PrawfsBlawg

Just the Last Paragraph

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

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

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

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

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

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

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

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

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

A Useful Opportunity for Golden-Rule Law Review Reform

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

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

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

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

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

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

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

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

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

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

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

Is Editorial Content "Workplace Conditions?"

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

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

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

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

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

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

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

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

An Excellent Passage on Seminars

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

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

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

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

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

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

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

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

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

Il Miglior Fabbro: RIP Kent Greenawalt

Brian Leiter shares the news that Kent Greenawalt, long a professor at Columbia Law School, has died, at 86. Kent was a leading figure in law and religion, among other fields--I am inclined to call him, more generally, a leading figure in legal interpretation--and mentored many of us in that area. I also had the privilege of studying under him at Columbia as an LL.M. student. 

Law is a highly tradition-oriented profession, and no less so in this country, for all its claims to love the new and disdain the old. (This link is perhaps outdated, but I think it's correct in saying that law Latin is probably used more often in the States now than in His Majesty's courts, because American lawyers are just more conservative, plus royaliste que le roi.) Legal academia is the same. That's true in various larger ways and also in more personal ways. They are combined in the many linkages in our individual lives between mentorship, memory, history, and tradition. A professor today who learned constitutional law from Louis Henkin is five degrees of generational separation from the Framers, via Henkin, Frankfurter, Holmes, and John Quincy Adams (whom Holmes met as a boy), and law students studying today who will still be contributing to the profession on the date of the tricentennial will remain, even then, within Baconian distance of 1776. It adds a sense of awesome significance to these individual connections, however personal the memories and experiences of mentoring are in each instance.  

Our reliance on mentorship can be bad as well as good. Unsurprisingly, I'll focus on the good aspects of mentoring here. I'll happily rhapsodize, but will try to avoid the bullshitting that is a cardinal feature of tributes in American legal writing. But to talk about the larger temporal chains involved in these relationships is not merely rhapsodical, I think; it is genuinely meaningful, and a cause for gratitude and humility. I note before pushing off that there will be entirely too much use of the first person here. Not without reason; he was deeply influential personally and affected the course of my life deeply. Nonetheless, I apologize. 

Years ago I wrote here about the debts that mentors impose on one. I say "debts," but could just as well have used the word "gifts," with the thought in mind that the greatest gifts that one receives from others are also debts--obligations that one cannot really repay to the giver, but which must instead be settled by handing gifts or debts to others. (This is another reason for the first-person excess: It's hard to talk about an influential person without talking about how that influence played out going forward.)  For me, the greatest gifts, and thus the greatest debts, came from three teachers, all then at Columbia and each in his own way focused on the art of legal interpretation. These were Kent, John Manning, and Michael Dorf. In my own experience, Kent loomed largest.

Many of us who studied under him had already read, or would come to know well, books like Religious Convictions and Personal Choice or Private Consciences and Public Reasons or Fighting Words, and those who came slightly later would have known well his tremendous two-volume treatment of Religion and the Constitution. (To call that a selective list is understatement. In the last fifteen years of his life he published seven books in addition to the Religion and the Constitution volumes.) We learned from his writing.

But we learned even more, perhaps, from his model. He was an eminently kind man: a serious man, not a classroom "buddy" type or collector of allies, but decent, possessed of the capacity to laugh, and heavily invested in teaching as a dialogue or collaboration of (what he made feel like) equals, in which student and teacher were both interested enough in the same topic to devote time and thought to talking it through. Back in earlier days, when Dan was still with us and comments were still a thing (and were not limited to a couple hundred characters), I said this about Kent's teaching:

Kent Greenawalt taught me a surprisingly difficult skill: that of listening.  Socratic lecturing and seminar teaching both count on interaction with students.  Yet, as new teachers find, often one is so focused on where the material is going next that Socratic lecturing is a mere dumb show, in which you take comments until someone says what you want to go where you need to be next.  A couple of years of teaching has taught me the difficulty of really simply listening to a student, and responding respectfully and thoughtfully, without regard for the direction of the class.  I think it's difficult to do this right until you've really road-tested your classes and mastered the material. 

Listening is indeed a difficult skill, in or out of the classroom. To say that experience taught me the difficulty of that skill is not to say that even more experience has led me to its mastery. Kent was a master of listening. Part of that was his mastery of the subject itself, of course, as well as his long experience at teaching it. But I think most of it was his view that teaching was indeed a dialogue, a joint effort to work together through a set of questions and problems, rather than a performance in which the student is a mere unknowing cast member or magician's assistant. The goal of the conversation for him was the working-through, not the answer itself and certainly not a predetermined one. And so he listened, fully and seriously and respectfully; and he responded, neither with criticism nor with false praise, but with respect and genuine interest and effort. I'm no whiz at seminar teaching, but what I do well I stole from teachers like Kent, Vince Blasi, and others; and I don't doubt there are actually superb seminar teachers out there who are applying lessons from Kent and repaying debts they took on in his class.

Kent's seminars often took place in his apartment on Riverside Drive. I remember, a mere quarter-century later, the rather dim light in the room, the park outside, the smell of pizza from V&T, and Kent's courtly, careful prodding. As a reader of his work, I remember not only the fact that his work was dense and demanded attention but was always written in plain English, but also the little eruptions of personal life that came along with it, typically in the prefaces or introductions, and that similarly emerged from time to time in his seminars. The love and deeply affecting loss of a wife, the deep attachment to his sons, the memory of his father's work as a lawyer (including on religious liberties cases), the importance of new relationships and attachments: all these came occasionally into his discussions, not grossly or as a matter of oversharing but naturally and as a matter of fact.

He was, of course, human. He worked hard, he got tired, he had better and worse days, and I vividly remember his expressing an almost pettish anger at having an article turned down by his home journal, and thus getting a lesson both in the unceasing nature of ambition and in the fact that we are never too old to re-experience the hurt feelings of youth. He wanted the best for me (as for all of his students), and for some reason his ambitions and hopes for me did not include something like dyeing my hair and wearing weird T-shirts. (He put the point kindly, although it was dispiriting, and the point had to do not with encouraging conformity but with removing possible barriers to getting places he hoped to see me go. Whether the latter worked out or not, I can say that the former failed utterly. It was only later that I appreciated at first hand that business dress is still so thoroughly the norm at many elite law schools that Duncan Kennedy wearing a leather jacket was and still is actually a somewhat radical action. The ways of the great are strange.) Those human and personal moments, in his writing and in person, were refreshing and touching. But time still stopped, or took on a pace and sensation of its own, in the half-light of the apartment on Riverside Drive. If the contretemps at Yale Law a couple of years ago teaches us anything about teaching off of official grounds, it's that it's something worth preserving regardless of the contretemps at Yale Law a couple of years ago.

Kent was eminently reasonable, in person and in his work. His readers would probably associate his work with the word "reasonable" above all else. I mean that as a compliment and tribute, of course, but it is a thought-provoking, if not double-edged, compliment. I have a distinct memory of someone somewhere, in a symposium piece commenting on Kent's work, referring to Kent's work as offering the "view from Morningside Heights" or the "view from Riverside Drive." Perhaps it was only spoken at the conference in question; in any event, I certainly can't find it. It was apt phrasing.

Whether it appeared in print or not, the phrase does find echoes in critiques of his work from Larry Alexander and Stanley Fish. Each of them avoids directly accusing him of thinking of himself as offering a "view from nowhere." (Larry is explicit: "Kent recognizes that there is no 'view from nowhere,' no neutral position above the fray of competing metaphysical and normative views--or rather, that neutrality is always relative to some viewpoint, and that there is no Archimedean, interpersonal point of view to which our bare noumenal selves can repair.") But both suggest, more or less gently, that his reasonableness was itself a position, with a particular politics, method, and location, one that covered some ground but not the whole terrain. Maintaining the borders of that ground was hard; convincing people to work within its territory and not outside it was hard also, and the number of people who might think of themselves as citizens of that territory, imbued with its culture and assumptions and invested in its success, could grow or (and especially) shrink; and the plausibility of the positions and solutions offered from within the rules and culture of that territory could seem more or less stable, convincing or unconvincing, ecumenical or sectarian and imperial, more or less caught up in tensions and contradictions, at different times depending on the nature of the cultural and political surround. The point here is not the banal one that issues change and necessarily require a new assessment of what is reasonable. Nor, I think, is it the point that what is seen as "reasonable" changes over time. It's closer to the mark to say that there are multiple communities of the "reasonable" or of the "consensus view," that the assumed place of any one of them as the genuine article may be stable for quite a while but can shift slowly or suddenly, that its influence can perforce be so strong as to be unquestioned or can suddenly virtually disappear, and that interest in the reasonableness project and its members, at least as defined and understood for stretches of decades at a time--in this case for much of postwar American life--can itself fade. (This may also be banal. But it's different from simply saying that issues and perspectives change within the Land of the Reasonable.) 

In his Fishy way, Stanley had this to say (I quote at length):

[T]he chief merit of [Private Consciences and Public Reasons] is that it is an illustration of the tension it wants to resolve, the tension we have been tracking from the beginning between the impulse toward tolerance and the demands of order. Although Greenawalt does not finally advance the debates he rehearses, he does display the springs of those debates in a way that makes as clear as one would like why they are, and will continue to be, interminable....

Private Consciences and Public Reasons abounds in such moments, some acknowledged and some not, with the result that the book exhibits, sometimes in a single sentence, a split personality. On the one hand, it is a theoretical treatise in search of a privileged philosophical position from the vantage point of which the issues it raises can be definitively addressed--as when Greenawalt declares that the “problem of political philosophy is genuine only if some moral and political judgments do have a more solid or widely comprehensible basis than others;” on the other hand, it is an account (not without interest) of the compromises and adjustments that are available within a set of political conditions--roughly the conditions of American political life at the end of the century--whose rightness is assumed and not interrogated. In one narrative, the goal is the generation through rigorous conceptual analysis of a formula for settling the just bounds all citizens will positively affirm; in the other, the goal is the prudential one of figuring out what, given the prevailing realities of power, one can or cannot accomplish--at least until those realities change, at which point the calculations would have to be done all over again....

What Greenawalt has done without announcing it is eliminate the tension between Faith's religious convictions and the principles of liberal government, and once they have been collapsed into one another he can declare that in the course of reflection she has become someone whose overriding concern is “to show respect for fellow citizens.” She has become a liberal theorist....

