to anyone's head and insisted these writers sign on to a constitutional argument of this sort. They could have said nothing, or argued on non-constitutional grounds, including grounds of traditional or optimal Senate custom and practice. They didn't. The fairest and most respectful reading of their action, therefore, is that they considered what the letters said before signing them and believed what they said, and that they should be treated as such.

Given what they wrote, I find it difficult as a matter of constitutional law (on their understanding, not mine) to conclude that there is not an identical constitutional duty in this case to provide a fair and timely hearing to Neil Gorsuch and an up-or-down vote on his nomination. (Possibly, on Stone's view, there is also an obligation to confirm him, although the "well-qualfied and reasonably moderate" language allows for some wiggle room, albeit one assumes it should not be used disingenuously). Of those several hundred signers, one would expect at least a few of them to say so equally publicly, and none of them to contradict their earlier reading without persuasive and sincere reasons to do so.

To be clear, I am not making--am frankly not interested in--charges of "hypocrisy," a move I generally find overused and under-important and try to avoid, and one for which I would have no grounds unless there was clear evidence that they were ignoring or contradicting their earlier-stated views. I am, instead, interested in the fact that this was a large group of law professors voluntarily making a constitutional argument; interested in the obvious implications of this boldly and broadly stated argument in the current case; and interested in whether they will follow through on their own presumably sincere professional constitutional views.

There are a couple of possibilities for action and a couple of colorable, although I think not plausible, counter-arguments. The writers are not obliged to say anything at all about the Gorsuch nomination, or to make any arguments in particular about whether Democrats can delay, resist, or deny a timely hearing and up-or-down vote on Gorsuch. They could write about other aspects of the nomination, or write only about the Garland debacle, or remain silent altogether. Given how strongly they asserted a broad and relevant constitutional principle, this would be unfortunate and suggestive of an unwillingness to speak truth to power. But it is an available option: the best option they have, I think, and the one most consistent with scholarly consistency if not integrity.

Then there are the usual "this case is different" arguments,* and the argument that delay or denial of a hearing or up-or-down vote in this case would be constitutional as a "remedy" to the earlier constitutional violation. I find neither line of argument especially plausible given the earlier assertions. Those arguments, on my reading and I think on any clear reading, were that Senators have a clear constitutional duty to provide a hearing and up-or-down vote to Supreme Court nominees, that the obligation is unequivocal, and that there is no right to ignore it, let alone to do so because you don't like the party in power or the nominee. Of course, one can argue that the Senators should fulfill their duty and then vote against the nominee. (Stone may be barred from making this argument, as we saw, depending on how he uses his wiggle room. Again, I think that wiggle room must be used with integrity.) But I think any fair reading of their earlier statements makes clear that they must believe the same duty applies here. Language like "admits of no qualifications" suggests that simply arguing that obstruction here would be justified in light of the prior obstruction is impossible to square with their apparent constitutional views.

And there are multiple problems with the "remedy" argument. For one thing, most of the time, constitutional lawyers argue, rightly or otherwise, that constitutional "remedies" must not themselves violate clear constitutional rules and duties, and people will go to some lengths to argue that an apparent constitutional violation for remedial purposes is actually consistent with a fair reading of the constitutional text. For whatever reason, constitutionalists generally avoid arguing that some action violates the Constitution but is justified nonetheless. Arguments in anti-discrimination and affirmative action law, for example (and with a good deal of generalization), generally assert that when race-conscious government action is employed for remedial purposes, it is constitutional where the remedy is aimed at addressing identified discrimination that continues to affect individual rights and is closely linked to ongoing governmental actions and effects. That is not an argument that the race-conscious remedy is unconstitutional but justified, but that it is not unconstitutional in that particularized context. It does not apply to this context clearly, if at all. It would certainly be a miracle if all of the several hundred letter and op-ed writers concluded otherwise. Moreover, it is much fairer to call any obstruction of Gorsuch a response to the Garland situation, not a remedy.        

One could argue--at least one writer on the constitutional law listserv has done so--that obstruction in this case would be unconstitutional, and that advocates of responsive or "remedial" obstruction in the Gorsuch case should say so in clear terms and argue for it just the same. This has the virtue of transparency and consistency, of forcing its advocates to think about the circumstances in which the Constitution can or should be violated as opposed to massaged or reread, and of being willing to convince fewer people that the "justified violation of the Constitution" argument is right--and risking the possibility that some readers will draw the conclusion that any violation of the alleged constitutional duty of a hearing and up-or-down vote with respect to Gorsuch is just that, and cannot be justified. It would sacrifice political effectiveness for candor. I might not agree with such an argument, but I would welcome having that view aired clearly and publicly. 

And, of course, if nothing else, there is a forward-looking possibility, which is that we should--once again--rethink our duties and obligations with respect to signing letters, writing op-eds, and making other public arguments. We could confine ourselves only to those arguments we are sure are right, refuse to sign letters or (especially) write op-eds where we are uncertain their arguments are right, use the narrowest possible arguments we are convinced are correct, and then hold ourselves to those views or clearly and publicly explain why we have sincerely changed our minds. 

Again, I make no accusations of hypocrisy or, more important to me, of a failure to make arguments in this case that are consistent with one's clearly stated constitutional views, which is important not for what it says about hypocrisy but for what it says about constitutional and scholarly integrity. To so do, I would have to wait and see how the Senate acted, and then examine every writer's publicly stated views in this case to see whether they followed their earlier views, skirted them, remained silent about those specific issues or about the Gorsuch confirmation process altogether, or offered sincere and persuasive justifications for a change in view. I have seen a couple of Twitter feeds from prominent figures who signed at least one of the documents listed above in which the new statements seem to be in tension with their earlier views. But they may yet qualify their positions, offer sincere and persuasive justifications for any alterations, recant their earlier or newer statements, or even come out in favor of timely hearings and an up-or-down vote on Gorsuch's nomination as a matter of constitutional duty. I do think, however, that what they wrote earlier must be treated as meaning what it said and as a statement of their own sincerely held constitutional views; that any fair reading of those views suggests that, absent some very good reasons, they must urge, or at a minimum not oppose, a hearing and up-or-down vote for Gorsuch; and that any direct contradiction of those freely, voluntarily offered views would raise fair questions about their constitutional views, constitutional and scholarly integrity, or reliability as experts and public commentators. 

 

* As a relevant aside, among the epistemic and rhetorical battles we fight these days, about "fake news," "alternative facts," and the like, there is another problem that I think is both more significant and widespread and much less discussed. That is the profusion of the kinds of arguments, rationalizations, justifications, and rhetorical tactics that are characteristic of both some lawyering and much forensic debate. The problem is not that they are valueless, but that they are much less valuable and much less genuinely respectful of serious attachment to either facts or reasoned elaboration than they appear to be, much more susceptible to "bullshitting," and in the end, in my view, more damaging than some fake story on Facebook to serious discourse or an attachment to integrity and seriousness in thinking and argument. Political argument is not or needn't be legal argument, and legal argument is itself often highly problematic. Once again, although the classic adage is that we are all Legal Realists now, and a few people argue that critical legal theory has not died but been absorbed into general legal thought, I find on the whole that lawyers and law professors at least appear to have internalized very little of the lessons of Legal Realism or CLS, and retain in thought and deed a surprising attachment to the appearance of "reasoned elaboration." Perhaps it ill-behooves a lawyer and law professor to say so, but I think this is a dangerous mistake, especially when this kind of approach to argument increasingly emigrates from the courts and colonizes public and political discussion and debate. 