Serious attention [to competing visions of life] is certainly what Greenawalt pays, but as I have already said, he alternates between thinking that he is paying attention to a political/sociological configuration and thinking that he is paying attention to a configuration (and a set of distinctions) reflective of some deep, noncontingent truth. If he is doing the first, his book is interesting largely as a rhetoric, as a handbook for those who want to operate successfully in late-twentieth-century liberal democracy. If he wants, as I think he does, to be doing the second, he is making...the mistake of confusing a present and revisable status quo for a permanent and general settlement of old and persistent questions. What makes his book compelling is the degree to which he is aware, at least on occasions, of how little theoretical interest his efforts might finally have. Fairly late on he acknowledges that with respect to his analyses and recommendations, the “priority and weight of considerations turn out to look quite different in regard to people who occupy different positions” and thus “the relevant choices turn out to be highly specific.”....In other words, what I'm telling you is what I see from my own particular perch, constructed as it is by the beliefs and convictions that have long since made me what I am, and if you happen to be sitting on another perch, what I am saying may seem to you to be unpersuasive and flatly in error.

Not, perhaps, the passage one is expecting in a tribute--which this emphatically is and remains. But it does seem true to me that Kent, for many of us, stood as a hallmark of reasonableness in confronting and offering a guide to the "compromises and adjustments that are available within a set of political conditions," a set that did indeed constitute "roughly the conditions of American political life at the end of the century." He still has that status, but the sense of his having that status within a particular and perhaps vanishing context is now much stronger. Within that time and place and its animating premises, his views were so reasonable, and so reasonably put, that they came close to the feeling of a "view from nowhere." The view from his perch, if it was limited, was not limited because of any particular occlusion or limitation of vision; that was exceptionally clear. Rather, if it was limited, it was because it was the view of a particular territory, one whose citizens might disagree over particular conclusions but did so in the same way and with roughly similar premises and commitments.

It is, I think, a territory whose internal population has shrunk and which has been somewhat overshadowed and subjected to criticisms (or--worse--lack of interest) by kingdoms sitting to the left and right of its borders. (Or, perhaps more accurately, by people residing within its borders but at the furthest points left and right within them, or who sit just outside its walls but still operate comfortably under its protection. I'm not sure it's more accurate to call someone like Patrick Deneen illiberal or antiliberal than it is to call him something of a permanent resident within liberalism, one whose protections as a green-card holder include the right to reject liberalism.) To visit and revisit Kent's work, which I still do often and to great benefit, feels now, much more than it used to, like taking a trip to a foreign country, one that seems on the whole like a very nice and well-run place to live.

That is no mean tribute. Nobody fully "evolves" with the times, and if they did they would be more likely to seem (and be) ridiculous or desperate than fully contemporary and in step with the times, to the extent that that is a worthy goal of some sort. To be able to say of someone that his views within a particular era were so full and thoughtful that they managed to offer what seemed like a definitive account of law and religion (among other topics) from within that time-bound position is beyond most of our hopes. 

And, of course, I offer no suggestion that Kent's perspective, his domain, was not a better domain or perspective than whatever is currently on offer. Just before I learned of Kent's passing, I read a post in the ongoing Balkinization anniversary series, this one by Melissa Murray and titled "Talking 'bout my generation." I quite liked it. It compares the perspectives of Justices Thomas and Jackson from the perspective of an "intraracial generational divide," noting the "temporal and experiential differences" that might affect their understanding of "vexed questions" such as affirmative action. It's a useful perspective, both as to these justices and more broadly. It rightly counts diversity of age and experience as something to be valued. What it does not do, and cannot do, at least without appealing to something other than mere temporal happenstance, is say whose understanding is more accurate or appealing. It is pretty clear that Murray has a preference, judging by her choice of words. (Thomas's vision is "clouded by the prospect of stigma and assumptions of inferiority," while Jackson's "reflected the opportunities and access that integration’s advocates promised." I take the historical point. But surely every vision, including the latest one, can and should be said equally to be clouded or reflective--leaving aside the point, which Murray would not deny, that neither Thomas nor Jackson can lay claim to a definitive generational response to the factors operating in each era.)

I would say likewise, of Kent, that if he offered a particular "view," an account of reasonableness among particular participants, in a particular time and place and operating from particular shared assumptions and premises, and if the delimitations of that perch within a particular time and space are now more visible--perhaps painfully more visible--that does not in itself tell us that he was wrong, or that other and different views and perspectives are more right. Within the time period in which and for which Kent was writing, and from a position somewhere within its borders, if not quite on a perch over Riverside Park, I often found things to disagree with within Kent's work. Within this time period, I find occasion often enough to lament that his approach--his thoughtfulness, his reasonableness, his somewhat formal warmth, his capacity to listen and respond with seriousness and with no sense of urgency--is not more available. At the risk of being overly dramatic, I do tend to think that that model is now both less common and less tenable. That alone is a pretty excellent reason to continue to follow it; what place is there for any academic in a river, if not swimming against the tide? So is the fact that I remain under an obligation to him. And so, finally, is the fact that it, and Kent, were in so many ways so admirable. May he rest in peace.   

Silber, Outside In: The Oral History of Guido Calabresi

This seems like a fine and worthwhile project from Professor Norman Silber (who has also done fine oral histories of Philip Elman and Herbert Wechsler). Here's a description from the publisher, OUP:

Guido Calabresi is an extraordinary person. His family, of Jewish heritage, occupied a secure and centuries-old position near the top of Italian society-- until the rise of fascism. Guido's parents fled to America on the eve of the war in Europe, with their children, to avoid political and religious persecution. They arrived without money or social standing. Guido's talents and good fortune helped him to thrive at several elite American institutions and to become a leading legal scholar, teacher, law school dean, and judge. He would receive prizes and awards for his contributions; to legal theory, especially for opening up the area of 'law and economics'; for contributions to the modern transformation of American law schools, as the Dean of Yale Law School; and for advancing the development of law including through progressive decisions as a member of the United States Court of Appeals for the Second Circuit.

Outside In is a unique sort of account, written in Guido's remarkable voice based on recordings that which took place over a decade. The book is a unique amalgam of oral history and biography, with supplementary commentaries to explain, elaborate, validate, and interpret and situate the personal narrative within its larger historical context.

 

And One More...

I am fortunate to disagree with Rick on all sorts of things, to have a formation and moral anthropology that differs from his, and to consider him one of my best friends in the legal academy. I say this by way of saying that although we share some common views on the things we've discussed in the last couple of posts, no doubt we have some bottom-line disagreements on other matters--probably including Dobbs itself. But what he writes below strikes me as pretty reasonable and doesn't depend on our respective views on other matters. I want to add a couple of thoughts:

1: Prof. Chemerinsky teaches constitutional law. I get that, and thus why his examples and thinking might center around that subject. People who are heavily engaged on contemporary political issues--which is not every American, not every law student or faculty member, and not necessarily the finest or most thoughtful people in either category--are also likely to focus on constitutional law, perhaps mistakenly and perhaps faute de mieux, for lack of a position in a more appropriate discipline, in thinking about some of the cultural divides Chemerinsky discusses. But of course it goes beyond that. Long before Dobbs, or the current Court, it was a common observation that the legal academy is often disproportionately con law-centric or -obsessed, and Supreme Court-centric at that. 

One might ask: Would our understanding of, or approach to, "deep divisions in our society" look precisely the same if we were viewing it through the vast majority of our curriculum, which thinks about things like tort, contracts, property, tax, securities, and so on? I do not mean to minimize the very real feelings Chemerinsky is discussing or, for that matter, to suggest they are irrelevant to those other subjects. But are those feelings as sharp, in the classroom or in our dealings with each other as students and faculty members, when the subject under discussion is contract law? Where there are disagreements about the doctrine on easements, do they fall as simply and as often along trite political lines? Where those disagreements occur, are they handled more civilly? Yes, Chemerinsky teaches con law. But he's also a dean with a whole curriculum at his survey. Has he considered that there are other models, and other places in the same law schools, in which the state of civil discourse, the availability of disagreement without polarization or mutual demonization, and the ways of addressing disagreement are better--kinder, more scholarly, more thoughtful, less vitriolic, more tolerant and welcoming? Why model the whole picture of what's going right or wrong in law or law school, and of what we should use as a tether or orientation point for thinking about students' mindset and how to develop it, around constitutional law and the Court?

I'm not just asking this of Chemerinsky. It is a common observation outside the legal academy, within our general culture, that some of our discursive spaces tend to focus most relentlessly on the things that are most divisive and, in doing so, to neglect vast spaces of normal life, vast numbers of normal people with other concerns, and to exacerbate division. Perhaps it is the case that our endless focus on a few public law subjects, and tendency to define them as the main ground of discussion and debate, has the same effect within law schools. Maybe we would be slightly more encouraged, and find better models for addressing discourse and disagreement, if we looked elsewhere within the curriculum. I might add that, however it might appear to some faculty (faculty like me, who teach public law courses), many or most students are primarily interested in those non-polarized topics, both for intellectual reasons, because those subjects are more interesting and serious, and because they involve the kind of work they're going to do for a long time to come. 

2: I do think Rick is right that Chemerinsky's column "others" conservative law students. (Twice, actually: Once up front, and then again when it implicitly assumes that the folks focusing on "change" and "struggle" outside the Court will be progressives. As I survey state and local politics, it doesn't look that way to me.) It also flattens them, lumping them en masse into an unhelpfully broad category. Interestingly, it does the exact same thing to what he calls "progressive and even moderate" students. This is common enough, of course. But it's also terribly banal, and unfair to all the students involved. Maybe one way to improve civil discourse along the political divide is avoid thinking about it in such banal, overbroad categorical terms. 

Incidentally, and with apologies for the use of flattening terms, I teach at a law school in a conservative part of the country, and although its students come from all over and even those from right here do not tend to hold views that parallel those of the residents of their state, I'm sure many of those with even somewhat conservative views would say that those views are almost nowhere and never represented or discussed in a serious way by their own law school, let alone taught as interesting subjects. I taught a seminar on conservative legal thought a couple of years ago. It was of course open to all and I taught it, as I teach everything, not because of or about my politics (which are not especially conservative), but because I thought the subject was interesting; because I thought there were students--some of them, but not all, conservative--wanting and waiting to learn about some of this material and not getting it; and because I thought it deserved a thoughtful, critical academic treatment in which the students and I could explore these ideas together. My sense is that the non-conservative students thought the subject was worthwhile and taught fairly--and the conservative students felt "seen," as the hackneyed phrase would have it, and were grateful for the opportunity. There are certainly some clearly "conservative" law schools out there, and some clearly "progressive" ones. But I think there are also plenty of law schools where the views and composition of the faculty--and the courses offered by them--have little or nothing to do with the politics, views, concerns, or interests of the students. This is one problem with a hiring model that focuses on national credentials involving a very few institutions and that over-relies on an ideologically, educationally, and socio-economically narrow cohort: it creates circumstances, for many schools across the country, that can easily lead to a fundamental alienation between faculty and students. And it's an ironic one, given all the fashionable and earnest talk these days about being "responsive" or "listening" to students.    