Posted by Paul Horwitz on February 3, 2017 at 08:53 AM in Paul Horwitz | Permalink | Comments (3)

Monday, January 16, 2017

AALS as Trade Association vs. Learned Society, and Whether or How it Matters

This is my last post, God willing, on the AALS annual meeting. In my first post, I argued, in a nutshell, that the AALS is the American legal academy's learned society; that this is a reason to welcome and defend it against its harsher critics; that the AALS or individual executives, treating the organization more as a kind of trade association than a learned society, "have sometimes been too willing to cast themselves in the role of defenders of and advocates for law schools and legal education, rather than academicizing these questions and treating them as subjects for dispassionate and disinterested study"; and that this reflected itself this year in the annual meeting theme, "Why Law Matters," which a) assumed the answer to a genuine question and b) focused in substantial part not on why law matters, but on why American legal education and law schools matter. I did my best to display some sympathy and understanding and to recognize some of the organizational dynamics that push it in this direction, but I was still critical. 

In response, a couple of posters here and elsewhere, and one commenter on my post, pushed back on the assumption that the AALS is a learned society rather than a trade association. Mark Tushnet wrote at Balkinization that unlike most academic learned societies, the AALS is organized by law schools rather than by law professors, and said that "[t]he AALS's structure means that it almost necessarily must be something like a trade association for law schools--perhaps with something like a learned society attached to it once a year." "There is in fact," he said strikingly, "no 'learned society' for legal academics." Given that, Tushnet argued, "it's actually something of an achievement that the AALS's annual program has become as intellectually substantial as it is now." Here at Prawfsblawg, Dan Rodriguez offers a short post worth reading in its entirety. Here's a substantial chunk of the post:

[The AALS] is an association of law schools, not an association of law professors. Always has been. Perhaps there is an important place in the academy for an organization of law professors (other academic professions have such associations), but that is not the mandate, the purpose, or the function of the AALS....Prof. Mark Tushnet got us nicely riled up many years ago when he set out as the theme of his presidency, the idea of the AALS as a learned society. Whatever power this had as a normative prescription, and as an exhortation to improve the academic programming of the annual meeting and other AALS conferences, it created a trap to which Paul and other distinguished law profs have fallen into, which is seeing the AALS as an entity whose primary purpose is providing professional development opportunities and good intellectual content for a hungry professoriat. Worthy endeavors indeed (hence the great suggestions for improving the meeting), but AALS functions principally, and by design, to reflect and represent the interests of member law schools....While the AALS surely ought to focus a good part of its attention and resources on providing meaningful opportunities for law professors to engage, to exchange scholarly and pedagogical ideas,...we do our member law schools a disservice to evade and avoid squarely acknowledging its function as a trade association and an interest group.

Dan and Mark, for those of you who may not know, are both past presidents of the AALS, as well as individuals I know and admire. I have not researched the range of disciplinary associations of whatever kind, and am happy to defer to their description. I did note in my original post that "ours is a learned society related to a regulated profession, and thus faces some distinct issues, as opposed to the questions that face, say, a learned society of historians or literature professors"; if that's not a recognition that the AALS is formally a "trade association" rather than a learned society, it's at least an acknowledgment that there are reasons why it might lean in that direction. (In that sense, it's relevant that Mark points out that when he looked into it during his presidency, "the only other profession that had only an association of schools and not an association of professors was dentistry"--another regulated profession. Without my having canvassed the issue fully, note similarly the existence and function of the Association of American Medical Colleges.) So, okay, let's concede, at least arguendo, that the AALS is a trade association, albeit one that also holds an annual meeting that looks a lot like those of other academic disciplines--with more content on legal education itself, perhaps, but also with substantive programs on particular legal subjects. What then? Does it affect my criticisms, and if so how? 

As usual, my friend Orin Kerr asks the questions I would ask, and more economically, in his comments on Dan's post. One might put it simply and sympathetically by noting that, even if (as Dan argues in the comments to his post) there is no "tension" between its functions, they may make for odd bedfellows. One wouldn't expect a trade association based on the membership of individual existing law schools to argue in its official capacity, say, that some 20 or more of them ought to shut down. (I'm not averse to this argument, but neither is it an article of faith for me.) But one might expect an individual legal academic--and most key AALS officers are legal academics--to argue just that upon academic reflection. One wouldn't expect the AALS to argue that law doesn't matter, or matter much; or that whether it matters or not has little to do with whether law schools matter; or that law schools' academic function ought to be such as to exclude various measures--proliferating LL.M. programs, various one-year "certificates" that coincidentally and happily provide much-needed income, and so on--that might be crucial to some schools' survival or well-being. But an individual legal academic might conclude just that. "Tension?" Maybe not, as long as individual speakers are free to press that point at the annual meeting and in the Journal of Legal Education, as they are. (A nice test case might be a proposed "Hot Topic" program like "First, Let's Kill All the Law Schools" or "Law School Monopolies, Public Choice, and the Economic Incentives for Law School 'Innovation.'") "Odd bedfellows?" I don't think that's an especially harsh or implausible description.  

Then there is the question of the fact of the annual meeting. Again, I'm a defender of the annual meeting, and, like Dan and Mark, I think it's better than its most convinced critics argue, although obviously it's imperfect (what isn't?) and I suggested some reforms. But we might well ask why, if the AALS is a trade association first and foremost, and one organized around law schools rather than individual law professors, it exists at all. We might treat it as lagniappe. There's a flavor of this in Dan and Mark's posts. They write, respectively, that "what is more surprising to me is that the AALS has maintained such strong attendance and loyalty, warts and all," and that "it's actually something of an achievement that the AALS's annual program has become as intellectually substantial as it is now." Both of them have pushed to make the annual meeting better, however, and I don't think either of them think the reaction of law professors to the notion that an annual meeting is kind of a bonus should be gratitude and silence.

But another way to read the fact of the annual meeting is that the AALS is, functionally if not formally, at least in part a learned society, and that it wants to be and/or holds itself out to be one. The by-laws and membership structure may cut against that, or against viewing it only as a learned society. But law professors have, for lo these past hundred years (or several hundred), often argued that form can be less important than function, that organizations evolve within or despite their formal structures, that we should not elevate process over substance, and so on. So maybe the "trade association" answer is not complete. And that point is enhanced when we reflect that even if the annual meeting itself includes many programs on legal education, the AALS also holds subject-specific midyear meetings, and that many of its annual distinguished speakers end up speaking about law, or legal academic work, not just about law schools and their welfare. 

Again, I'm happy to concede that the AALS is at least a trade association, although possibly not only one, or that is a trade association "with a difference." Both Mark and Dan, as I understand them, don't rest absolutely on this point. That is, they still think the annual meeting is important and don't think it should be immune from criticism and reform, including suggestions about how to make the annual meeting itself more academically useful, just because it could dispense with an annual meeting (or midyear meetings) altogether, or limit it to a meeting of law school administrators, or what have you. And it is at least possible that we might think of the AALS in the end as being neither fish nor fowl. The question then would be whether we think of it as being free to be imperfect at both functions, or demand that be excellent at both, or suggest that it divest itself of its "learned society"-type functions, or something else.   