3: Rick writes, "Institutions of higher education -- nonstate ones, anyway -- are entitled, in my view, to organize themselves around distinctive -- and even partisan -- missions, commitments, methodologies, and aims." I tend to agree with him about that, albeit uneasily, and have written about this. But I don't think the AALS is such an institution. I acknowledge that we've had interesting discussions and disagreements on this page in the past about whether the AALS is a learned society, like other academic learned societies, or more like a trade association, or an awkward hybrid of both. Whatever it is, it's not an "institution of higher education" in the way that a specific university is. Its functions and obligations are different. And it seems to me they sometimes include insisting on better and more interestingly diverse panels. (This year's program offerings included an enormous number of panels simply organized around "new voices" or "emerging scholars" or some other standard phrase meaning "not just the same folks again." I cannot imagine the sheer number of panels organized in this fashion was spontaneous; I assume it took place with the urging or at the direction of the AALS. I applaud the move in many respects. How many damn times must we hear from [redacted] at the AALS? My only complaint is that simply organizing a panel around "new voices," rather than coming up with a worthy topic and then seeking out and inviting new voices to discuss it, strikes me as quite lacking in imagination--as mere compliance with a dictate rather than something deeper.) When it comes to the interaction between the AALS, its sections, and its panels, it seems to me the AALS is routinely in the position of leaning both too hard and not hard enough on its constituent parts. It should do some leaning, and send some panels back to the drawing board--but with the "learned society" aspect of its identity firmly in mind.   

Coan on the Court

Andrew Coan has this excellent post at Balkinization examining claims that the Supreme Court is changing "too much, too quickly." It is of a piece with his recent article, also excellent, titled "What's the Matter With Dobbs?" Neither the post nor the article require the reader to believe that Dobbs is anything but wrong in various senses of the word. (In his article he notes that he believes the opinion was "wrong, gratuitously cruel, and poorly reasoned in many respects." But he rightly notes that he considers that conclusion "not germane" to the argument he is making in the piece, and rightly notes as well that his reasons for that view are banal--as would be similar arguments for Dobb's rightness. I also tend to think Dobbs is wrong, and my views on the subject are also banal.) But both the post and the article look seriously and critically at the language we use to criticize the Supreme Court and its opinions, note the distinction between criticisms based on moral disagreement and those based on lawlessness or illegitimacy, and remind us of the value of "specifying what, precisely, is wrong with the changes of the past Supreme Court term and those looming on the horizon" and some of the dangers, intellectual and political, of mislabeling or misidentifying one's criticisms. I suppose I would add, specifying precisely, accurately, and candidly. One ought not need to add this--no one thinks Professor Jamal Greene is a fan of Dred Scott or Plessy, but no one I am aware of condemns him for arguing that their anticanonical status does not mean, or even suggest, that they are of "uniquely low quality" in terms of conventional constitutional analysis--but I'm afraid one does need to add it. 

I was not at AALS this year--this year's program listings, on the whole, did not strike me as especially good or imaginative--so I did not see the Constitutional Law Section panel on Dobbs. Just as a headline is not an article, so a description of a panel discussion is not the panel discussion itself. I still feel comfortable suggesting that, if it was beyond imagining that the panel might have included someone defending Dobbs or offering some other, more genuinely heterodox position, it certainly had ample room for a thoughtful, independent interlocutor like Coan.   

More "Useless" Writing, Please!

This piece by Maksymilian Del Mar, beautifully titled "The Most Useless Book in the History of International Law"--who would not want to get a review with a headline like that!?!--is lovely. It's a review of Gerry Simpson's book The Sentimental Life of International Law: Literature, Language, and Longing in World Politics. I give due credit to the book that inspired it, but in the meantime the review is certainly the most interesting and useful piece of legal scholarly writing I have read in a year or two. It is, somewhat rhapsodically, a tribute to the kind of writing about law we ought to expect, and expect from ourselves, not just in international law but in any area: writing that "draws on and hunts down the awkward spaces, the misshapen, the perverse, the absurd, the accidental, the incongruous, the irrelevant, the irreverent, the 'obscure,' the 'muddy'"; that is "'playful[ ], rebellious[ ], [and] scurrilous[ ]," "speculating, hesitating, postulating, hypothesizing, punning, fantasizing, gossiping, juxtaposing, quipping, raconteuring, [ ]delighting in indirection or even misdirection"; writing that is ironic and comic; writing touched by the spirit of Diogenes; writing that skips "solemnity and high-mindedness." 

Del Mar ends up somewhere different than I might, as no doubt does Simpson. But, if for different reasons, I can endorse his conclusion: "Literature, it turns out once again, is of crucial ethical and political value: it enables us to combine self-critique and hope, while enjoying ourselves. What could be more important—dare I say, more useful—than that?" I'm not sure the writing described is needed now more than ever; it's always needed--there is never enough irony in American letters, and barely any of it in the academy--and no era doesn't count as a "now more than ever" era to those who are experiencing it. But I can say with confidence that many legal academic writers feel, or profess to feel, that their writing ought to be "useful"--and that I've seen no evidence whatsoever that "solemnity and high-mindedness" actually are useful qualities in any tangible sense. 

On the Enduring Importance of Reassuring Myths for the Professional-Managerial Class

The Times today has a story pursuing a theme it began pushing only a few weeks ago: that business schools are now deeply, busily, thoughtfully engaged in reexamining their core values and those of corporate culture. Today's version is particularly enjoyable, coming as it does in the form of a review of a new, $600 million building on the campus of Columbia University, named for Henry Kravis and "separated from an eight-story structure named for the entertainment mogul David Geffen by a circle of grass, trees and benches embedded in a plaza." Written by an architecture critic for the paper, it explains, if I understand it correctly, that the trick to "do[ing] good as [you] make money," or I guess at least feeling as if you're doing good while you make money, involves how you place your stairways. Who knew?

Some Generalizable Points About Institutional Crisis

In his op-ed today about why the House Speakership affair "reflects larger structural forces that are changing American democracy," Rick Pildes lists some factors that he suggests serve as "forces of fragmentation [that] will continue to bedevil the leaders of both political parties, as they do parties throughout democracies today." The headline--or at least the current one I'm seeing, since the Times editorial section unfortunately tends to A/B many of its headlines these days--chooses to focus specifically on "the fringiest fringe of the G.O.P." That choice surely is meant to appeal to the preferences and prejudices of its readers, but it misses the very points Pildes is making. (A mere three paragraphs in, Pildes observes that the same factors at work in the speakership kerfuffle have also led to the rise of Alexandria Ocasio-Cortez.)

I would take his point a step further. The features he lists contribute to problems for a great many institutions, public and private, whose welfare we should be concerned about. Consider those factors:

1. "Revolutions in communications and technology...[that] have enabled individual members of [an institution] to function, even thrive, as free agents."
2. A resultant "flatten[ing] [of] institutional authority."
3. The greater ease that technology provides for "individuals and groups" to "mobilize and sustain opposition to [institutional] action."
4. A resultant increased lack of ability for institutions to assert authority, which allows for "intense factional conflicts" to rage within those institutions without any ability to curb them effectively.
5. An "explosion of small-donor donations"--to which one could stretch a little and add things like GoFundMe, Internet "side hustles," and so on--which allows individual members of institutions to raise money without having to depend on institutional sources of funding.

I am not criticizing these things as such, nor am I ignoring the dangers of ossification or the problems with establishments. But I would note that all of them have been lauded by all sorts of people, of all sorts of political persuasions, on all manner of occasions. They are certainly sexier and more au courant than talking about "institutions" or "authority." But, as the op-ed suggests, when it really counts to have those institutions functioning properly and authoritatively and with some kind of institutional loyalty or shared sense of institutional mission on the part of their members, it turns out that all these factors have corroded those institutions' ability to do any of these things.

As I noted the other day, most of these factors have been instrumental in the corrosion of the legacy press and in its replacement by dubious alternatives to those mainstream institutions. And as I suggested in my post on the legacy press, these factors are at work in the academy as well--with, I would argue, similarly corrosive effects. And the list could easily go on. A decade ago I wrote about the importance of institutions in the First Amendment and the activities it protects, which are the stuff of social and political life. A decade later the general sentiment for those who care about such things is that these institutions are in crisis. This week's events are just another data point. 

One source of that crisis is a sense of indifference to institutions among many, one that can be highly dangerous even if it is also sometimes earned, and a focus instead on the individual. Another is a lack of authority, and a lack of willingness on the part of institutions to wield what authority they still have. The factors Pildes points to have something to do with both these things. So does the all-too-frequent tendency to treat all of these these as positive developments, or to laud them while cherry-picking and dubiously defining some particular evil, such as "misinformation" or "disinformation," without acknowledging that those evils are simply the fruit of a lack of institutional loyalty, commitment, and authority. (What spectacle could be more enlightening on this point than universities speechifying about a decay in social attachment to truth while simultaneously putting out press releases about how some faculty member has made it onto a list of "most influential people on Twitter." Even now someone is penning an article for the Journal of Legal Education talking about how to build your own brand as a professor, or rhapsodizing about the importance of meeting some younger generation "where it lives" while studiously avoiding critical evaluation of any of the values or structures it discusses.)

I do not think any of the things listed above are bad. I like most of them at least some of the time. But I do think all of them are far from unqualified goods, that things like authority and loyalty are too often wrongly treated as suspect or boring, and that, just as parties and government bodies are not the only institutions we need for a functioning civil society, so the institutional crisis Pildes discusses, and the factors he points to, are hardly limited to the GOP, the House, political parties, or official organs of the state.     