I come out somewhere like the following. 1) Okay, it's a trade association. 2) For many intents and purposes, the presence of things like the annual and midyear meetings suggest that it is also, in function and in the understanding of most law professors if not in form, a learned society. As Dan notes, if there has been confusion on the part of law professors about this, it's a more-than-natural confusion. But I think it's more than just confusion; it is now part of the identity of the AALS, membership structure notwithstanding. 3) Insofar as it is a trade association, I have much less (or no) cause to complain when the AALS or its executives speak up in the interest of legal education and law schools themselves. 4) Insofar as it also conducts meetings that conform more closely to the learned society model, it should at least give thought to making sure that its annual themes and programs are fairly academic in nature, broadly understood (I see nothing wrong with programs on teaching better, for instance). The AALS might need to lobby others, but it doesn't need to lobby or convince individual law professors attending the annual meeting. I don't want to attach more importance to it than is warranted, but I still take the general view that "Why Law Matters" is an imperfect theme from that perspective, especially when married to arguments that law mattering is the same as something like current legal education or law schools mattering. In dealing with others, it may take a more emphatic position (which, as it comes from a trade association, individual law professors may critique or take with a grain of salt; the conclusions of individual law professors need not conform to the interests of individual law schools, or existing legal education as a whole). At the annual meeting, it should be very catholic and open-minded about such questions. 5) Law professors are free to push for at least some aspects of the AALS to conform more closely to the model of a learned society. Doing so may create, or enhance, tensions between those different functions that might not otherwise exist. So be it.

Even at this length, this post is just a starting point on this issue, which clearly requires more introspection and discussion from law professors themselves, myself included. Mark and Dan have given us a lot to think about.      

Posted by Paul Horwitz on January 16, 2017 at 10:39 AM in Paul Horwitz | Permalink | Comments (2)

Wednesday, January 11, 2017

AALS Addendum I: More On "Taking Attendance"

I'm grateful to those who read and commented on my series of posts on the AALS annual meeting, especially but not limited to Mark Tushnet and Dan Rodriguez, who are both past presidents of the AALS. I hope the posts afforded some food for thought, and a little amusement, for those attending the meeting. Let me say again that the three of us have something important in common: We are all inclined to be supporters, not detractors, of the AALS and its annual meeting. As I wrote in my first post, my series of suggestions was intended neither to praise nor to bury the AALS. On the whole, I find the annual meeting useful, and better than its more fervent critics are wont to suggest. No institution or annual gathering is perfect or exempt from criticism. But I am and hope to remain involved in the AALS, both at the section level and in the central organization itself, and I would rather be a part of it, while sometimes waxing critical or pushing reforms, than deride it altogether, boycott it, or give up on the idea of a central organization and gathering for legal academics. On the other hand, I'm always much more interested in criticizing the things I like or am sympathetic to than the things or people I completely disagree with or disdain. Let me also repeat what I said often during the series: my proposals were in the nature of "modest proposals," with at least something of a Swiftian touch. I understood at the outset that it's highly unlikely that the AALS will take attendance at meetings and send that information to deans, or honor overexposed speakers with a gold watch and a five-year ban on speaking. The extreme nature of the proposals served to place the issues they were raising in high relief and provoke discussion. As it turned out, and I suspect this is often the case with semi-Swiftian satirists, and with all authors who make proposals, by the end I was more attached to the proposals themselves than might have been my original intention, and I am now inclined to think it's actually not a bad idea at all to take attendance or come up with draconian rules to deal with extreme "usual suspects" at the AALS annual meeting. Still, I expected readers to take the particulars of those proposals with a large grain of salt and focus on the issues themselves, even if I am now inclined to take the proposals more seriously than I initially intended.  

I was grateful to those readers who pushed back on the "take attendance" proposal, which was meant to deal with "lobby-sitters" and "dinner-with-friends" attendees of the meeting, who rarely darken the door of actual program meetings. The upshot of the pushback was that meeting people outside the meeting rooms is a valuable form of professional networking and should not be knocked too readily or loosely. On the whole, I am happy to agree. One might view differently those social gatherings that have more to do with catching up and hanging out with friends per se, and less or little to do with catching up on each other's work. Setting that aside, I'm quite willing to agree that there is value in professional networking--and in some or many cases, it's not just value to oneself or one's personal advancement, crudely defined, but value to the legal academy, insofar as it involves learning about others' work, exposing others to one's own work, learning about what's taking place at other schools, and so on. But I would like to emphasize in response that my question was not whether this kind of networking is worthwhile--it is--but whether and to what extent it's worth subsidizing. (Remember that some of that subsidy comes from, inter alia, student tuitions and the state fisc.) More particularly, the question was whether it's worth subsidizing all that a trip to the AALS entails, including the registration fee for the meeting itself, the extra fee for the annual luncheon (the one program that those who don't attend many programs are most likely to attend), the travel and accommodation costs, and so on, in cases where the person seeking the subsidy doesn't show up for many or any of the actual meeting events. At the best of times, financially speaking, I would find that a dubious proposition--and these are not the best of times. Defending professional networking is easy. Defending asking your law school to pay a registration fee in order to obtain a conference rate at the hotel and a conference nametag (to facilitate identification for networking purposes), but without actually attending the conference proceedings, seems to me much harder. To me, at least, that holds true even if the programs ought to be better. 