Lest We Forget

Of course it is worth focusing on the trash-fire in the House, but I hadn't realized until this week that the Senate has also broken with tradition in officially electing Senator Patty Murray as president pro tempore, rather than the senior member of the Democratic caucus, Senator Dianne Feinstein. The news did receive coverage when the caucus selected her after nomination by Sen. Schumer in early December. But it certainly did not receive sustained coverage or deep-dive reporting. Stories like today's in the Times are not atypical, describing Feinstein as having "turned the position down" (the Times) or having "declined to seek" the position (the Post). Today's story in the LA Times elides the question by simply not discussing it at all. The story may have been covered differently in the more openly partisan press, which I mostly don't read, and the occasional story

Of course this is a dignity-saving lie on the part of the caucus and half-truth on the part of the press, which, despite earlier, better, and braver coverage, has been less willing in the latest round of stories to say the obvious: that Feinstein is not able to serve in the job, certainly lacks her colleagues' confidence that she can, and may not be competent to serve in her office at all. (The story may have been covered differently in the more openly partisan press, which I mostly don't read, and the occasional story elsewhere is more forthright.) But it seems worth remembering to me, as we continue to slide into gerontocracy. At least Sen. Murray is only 72--unlike Patrick Leahy, who just passed along that office (and retired from the Senate) at the age of 82, or Feinstein, who is 89, or the President, who is 80, occupies a less ceremonial and more demanding job than at of president pro tem, and, like the rest of us, is not getting any younger.  

Muller on US News and Law-Professorial Salaries--Which Surely Ought to Be Lower

Derek Muller continues to provide excellent coverage and commentary on the ongoing US News rankings story. Yesterday he had this post, which asks, as the title of the post puts it, "By knocking off expenditure metrics and devaluing peer reputation scores in the USNWR formula, did law schools just kill the faculty's golden goose?" His argument, in brief:

[I]t may well be that law schools have permanently lost one of their most significant bargaining chips with central universities in trying to secure more funding for the law school....Law schools could [previously] make the case to central administration that high spending on resources, including on law professor salaries, was essential to keeping one’s place in the rankings. No longer. It’s worth considering what financial incentive this may have on university budgets in the years ahead, and the allocation of resources.....And indirectly, the 40% of the formula for reputation surveys, including 25% for peer surveys and 15% for lawyer/judge, was a tremendous part of the formula, too. Schools could point to this factor to say, “We need a great faculty with a public and national reputation, let us hire more people or pay more to retain them.”....Now, the expenditure data is gone, completely. And peer surveys will be diminished to some degree, a degree only known in March....Some increase in the measurement of outputs, including bar passage data and employment outcomes, will replace it. For law faculty specifically, and for law schools generally, this is a fairly dramatic turn of events.

It's an intriguing and entertaining thought. And I would add something else to it. For lo these many years, the increasing trend in law school faculty hiring has been to hire 1) people with doctorates in other fields and 2) people who have completed, at a minimum, two-year fellowships, and sometimes even longer-term pre-hire academic stints, as witness the increasing number of doctoral students in law in the U.S. who have become full-time faculty members. (Faculty hired from abroad have often had doctorates in law; the increasing number of domestic doctorates in law and the willingness of law schools to actually hire them is the new bit--or rather, the re-new bit, since they used to be more common and then seemed to fade.) In short, one way or another and for lots of reasons, many of them bad, law schools have been turning faculty hiring into a kind of uglier twin of university hiring across campus, seeking parallels or proxies for the same kinds of longer-term academic commitments and training that are reflected in doctoral and post-doc studies in other fields. Law schools have been academicizing their faculty, more or less, and increasingly they have done so even for faculty members without doctorates in other fields. 

Like a doctoral student in other fields, a law school graduate who (after the usual very brief stint as a clerk and in practice) takes the academic path sacrifices several years of active practice, gives up what might have been a remunerative job and certainly a potentially remunerative career path, and instead shows a deep commitment to the academic career track. And the question obviously arises: Why the hell would we, or need we, then pay those individuals more than academics in other disciplines?

Taking a two-year (or more) fellowship, let alone a doctorate in law, and devoting that time to teaching and often-abstruse scholarship is a clear signal of that person's willingness to accept less pay to gain the intellectual joys and many personal conveniences of life in the academy. More than that, it is a clear signal to the rest of the legal market that that person would rather be an academic, a signal that is compounded by taking them out of training and practice as a lawyer for an extended period of time. The "I could always leave this job as a law professor and get wealthy as a practicing lawyer" line, which happily is said more often about law professors than by them, was always pretty mythical. (That includes the organizing myth that being a smart law student in the sense that leads to the credentials that matter for law school hiring is a good indicator that one would be wealthy or successful as a practicing lawyer. Hooey.) But surely it is now not only mythical but nonsensical. In order to get the credentials that get you hired as a law professor, law schools now demand that you make a substantial commitment of time and allocation of intellectual resources that is almost tailor-made to devalue you as a prospective hire in the more practical and lucrative sectors of the legal profession.

If what we want is to hire law professors who walk and talk like academics, why on earth shouldn't they be paid like academics--by which I mean, of course, paid like other academics, folks who teach history or literature or biochemistry? And on the cross-disciplinary front, if we want law professors with doctorates in history or economics or some other academic field, why shouldn't we pay just enough to get them to come to a law school instead of their other academic department (assuming a premium is needed; it might not be, either because they're not as impressive in the other discipline or because we offer other perks that aren't available across campus), and not a penny more? 

As a side note, one might observe that medical school professors do a good deal better salary-wise than professors in, say, analytic philosophy. I've done a little reading about this but don't have much personal experience on this question. But it should be noted that there may be differences between, say, the MD who is hired to teach but also has substantial practice and clinical responsibilities and opportunities, and a pure Ph.D pursuing only pure research, and even if the latter is paid well much of that may be funding-based or supplemented by earnings from intellectual property. We could pursue a hiring model that more closely resembled this, in which case we would demand and expect that our professors be active practitioners. What we are actually doing is seeking people who...look more like analytic philosophers. We ought to pay accordingly, surely.

As Derek suggests, for some time one answer to that point has been the US News rankings and the metrics they used. The change in those metrics reduces the incentive to pay any better than other departments do. (Or we could get rid of rankings altogether, or come up with better rankings. How many of those would actually require high professorial salaries?) Certainly, when added to the US News change, it's harder to justify high salaries relative to the rest of the academy according to the "otherwise they would go into private practice" argument, when our hiring practices are tailored toward finding people who, in Stantz-like fashion, have demonstrated their commitment to not going into private practice--and then damaging their attractiveness to that alternative market on top of it. 

As a further side note, it seems to me that the folks for whom higher salaries compared to other sectors of the university are probably most justified are clinical faculty, because their ongoing practice of law makes their transition back to a competing legal employer more plausible at any given time. They are the ones closest to clinical medical faculty--not we fancy-pants doctrinal types. (Of course, the heavy and perhaps odd or obsessive concentration on "clinical pedagogy" and so on, which makes clinical faculty look more like doctrinal faculty in their academic profile and in their demonstrated commitment to not going back into full-time practice, may militate against that argument.) And there are some faculty who could argue, on the basis of the lucrative consulting that they do, that they really could go back into practice. (That's not me. More's the pity! Feel free to dangle a consulting offer at me.) It seems to me the answer is to give them opportunities to supplement their income with such consulting, while keeping their university salary closer to the one the rest of the campus subsists on. The change in US News metrics suggests that if they threatened to leave under such circumstances, the institution qua institution would have less reason to fear their making good on the threat.  

One last aside: One way law schools manage to pay as much as they do is by soliciting donors for endowed chairs--a rather large number of them. I dare say the money could be much better spent. I wonder whether some of those donors would be as eager to give if that money weren't going to a named chair, even if that money could be better used in other, less visible ways. But if Derek's general argument about the effect of changing the faculty reputation metric is correct, then one might think there would be less incentive for deans to to go out and fund-raise for those chairs, as opposed to using their time in other ways or focusing more of their energy on raising money that might be smaller in amount but better suited to the actual needs of the institution.   

Although it's not strictly necessary, I should add that my goal here is not to criticize the model of hiring we appear, willy-nilly, to have chosen, or to make some standard point about academics vs. practice. There are obvious benefits to be had from people specializing more deeply. (I do think our current hiring model is not well thought out, is, shockingly, engaged in more reflexively than thoughtfully, and is bad for a number of different forms of diversity. But I still can see reasons for it and benefits from it.) The "intellectual joys" I mention are real, and emphatically include teaching. Abstruse scholarship is not necessarily bad and practical scholarship is not necessarily good; you've got to read the actual piece before deciding whether it's any good, among other things. Faculties can benefit from having more practically-oriented and more abstract or purely intellectually oriented members. But all of this is not the point of the post, which is simply to ask how much, given the structures I've discussed, we actually need to be paying in salary for the kind of faculty that we appear to want most, and perhaps how much university administrations ought to allow us to pay.   

Derek also has some useful thoughts in his post on the value of having a ranking-independent institutional vision, something that law schools have generally not had to bother with as long as the golden calf of US News rankings and the worldview they represent served as a substitute. I'll offer an addendum to that in a future post.   

More on the "News"--and on "Matrix"

Here’s another item on the state of the news media, and on why we should guard against both the weakening of elite legacy newspapers and the disappearance of local news. The emphasis in this case is on the local side. This one involves a series of recent stories that have been published by Floodlight News, which describes itself as "a nonprofit newsroom that investigates the powerful interests stalling climate action," in collaboration with conventional news organizations. I don't consider advocacy "newsrooms" a substitute for straight news reporting, and I’m uneasy about such collaborations, and about the degree to which NPR and other news entities take money from and work with groups and funding organizations with particular interests and viewpoints. It's a perilous arrangement. But the reporting seems solid.

The stories involve an entity called Matrix LLC, which charmingly and vaguely advertises itself on its remarkable web page as "A Comprehensive Approach to Problem Solving." I'm surprised a phrase like that hadn't already been trademarked by David Brock or Jack Palladino. I would give Matrix a clearer description, but it dislikes clear and candid self-description ("'Invisibility is more powerful than celebrity,' reads a plaque hanging in Matrix's Montgomery office," notes one story). A lawyer for Matrix, on whom more below, calls it “a strategic communication resource for companies in a wide range of industries,” which is close to no description at all. Its clients are equally reticent. Frankly, I'm not sure what to call it. "Political consulting firm" hardly does it justice. "Secretive and pernicious organization" would be a good start. 

The first story, a collaboration between Floodlight and The Guardian that ran in July, describes, inter alia, apparent surveillance of journalists and politicians, often in the interest or at the apparent behest of two major power utilities, Alabama Power and Florida Power and Light (FPL). Drawing on internal documents they obtained, the reporters suggest that such operations were carried out by Matrix employees directly, or funded by and through Matrix.

One line in that story reads: "Matrix also exerted political influence through the press, with its operatives acquiring control of a Tallahassee-based politics news site, The Capitolist. That gave Matrix consultants and FPL executives input on Capitolist stories." That sort of activity is the basis for the two most recent stories, both published this week. The first is an NPR/Floodlight collaboration describing, in awful detail, "six news outlets across Alabama and Florida with financial connections to the consulting firm Matrix LLC." These online news outlets have varied politics but one thing in common, the story suggests: their willingness to carry water for Florida Power and Light and Alabama Power, attacking its critics and those who advocate for such outlandish schemes as actually holding a formal rate hearing for the first time in decades. Here's a passage:

A tally of the five still-functioning sites show they have a collective audience of 1.3 million unique monthly visitors. Many of their consumers are political professionals, business leaders and journalists — people who help set the agenda for lawmakers and talk radio shows in both states.

These readers have been unknowingly immersing themselves in an echo chamber of questionable coverage for years.

Matrix shrewdly took advantage of the near collapse of the local newspaper industry and a concurrent plunge in trust in media in propelling its clients' interests.

"The reduction in just the size of the press corps covering state government has created a vacuum that I think tends to be filled by people who have agendas beyond serving the public interest," says former Miami Herald executive editor Tom Fiedler.

That's true. I've used at least some of these sites. I assumed they were reasonably trustworthy. And they were certainly necessary, given the consolidation, decline, and death of so many local news outlets in this region, as well as the rest of the country. (This also reminds us why it's so important to maintain the quality of elite national newspapers, which have the resources and skills to provide coverage of events beyond Washington, LA, and New York. They can't or won't do so if those resources are devoted instead to daily recaps of jokes on late night TV, light features on Christmas at Dollywood, or major takeouts on 17th century history. Their decline into collections of thought-pieces by grad-school dropouts and wall-to-wall coverage of Twitter controversies disserves news coverage in the hinterlands as well as its power centers.) In their place, we have the sorts of online "news" organizations that have "collectively received, at minimum, $900,000 from Matrix, its clients, and associated entities between 2013 and 2020."

In the piece, "All of the media organizations deny their coverage was shaped by those payments and deny they acted unethically." In the same story, the editor in chief of an outlet called Alabama Political Reporter "acknowledges that Matrix also paid for reporters to do research for the firm, an atypical practice for newsrooms." His deathless justification: "We have to make money." Particularly poignant, albeit disgusting, is the story’s discussion of an outlet called Florida Politics:

Of all the leaders of sites with links to Matrix, only one, Florida Politics Publisher Peter Schorsch, acknowledges he doesn't observe traditional journalistic practices when deciding what to cover.

In an interview, Schorsch says he practices "combination journalism": He says Florida Politics' coverage is not dictated by advertisers, but it often gives them favorable coverage. And, he says, sometimes he gives them more coverage.

"Once a relationship is developed, if they come to us with the pitch [to cover a story], yes, they are going to be at the front of the daily line as opposed to a national advertiser making a pitch who I've never dealt with before," Schorsch says. "I will say there's a very big wall in our operations" between advertisers and coverage.

A 2021 invoice shared by Schorsch shows that Florida Power & Light paid the site $43,000 for advertising, enough to cover the cost of a full-time reporter. Schorsch says his reporters do private research for clients too, though he would not specify what that entailed.

By his own account, Schorsch also was paid roughly $100,000 by Apryl Marie Fogel, the publisher of Alabama Today, another of the Matrix-linked sites. The money went for help with "editorial and digital tech services," he tells NPR and Floodlight. Fogel, who is also former Matrix CEO [Jeff] Pitts' romantic partner, received more than $140,000 from Matrix, the firm's records show. (She declines to comment on her ties to Matrix, saying "not my monkeys, not my circus.")….

[Schorsch] defends his model of journalism.

"I'm not trying to pretend that I'm an angel or anything like that," Schorsch says. "But ... man. If I go, there's nothing left in this f***ing space. There's like the Tampa Bay Times, the Miami Herald, and you're down to nothing."

It should be obvious that there is journalism and there is not-journalism. "Curatorial journalism," for example, is not actually journalism. And certainly "combination journalism" is not either. What three decades of enthusiastic references to “democratizing the press,” “citizen-reporters,” “public journalism,” “cheap speech,” and so on miss is professionalism, a concept that does not include within it detailing one's reporters to do "private research for clients." At that point, you might as well call yourself a private investigative agency that happens to publish a pamphlet from time to time to amuse the public. But Schorsch isn’t wrong when he says there's not much left in this f***ing space.

The third, but I hope not the last, story, also with NPR, is no less astounding. You should just read it. In short, it describes a freelance producer who did work for ABC News in Florida—while also taking thousands of dollars from Matrix and apparently using her credentials as an alleged journalist to attempt to undermine and embarrass individuals whose positions were uncongenial to Florida Power & Light.

The usual denials and refusals to comment are involved. An added twist is that the two leading figures at Matrix, Joe Perkins and former CEO Jeff Pitts, fell out when Pitts left the entity and are in litigation, so there are plenty of opportunities for each to blame the other. In other stories, when asked what Matrix has actually done for them, its clients have said things like, "As you know, under current law, consultants and advertising firms are not required to detail expenditures....Matrix has assured us that should the law change, they will be more than happy to comply." It is apparently unthinkable that a Matrix client might volunteer information about what Matrix did for it, or instruct its client to do so. (The client in this case is the mayor of my university’s hometown, Tuscaloosa’s Walt Maddox.)   

I should add that I’m less concerned here about lawbreaking; it's not clear any is alleged. Rather, I'm disturbed by the corruption—in the sense, more important than the narrower sense of dishonesty or illegality, of moral contamination or depravity. Most corrupt conduct is perfectly legal. It's the way the world works, although being comfortable with phrases like "it's the way the world works" is itself pretty good evidence of one's corruption. (The older I get, the more I appreciate the value of naïveté. The journey from innocence to experience is a lifelong one. The journey from experience to corruption is short and swift.)

I should be clear that the corruption doesn’t run along partisan lines. As the stories note, Matrix was happy to subsidize "news" outlets of varied politics, as long as they came through in the clinch. The list of folks who have used Matrix's services or received its money, only some of whom have ended up in prison or other legal trouble for various things, cuts across party lines, even though Alabama is largely a one-party state. It includes former Democratic governor and convicted felon Don Siegelman and former Democratic gubernatorial candidate and current Tuscaloosa mayor Walt Maddox. But it has also helped Republicans, business interests, business-aligned PACs, and so on. It includes some politicians I used to respect, although respecting someone who consorts with Matrix is impossible for a decent person. Using corruption in the small-c sense, I have long held that the problem with my home state of Alabama is that it leaped directly from 19th-century corruption into 21st-century corruption without much of a 20th-century good-government phase. Matrix is the dictionary definition of 21st-century corruption, and it is bipartisan. Its corrupting effects are evident. Maddox used to be thought of as a pretty decent mayor. It's been some time since anyone sensible has said that about him.

That took me a little further afield, for reasons I'll note at the end. But the connection to the news is evident. Only some of our readers live in the usual metropoli, and even those places have been losing their newspapers at a rapid rate. (I won't speak of broadcast news, for evident reasons.) If you live in most of the country, you too have probably turned to what look like independent online news sources that cover news or local events in your state or region. Of course it's the Internet, and you may approach them with reasonable skepticism—as you may also approach more established news entities. But if they look legitimate, seem to act legitimate, and occasionally carry a useful and decent story, you may think you are getting a proper substitute for the local papers we used to have. The Matrix stories indicate otherwise. As the story about the ABC producer suggests, these activities make it hard to assume that even established news entities are able to police their own field. As for the others: well, "We have to make money." 

Personal disclosure: Stories about Matrix are particularly interesting to me because it was heavily involved in my wife's unsuccessful reelection campaign when she served on the Tuscaloosa City School Board, with Matrix having been paid some $100,000 by a slate of candidates in that local school board race. (The why is beyond me. But construction is a big deal in any city.) Its clients included my wife's successful opponent, Cason Kirby, a graduate of my law school who paid Matrix some $20,000 during that campaign and who now has the dubious honor of having acted as a lawyer for that entity. (His wife, Madolyn Kirby, was or is a Matrix employee, including being paid by Matrix while serving, apparently without salary, as campaign manager for Walt Maddox’s gubernatorial campaign.) It was also paid by Lee Garrison, the apparent architect of running that slate, who while on the board regularly advocated for the school system's bond business to be handled by the investment banking firm of Frazer Lanier. After his political service, he went to work for that firm, which later on, over objections, became the sole firm handling a $500 million urban development plan that has been Mayor Maddox's signature project. Finally, a breeding ground for both employees and clients of Matrix is the Machine, a student group, also secretive and pernicious, that has operated at the University of Alabama for decades and was involved in helping defeat my wife. 

I think this disclosure is called for, but it does not affect the accuracy of anything I wrote about, or my concerns about the corruption of--among many other things--state and local news sources. It affects only my sense of pleasure in sharing these stories.  

 

Twitter as Institutional and Self-Corruption

At his Substack page, Josh Barro has a useful intervention into the relationship between Twitter and journalism. As a former journalist--very briefly, but it was a formative experience--with an abiding interest in the press and its role both in the First Amendment and in our social, legal, and political firmament, I found it to be a good one-stop source of reasons why the addictive relationship between legacy press institutions and social media has been so damaging. I say so somewhat sympathetically, since it is clear that the managers of those institutions hoped they would help stave off decline in an industry facing so much competition from online sources and so much apathy from readers. But only somewhat sympathetically, since it has long become clear both that this is a dubious hope and that the strategy has maimed the patient to a degree that calls into question the point of keeping it alive. Barro's bottom line is that rather than demand that journalists recently thrown off Twitter (quite wrongly, although I think Taylor Lorenz is a one-person wrecking crew for the quality of any serious newspaper she has worked at) be reinstated, newsroom managers should treat the event as "an opening for [them] to do what they ought to have done long ago: Order their employees to drop their Twitter addictions, stop sharing their pithy opinions in an effort to build a personal brand, and get back to work." Some arguments he offers, mixed with a few observations:

• "Twitter’s usefulness for reporting has sometimes turned into a dependency." Quite right. It is astounding the number of stories in the Times--the serious paper I read most frequently, despite its evident flaws--that report on Twitter controversies, rely on tweets for color and quotes, or use Twitter as their sole or near-sole fund of sources. As he notes, using social media as a databank for sources and quotes is "also biasing and distorting — the loudest voices on Twitter within a given field, such as medicine, often aren’t representative of broad opinion within the field." And it fosters incredible laziness. Former American Lawyer editor Steven Brill, a great journalist in his own right, used to instruct his reporters, when working on a piece about a lawyer at a firm who declined to cooperate with a story or profile, to pick up the phone and call every single person at that firm until they found people willing to talk. When Woodward and Bernstein received a list of employees of CREEP, they visited every person on that list, in person and often multiple times. That's called "shoe-leather reporting"--talking to numerous people, reading innumerable documents, and doing it all over again. Trawling or cherry-picking social media is no substitute for it. But it is easy--and, not insignificantly for newspapers, fast and cheap. 
• "Twitter has made it very difficult to enforce editorial standards." That's a correct claim, in my view, although very broadly stated and without much causal explanation in itself. But Barro offers more here. One problem, he notes, is that reporters' addiction to opining online has damaged readers' trust. Of course this is not the fault of social media alone; in the last several years many journalists have argued that journalists ought to abandon what's been called "a model of professed objectivity." I think they're wrong. (And the rote response that "objectivity is a myth" is woefully insufficient. Of course it is: It's an organizing belief and model of conduct, one tied to that institution's model of professionalism. That it is not perfectly achievable has been understood by just about everyone always. It is still a better organizing ideal for most news organizations than the alternative--and although its contemporary critics argued that abandoning it would help readers, lead more clearly to truth, and avoid obfuscation, it has achieved none of those results. Exploring the nature of a myth is always useful; equating "myth" with falsehood or assuming that the opposite of that myth is necessarily a good thing is fatuous.) Twitter and other social media have intersected with that point because loudly stating those views online drives up the (online) popularity of those individuals and is good for their personal advancement and their egos. That doesn't mean it's good for their institutions or for journalism.  Barro adds that the tendency toward conformity online, the desire to keep one's admirers and avoid getting shot at from within one's own lines, exacerbates the tendency of the reporters who are eager to share their views and politics--which are generally the same views, within the elitepress--to fall in line and avoid messing with the conventional wisdom of the moment, while causing others to remain silent for the same reasons. 
• Barro argues that "Places like The New York Times — having observed that their staffs are constantly expressing their biases out in the open, in a format that admittedly gets a lot of engagement — have increasingly brought that viewpoint-driven journalism into their news pages, becoming explicitly liberal rather than implicitly so." Again, I think this is right. To use the overused buzzword of the day, we might see this as a problem of political economy. In their effort to survive, newsrooms have been less likely to insist that journalists maintain professionalism and more likely to give in. That's true both at a micro level, since individual reporters develop their own fame and constituencies online and make it costly to resist them, and at a macro level, as newsrooms both adapt to and buy into the raft of premises that encourage some reporters to opine all day long. That is not to deny the presence of sincere beliefs about these things. But like anything else in America, these beliefs are also monetized and incentivized, and their formation and growth is in part a matter of the economic incentives to act in this fashion and then construct, knowingly or not, a set of beliefs and rationalizations to justify it. Many newspaper reporters who abandon old-fashioned standards of professionalism to opine about politics and culture "sincerely" believe what they argue, but those views are also shaped by ambition and the love of fame. Many newsrooms that justify this behavior "sincerely" believe they are evolving to meet changing views and a new generation of reporters, but those views are also shaped by a love of clicks, a need to survive, and a fear of online and offline staff rebellion which they lack the backbone to resist. (A.G. Sulzberger has many possessions, but a backbone is not one of them.) 
• Barro argues that "marinat[ing] in the stories and the viewpoints about those stories that dominate on the platform" has "impaired news judgment." One might fairly observe, perhaps by quoting Pauline Kael, that reporters at the Times and similarly elite institutions were always marinating in something, a culture or locale that affected their worldview. But that does not make his observation incorrect. The stories and debates that draw the most attention on Twitter and other social media do not necessarily reflect the lived experience of millions of other people and most certainly do not necessarily reflect their priorities; but they increasingly seem to dominate what gets reported and how--and what gets neglected. I don't mean that in a conspiratorial sense, but in the sense that the fact that their staff live in a 24-hour world of artificial controversy has led these papers to ignore or give unduly short shrift to many other stories while focusing inordinately on the kinds of pseudo-events and pseudo-controversies that dominate that space and get attention there. 
• Barro argues also that Twitter and other social media sites, or semi-social media sites like Slack, have encouraged newsroom revolts. He adds, "Of course, a lot of people like the idea of more worker power, but the workers here tend to have bad ideas about how to run a news organization because they are so ideologically unrepresentative." I would put the latter point a little differently. I agree that they may well have bad ideas about how to run a news organization, but I'm not sure the problem is ideological. It's more that they don't care about running a news "organization" qua organization. Their interests are more personal and individual than institutional. In truth, many of them doubt the value of institutions altogether, at least insofar as those institutions act as if they have a particular function--and thus limits on what is within the expertise and jurisdiction of that institution, and on what they should and should not do, concern themselves with, or allow within the context of that institution's operations. Others, to be sure, are pushing on the definition of the institution and its function, and this is a natural and valuable part of debate and change within institutions. But in some cases the argued limits are so vaporous, the arguments for the interconnectedness of everything (and thus the obligation of the institution to do and say everything) are so vague and encompassing, the institutional loyalty is so thin, and the sense that an institution has particular functions and limits, that this is a good thing, and that people who want to do other things might perhaps do so elsewhere, is so lacking that the position is closer to calling for the dissolution of institutions and institutionalism than of calling for their evolution or reform. To maintain institutions under those circumstances requires managers who have both a sense of what the institution is there for and a willingness to assert and defend that sense, including against its own members. Although many discussions of these issues focus on the younger rebellious generation and its arguable errors, the primary responsibility and the greater problem is the lack of either will or a clear sense on the part of the older managers. The greatest crisis of our time is institutional, and the crisis lies as much or more with those who are charged with maintaining them as with those who are challenging or simply not interested in them.
• As Barro notes, that institutional point is closely related to another one: individual reporters, especially star reporters, "have gained unsustainable power at the expense of institutions." (As he notes, citing a useful piece on the relationship between stars and institutions by economist Allison Schrager, this issue is not limited to newspapers, but applies to a number of institutions today.) "One reason it’s been hard to rein in reporters on Twitter is they have their own reasons for behaving as they do." By being loud and opinionated and frequent in their tweets and posts, they get attention. (Not that that had anything to do with the rise of Prawfsblawg!) They become famous. They become "brands." They can monetize those brands. They can advance their own careers, with or without any benefit accruing to their institutions. The quality of their underlying and actual work, the thoughtfulness of the opinions they needn't voice but keep voicing anyway, the falsifiability of their claims, their willingness or unwillingness to admit error or correct the record, all these have some effect. But all of these are dwarfed by their fame and their "brand." (Not least because of polarization: their friends will happily forgive their errors or skip checking for them, and their adversaries will realize their own reputational and financial gains by harping on those errors. In the status game, polarization is a win-win scenario.) They needn't care about their home institutions; they can always leave, and as long as they remain, their weak-willed managers will probably give in to them. Of course part of this is about money, for both the reporter and the home institution, and about self-advancement in a fairly mundane sense. But money is not the only good people like to amass, and surely the profit to their status and ego is a significant element.

I would add that because the data show a strong liberal identification in reporters at elite newspapers, a lot of this can be viewed in tediously political or ideological terms. (I leave out things like magazines that take openly political views, and where it is perfectly natural that most people who work there will be associated with a set of political and cultural views.) But that seems beside the point. Their politics dwindle in importance next to their revealed preferences. They may call themselves liberal, progressive, conservative, anti-liberal, anti-capitalist, anti-elite, pro-justice, communitarian, integralist, or anything else. But their actions suggest the standard American loves: of fame, status, and money. Those are the truest, deepest politics of most social-media celebrities who are both addicted to those sites and addicted to leveraging them for personal gain, whether in financial or ego terms. (This is true even of some of the voices who rail most loudly about things like "disinformation" and "misinformation," however poorly defined, and argue for greater control of social media and perhaps of information more generally. They may believe these things; but what matters most is that they have built a profitable brand by arguing for them on social media.) Unless they are willing to take strong stands and suffer for them in the short run, institutions are no match for this kind of rampant self-serving individualism.

We could call this a social-media problem, or we could see it as a cultural problem, an institutional crisis more generally in contemporary society, that is amplified and exacerbated by social media. Either way, I think Barro is right to see the current moment not in pro- or anti-Musk terms but as an opportunity that has been handed to legacy news institutions. They ought to use the moment to reassert a modicum of responsible control: to take their reporters, qua reporters, off Twitter and other social media and to break a cycle of addiction that has not only failed to rescue them but has done incalculable damage to them as institutions.  

Does any of this apply to other institutions? Does it apply, for example, to academics, including legal academics? Does it apply to their own relationship to Twitter and other social media, their own interest in individual self-advancement, their own ideological conformity, their own damage to the general profession and particular institutions they are supposed to serve, and the failure of their institutions to address it--indeed, in many cases, those institutions' complicity in encouraging it? That question will have to wait for another time. (But the answer is yes.)  

Where is the Comparativism in Criticisms (or Defenses) of Originalism?

The New York Times this past weekend ran an interesting story about the status of foreign judges who sit on the high courts of other nations, noting that it is "a curious phenomenon among Pacific island nations" but also occurs elsewhere, including "Hong Kong, the Caribbean, Africa and small European nations." Canadians, and I am still one, may be familiar with this phenomenon because of controversy over the role of its former Chief Justice, Beverley McLachlin, who insisted on staying on as a high court judge in Hong Kong despite the resignation of a couple other foreign judges, arguing that that court is still independent of interference from the Chinese government. And I recently heard an interesting talk about the personnel of the U.S. Virgin Islands courts, who often come from neighboring islands and specifically from Puerto Rico. But for the most part I cannot say I had heard or thought much about the phenomenon of "foreign judges on constitutional courts." 

The general subject is surely interesting, as is the article's focus on those judges' unsteady status given the domestic politics of those nations. But what struck me the most was this passage, relying on an interview with Dr. Anna Dziedzic of Melbourne Law School:

Aware of their position as outsiders, foreign judges tend to focus on interpreting the text of a country’s constitution based on what they see as the authors’ original intent, which makes them less likely to make decisions that create social change, Dr. Dziedzic said.

Obviously this is interesting in any number of ways, not least because it offers a justification for originalism as a method of constitutional interpretation that is consistent with one or two main strands of justification for originalism: that it is less socially disruptive, and in particular--appearing here in a particularly salient context--that it leaves potentially socially disruptive changes to political rather than judicial actors. And it is interesting because that justification is pragmatic and institutional rather than relying on a theory of authority or of what is necessary for proper textual interpretation.