Whether the AALS takes attendance at individual programs and sends those data to law school deans or not, I think we can usefully ask what those professors who value professional networking but don't intend to attend many or any actual conference proceedings might do instead of seeking reimbursement for the whole conference package when they are only going to take advantage of part of that package--namely, the "lobby" or hallway and the chance to chat with old and new colleagues. Three possibilities spring to mind. One is that the professor simply pay his or her own way. As long as a law school reasonably expects that this person is actually going to attend conference proceedings and is offering to subsidize him or her on that understanding, this seems like the right thing to do. The second is that the professor "go to the conference" but not register for it, and thus limit him- or herself to networking in the lobby or elsewhere, without access to the nametag, the programs (which he or she didn't plan to attend much if at all anyway) and luncheon, the booths downstairs, or the conference rate at the hotel. (Of course, that person could always stay at cheaper accommodations in the city and then commute to the conference hotel.) If his or her law school were willing to subsidize that, on the view that there is sufficient value in networking itself (or because it believes the professor's use of his or her PDF is discretionary as long as it is related to academic purposes), at least it would save the school the cost of the registration fee itself. Finally, if the professor really wanted the conference rate and the nametag but had no intention of attending any conference programs, he or she could tell the dean clearly and in advance that he or she planned to seek reimbursement for the conference fee, hotel costs, and the rest of it, but without attending any programs. I would be curious to find out what would happen in such cases! But surely there is nothing wrong with being transparent about one's intentions with respect to using institutional funds--and conversely, there is arguably something wrong with not doing so precisely because one wants to "attend" the conference without attending any of the programs and fears that such a request would not be approved if it were made transparently.

Again, none of this is meant to disparage professional networking. (Although some dinners with friends are just dinners with friends.) The question is what law schools ought to pay for, and whether it's fairer, and would conduce to better decision-making and resource allocation by law schools, to know what they are paying for. (And, as I said in the first place, professors could always Skype with each other, or email, or do other things. No, it's not as good. But it's a hell of a lot cheaper. And, of course, there are conferences within one's specific field as well.) 

In back of this proposal, to be sure, is a general premise: I value the annual meeting as such, including the program meetings. Professional advancement is nice, and need not be viewed in purely mercenary terms. But the AALS is an annual meeting for professional education, including exposure to ideas and speakers outside of one's usual area of focus, not just for professional advancement. I think such a conference is or ought to be a valuable thing for committed members of an academic field. My views above would hold even if that weren't my background premise. But since it is, my "attendance" proposal is not only about encouraging candor, transparency to funders and stakeholders like law students and state legislators, and better resource allocation by law schools; it's also about making the AALS annual meeting itself better, by encouraging registrants to actually attend the programs--and, where subsidy is dependent on their doing so, incentivizing them to get involved in the sections or communicate with the AALS in order to make the program meetings better. 

Whether this second point holds might seem to have something to do with whether the AALS is actually a learned society or not, or whether it's something else. That's the point on which Mark and Dan offer some interesting and useful points, and I'll take it up in my next post.             

Posted by Paul Horwitz on January 11, 2017 at 09:45 AM in Paul Horwitz | Permalink | Comments (0)