But what is most interesting about it is that, like any constitutional law professor, I have read the usual leading or popular criticisms (and defenses) of originalism--and I had no idea, or none that I can recall, that this phenomenon existed. Of course I was aware that Australia has been the site of interesting uses of and debates over originalism, and I am aware that, particularly compared to its first two decades and despite being pooh-poohed by much of the academic and judicial establishment, originalism has become more of a live topic in Canada. (Americans are still accustomed to treating Canada as an originalism-free zone and occasionally pointing to it for that purpose. I think that view is oversimplified, outdated--it certainly used to be quite true--and too inclined to accept the complacent statements of that country's establishment as fact.) But that was the extent of my live knowledge.

In making such an admission, one risks making the fatal error of winning David Lodge's game of "Humiliation." (As the Guardian summarizes it, in his classic academic satire Small World Lodge imagines a game in which academics compete by confessing "embarrassing gaps in their reading. One of the characters in the novel, in his determination to succeed, becomes so obsessed with winning that he admits to never having read Hamlet--as a result of which, he is promptly fired.") Perhaps, in admitting that I hadn't seen much about this in discussions of originalism, I'm neglecting articles or books that no one should admit not having read (or, in fairness, having read and then forgotten). Surely I have, in any event, missed a few exceptions. And one also risks admitting what I think is true: that many American constitutional law scholars, present company included, don't spend anywhere near as much time as they should looking at comparative constitutional law. Of course will find some and perhaps many discussions there, and in doing some follow-up browsing after reading the Times article, I certainly found some relevant treatments, by, among others, Yvonne Tew, Sujit Choudhry, David Fontana, Katharine Young, Ozan Varol, Kim Lane Scheppele, and Lael Weis. All that said, and keeping in mind that originalism and originalist theory are things I read about in the course of general reading in my field rather than focusing my own research on those topics, I think I can say with confidence that as a general reader of this sort, I would remember it if the topic came up with any real frequency.

I wanted to test my intuition, so I did a very rough Westlaw search. I started with articles written by some of the most publicly prominent critics of originalism--not necessarily the best or deepest critics, but some of the critics who are most likely to get lumped into standard "For leading criticisms of originalism, see, e.g.," footnotes, and to write books or op-eds designed to influence general professional-managerial class assumptions about the topic. My focus was on domestic constitutional law scholars who meet that definition; I did not include comparativists. And I looked within that set for 1) relevant references to any of the countries that have been cited as using originalism of some form, including Malaysia, Singapore, Turkey, India, Australia, and Canada, or 2) relevant references to the authors I have noted above. I should note that there are debates about whether what some or all of those countries are doing (or debating: there are now a few Canadian judges who would describe themselves as originalist, but it's still far more a matter of minority academic argument than of judicial practice) can really be called American-style "originalism." That's fine. I would have accepted some acknowledgment of those debates as relevant.

As I say, it's a very rough search. I'm sure it could be done better. It certainly is not fine enough to reveal all the exceptions. But it does a reasonable job of showing the general norm, at least for this set of authors. And I did a couple of follow-on searches, expanding the list of authors and of sources the authors might refer to, including, at the bluntest level, a reference to a standard casebook like Tushnet and Jackson's comparative constitutional law book. 

You will not be surprised, given the windup, to hear that relevant references almost never came up. There were two real exceptions. Jack Balkin, having been pushed on this point by two comparativists--you can't get more of a pushback than an article (by Kim Lane Scheppele) titled "Jack Balkin is an American," even if I am not convinced by that article's assertion of just how nonexistent originalism is elsewhere--gives genuine discussion of the topic in more than one article, including his initial response to those pieces. And while I am, again, inclined to think he overstates the rejection of originalism elsewhere, Jamal Greene has given serious consideration to the topic of judges in other nations using some form of originalism. (David Fontana's useful piece "Comparative Originalism" is a response to one such article from around 2010, and my sense from an outside perspective is that it successfully encouraged Greene to go further in treating the topic in subsequent pieces.) Greene is certainly a prominent scholar and critic of originalism and Balkin is certainly a prominent scholar and something of the topic as well.  

And that's just about it. An occasional glancing reference to Canada or Australia at most; usually not even that and, in the case of a couple of the most publicly prominent academic critics of originalism, critics who also retail their criticisms in the popular press, absolutely nothing. On their map, "the United States" might as well be retitled "The Known World" and the rest nothing but blank space. Once you start not seeing references in these writers' work to comparative constitutional methodology (including, in at least the countries mentioned above, originalism or debates about originalism), you start not seeing it everywhere.

This would not be so surprising coming from con law scholars making glancing references to originalism. One doesn't expect every piece of domestic legal scholarship to look at how other nations do things. (That is, one isn't accustomed to expecting it. Maybe the low expectation is the problem. Does it really make sense to write regularly about, say, an area of private law without discussing the jurisprudence in that area of other common-law countries?) And as I've said, I do comparative work all too seldom. But in the areas I write about most often, I at least read and sometimes discuss what is done in other countries. How could one not do so? So I do find it surprising that if one is writing a major article, let alone an entire book, focusing on and criticizing a particular method of constitutional interpretation, there would be no reference at all to countries whose experience might confirm, confound, or complicate one's criticisms. If all you focus on is a method, surely you should be interested in the absence or, as we have seen, presence of that method elsewhere. I don't expect everyone to be aware of the experience foreign judges interpreting the constitution of their host country; I wasn't. But since, as it turns out, there are scholarly treatments of the practice, and more broadly of originalism abroad, I ought to expect those who focus closely on the topic of originalism to know that and include it in their discussions. 

The same thing can be said of advocates of originalism, and the same results apply. A similar Westlaw search conducted with prominent academic/public defenders of originalism substituted for the names of its prominent critics revealed virtually nothing of relevance. Again, there were exceptions, most prominently William Baude. For the most part, however, the cupboard was bare of any revealed knowledge of or interest in full-on or trace practices of originalism in other nations' courts.

One can offer all this simply to point out an interesting point in an interesting news article, or, in a friendly way, as notice to these scholars of a missed opportunity. Or one could offer it to point out the unfortunate frequency with which scholars of domestic constitutional law fail to look to comparative materials. Comparative constitutionalists already know this, of course, but it never hurts to remind the rest of us.

I am inclined to say two more things. Two fairly standard criticisms of originalism, which thus are relevant for both the critics of originalism and its defenders, are that it is impossible and exceptional: it can't be done, and the idea that it can and must be done is uniquely, oddly, unfortunately American. Again I quote the passage from the Times: "Aware of their position as outsiders, foreign judges tend to focus on interpreting the text of a country’s constitution based on what they see as the authors’ original intent, which makes them less likely to make decisions that create social change, Dr. Dziedzic said." I do not say that these judges succeed, either in getting to any accurate sense of original intent or in channeling social change to the political branches rather than the judiciary. But it is striking nonetheless that they choose this method and for these reasons. Depending on how much they actually succeed, surely this is relevant to the question of impossibility.

On the second point, it does seem true to me that the United States, and American constitutional law, among other aspects of American life, often involves a sense of exceptionalism and parochialism. It's a sense that tends to be shared by both champions and critics of the United States or particular legal or constitutional policies, since both are animated by a sense that this country has a unique and perhaps providential greatness--or is failing to live up to a unique and perhaps providential greatness, or is living up to a unique quality of sin and evil. (In this country, the Puritan past is never dead; it's not even past.) But writing about originalism as if it is an utterly American sin (or virtue), while betraying no interest in whether the practice has occurred or continues to occur elsewhere and despite the presence of relevant information about that very topic, not only makes any such criticism (or defense) less than definitive. Surely it is also a perfect example of American exceptionalism and parochialism.  

 

 

Integralism Gets its Soft Launch

I had always assumed, based on my reading in the area, that any prospect of an American integralist state was a dead letter, but that if it did occur it would involve burrowing from within rather than a more forceful, open, top-down approach. I was wrong on both counts. I was right on a third point, but it's hardly anything to boast about. Most serious students of integralism had predicted that, when it finally came about, its political and intellectual leadership would come not from Cambridge or Heiligenkreuz or the back pages of an obscure journal like Newsweek, but from Kanye West.

RIP: Cecilia "Cissy" Marshall, 1928-2022

The Washington Post reports that "Cissy" Marshall, Thurgood Marshall's second wife and the guardian of the "reputation and legacy" of the late civil rights giant and Supreme Court justice, has died at the age of 94. Its obituary is interesting and moving, if rather brief. The Times has not gotten around to running its obit yet, although I am reasonably sure it will. (Only "reasonably" sure, because the Times's obituary selection choices have become ever more unusual, unpredictable, and occasionally rather arbitrary. Although I was saddened to learn of the death of the fellow who voiced Batman in cartoons, I am still waiting on a Times obit for Joseph Raz.)  

The Court and Politics: An Update

Two points, which seem to fit reasonably well into what I wrote on Saturday about the latest Supreme Court fracas:

1) "If we use this story as an entry point for thinking about casual, legal corruption in the legal and political world, is it relevant that today's story will itself be used by various groups to raise still more money, and that even ostensibly legitimate responses to it--recusal motions, calls for investigation, and the like--will in turn, as the people engaging in them will know full well, open productive new fundraising opportunities?"

Of course there have been calls for investigation, by both senators and advocacy groups. Of course that is reasonable and at least "ostensibly" legitimate. Of course senators are always fundraising off of these actions, for themselves and for funds to donate to colleagues and candidates as deposits in a favor bank. And of course the press releases by these groups are never far from the large, brightly colored "DONATE" button on the website. Like sharks, they must keep moving and feeding or they will die. 

2) In today's follow-up story in the Times, there is this passage:

Louis J. Virelli III, a professor at Stetson University College of Law, said in an interview that a law requiring the justices to disclose whom they meet with, especially parties who may have interests in a decision, would be constitutional, and it might restore some of the public’s faith in the institution.

I have no beef with the "parties who may have interests in a decision" point. But I wonder how broad a scope of disclosure Prof. Virelli has in mind when he suggests that the justices "disclose whom they meet with." Does that include all social contacts and friendships? Only official in-chambers meetings--which presumably would create an incentive for an increase in the number of unofficial meetings out of chambers? Given that some of these meetings and social contacts are only, in the words of my earlier post, potentially corrupting, rather than actually corrupt, would a list of disclosures restore faith in the institution? Or would it actually serve to undermine it even if those contacts are proper in law and in intent? One can imagine a justice meeting with a bishop, for instance, for legitimate or at least non-illegitimate reasons. One could then in turn imagine an advocacy group researching that bishop and discovering various anti-abortion speeches, and using that contact to raise money questions about such contacts. Obviously the polarities could be changed depending on the justice, the person the justice meets, and the group capitalizing off of the disclosure. All this relates to the questions I asked on Saturday: "What is the right balance between isolation and non-isolation for judges and justices?" and "Would we be worse off without any insider culture?" 

I am not against doing anything at all. (Regardless of whether this story pans out in full; as I wrote a couple of days ago, even if the Justices acted appropriately, if naively, the story at least suggests pretty unimpeachably that some individuals or groups sought to meet, cultivate, and influence the justices through friendship and other contacts.) But I'll repeat what I offered on Saturday: "Are the norms that are supposed to guide judges and justices today realistic and workable? Or, by being unrealistic and unworkable, do they encourage and lead to corrupt approaches, secrecy, and so on? Should those norms and rules--to the extent there are any actual rules--be enforced more strictly, but also relaxed?" We might indeed want to establish, in law or by norms, new rules governing justices' contacts. But in doing so, we should ask just how insulated we want the justices to be--and one natural and predictable response to an onerous or "transparent" and thus weaponizable disclosure rule would be for the justices to retreat into isolation rather than have any social or professional contacts at all--and seek rules that make sense in light of that desired end-state. 

And we should still ask why the hell we invite the justices to things like the FedSoc or ACS, the AALS, and individual law schools. I still don't see much of a point and I still think there is a small-c corruption to it that outweighs any actual edification we get from such appearances. But I should apply to that assertion the same caution I urged of others: namely, that we should always ask what the right default level of either contact or isolation is for judges and justices. 

 

Please Be Interesting!

Today's New York times story in which, to quote the lede, "a former anti-abortion leader has come forward claiming that another breach occurred in a 2014 landmark case involving contraception and religious rights," can fairly be described as scandalous, and as such will give rise to all sorts of uninteresting commentary. Although I think that "novelty," as it is treated, is an immensely silly standard in legal scholarship, I acknowledge that no such standard applies to public commentary or should. Although public commentary often favors "fresh" takes, mostly they only need be hot, no matter whether they are stale and rewarmed or not. And a "take" doesn't need to be "novel" to be true or make a useful contribution. (The same can be said of legal scholarship, which is one reason the novelty fixation is so silly.) Nevertheless, given the amount that will be said about this, it would be nice if people--especially people who know better--tried to ask slightly more interesting questions about the latest news. I don't think most of the questions below are terribly interesting and they are certainly not novel, but they might do for a start:

1) One is more a comment than a question and is decidedly not novel: In politics, or law-and-politics, the scandal almost always is not what is illegal but what is legal. One might add, the scandal is not just what's legal, but what's legal and accepted the vast majority of the time. To put it in question form: How many of the actions discussed in this story are not only legal but generally taken for granted? When do we bother noticing them and when are they treated as just part of the way the world works? 

2) What is the right balance between isolation and non-isolation for judges and justices? One possible result of a story like this is that the justices will retreat ever further into monkish existences. Perhaps they should; perhaps they can't be trusted to do otherwise, or can't trust others not to abuse their access. Certainly there will be calls for the justices to change their behavior as a result of this story. And it is certainly a common observation that judges and justices should in all sorts of ways retreat from many aspects of their former lives. But it is also common to hear complaints that the justices, especially, are too insulated from real life, too disconnected from the currents of the times. What's the right mix? In thinking about that, we should not take the current default, or some imagined current default, as a given. 

3) Is it the current degree of insulation that is aberrant, and not the departures from that insulation? I offer this in no way as exculpatory of any particular current conduct. But the story of the Court in the 20th century, as a minimum, and of its justices' contacts with politicians and others, without excusing any particular conduct today, is one of frequent contact with--indeed, immersion in--political life and political friendships by the justices. This relates to question 2. We might ask: Are the norms that are supposed to guide judges and justices today realistic and workable? Or, by being unrealistic and unworkable, do they encourage and lead to corrupt approaches, secrecy, and so on? Should those norms and rules--to the extent there are any actual rules--be enforced more strictly, but also relaxed? Ruth Bader Ginsburg's friendship with Nina Totenberg, for instance, was certainly corrupting for Totenberg and arguably was mutually corrupting. But those sorts of friendships were the norm when Washington was treated as a closed society in which relationships between powerful and engaged people extended across party lines, but those relationships in general were accepted and part of the currency of life in the capital. That relationship was rightly cited as an example of "insider culture." I am no fan of insider culture (which is not limited to the capital; it's a feature of life for many well-connected and affluent people, including legal academics). But would we be worse off without any insider culture? (And do we have the worst of all possible worlds right now--two polarized inside cultures instead of a single, bipartisan inside culture?)  

4) What kinds of social and professional contacts are corrupt, and what are merely corrupting? Meeting with litigants is corrupt. Is meeting with Supreme Court Historical Society donors corrupt, or merely corrupting--in the way, common to many rich or powerful people ( including the ones you probably admire), that living in a world in which one's contacts with most "regular" people are limited but it is common to hob-nob with the powerful, the wealthy, those who donate to one's favorite causes, those who provide hunting lodges and other nice places to get away from it all, and so on, is corrupting? (AOC supporting the Met, for instance, or other major arts institutions in New York City, is not corrupt. AOC being invited to attend and be photographed at a Met gala is corrupting.) 

5) Should we reexamine other aspects of insider culture or of celebrity-justice culture, aspects that come closer to our own doorstep? Some of them are obvious. The justices arguably shouldn't speak at events like the annual conferences of the Federalist Society or the American Constitution Society. Why anyone wants them to is beyond me. Other than the lure of celebrity, why invite someone to say something that will surely be uninteresting? What person with a rich and full life could possibly enjoy putting on uncomfortable garb to eat poorly prepared chicken or salmon, while listening to someone delivering a semi-informed or trite speech about why cancel culture is bad or stare decisis is good? The lure of celebrity is corrupting and degrading for the audience; but the lure of being celebrated is corrupting and degrading for the justices, and regardless of whether we treat such speeches as raising any conflicts of interest or poor perceptions, they ought not do it.

But how about the AALS? Again, I see no particular reason why we should invite justices to speak at the annual AALS convention, as that organization has done several times, and not much reason why we should invite most lower court judges to do so either. There's no point inviting them if they're going to say something uninteresting, and they're not really supposed to say something interesting. So why bother? What are the motives for issuing such invitations--and for accepting them? And why should individual law schools invite justices to speak? Why do they invite them to speak? To paraphrase Posner, schools of veterinary medicine study dogs; they don't invite them to give full-attendance talks to the student body, along with a more exclusive kibble luncheon with the dog for faculty and specially invited guests. I should think that other than mere habit, one reason we do so is marketing, both to students and to the outside world. Another, which is part of the marketing, is selling the appearance of access or impressiveness for that institution. A third is an attempt to curry favor with or influence the justices for a limited purpose--namely, encouraging the justices to hire clerks from that school. A fourth, somewhat incidental but real, is attempting to influence the justices in precisely the way that is mentioned in the Times story: ensuring that the justice "hear[s] from people who would hail them as heroes" for doing one thing or another. I attended a luncheon with then-Justice Kennedy at one law school I taught at, where most of the faculty used their time with him to fawn over and thank him for his opinion in Lawrence. I'm sure it was sincere, but I'm not sure it was seemly and they surely hoped to encourage him to issue more opinions along the same line. A fifth is impressing current or potential donors to that school, who may well end up being invited to share the kibble at that exclusive luncheon with the justice. 

Isn't all of this not only corrupting but, still worse, uninteresting? On the other side, if the justices are there for public relations purposes, what business does a law school have allowing itself to be used for such efforts--indeed, subsidizing them, including by sending very nice planes to pick up the PR person and putting them up in a luxe hotel? How much of this sort of thing do we take for granted in our own corner of the world and how corrupting is it? 

6) The story of law and social movements is certainly not limited to the story of influencing judges; it is mostly not about that. But some efforts in this space are aimed at doing precisely that. What constitutes a legitimate deliberate effort to influence a judge's vote and what constitutes an illegitimate one? 

7) How much of Mr. Schenck's story is, in effect, yet another effort to gain influence or power or money? The story notes that Schenck "is trying to re-establish himself, now as a progressive evangelical leader." In plain English, that means that he would like to gain influence or power or money in a slightly different circle than the previous one. Even if the "regret" that he now expresses and describes as a motive for speaking out is sincere, is it not also a motivated sincerity, or at least one that he is putting to work for himself? (There are so many ways to monetize sentiment in America that I wonder if we shouldn't have a line on the tax form for "passion" or "conviction" or "sincerity.") If we use this story as an entry point for thinking about casual, legal corruption in the legal and political world, is it relevant that today's story will itself be used by various groups to raise still more money, and that even ostensibly legitimate responses to it--recusal motions, calls for investigation, and the like--will in turn, as the people engaging in them will know full well, open productive new fundraising opportunities?

Incidentally, while it seems quite true that Schenck attempted to learn the outcome of cases, and while the fact that he might be as highly motivated in his disclosures now as he was in his efforts then doesn't mean he's speaking inaccurately, his current possible motives should affect how we read the evidence here. One can still read the story and conclude both that Schenck acted reprehensibly and that Justice Alito was a fool for allowing such people to be or remain friendly with him. But anyone who has made even part of the journey from innocence to experience is surely aware that in this sort of world, people routinely exaggerate their own importance and wildly exaggerate what inside knowledge they actually have. It is possible that Schenck, and Schenck's moles, learned nothing. (Even when they are not exaggerating, of course they can still puff and profit from their access. One can assume the truth that Nina Totenberg had a special friendship with Ruth Bader Ginsburg, while noting that taking the extra step of converting that friendship into a book contract--and a book in which Totenberg, like Schenck, profits from sharing her after-the-fact Hamlet-like ambivalence about its propriety--and thus turning that friendship into a profit-making enterprise, as so many of Ginsburg's friends and relations did with her complicity, involves its own forms of exaggeration.) 

8) Is there any good news to be taken from the story? I think the answer is yes. The story includes three, or perhaps two-and-a-half, brush-offs, from Roberts, Kennedy, and Scalia. (Scalia indicated a willingness to meet with an anti-abortion activist, while also stating that he could not and would not assist that activist's group.) I suppose the bad news is twofold. First, people who are willing to abuse the current system, to abuse what is legal but potentially corrupt, are playing the odds, and the rebuffs are easy to accept as part of the game, as long as someone occasionally succumbs or willfully cooperates. (And even if no justice does succumb, the people engaging in this conduct can still fundraise on the basis of their supposed closeness to the justices. Those Supreme Court Historical Society donations are sound financial investments.)

Second, the justices don't talk much about any of it. I have no interest in listening to a talk from judge or Justice X, at the AALS or my own law school or anywhere else, about the rule of law or the long arc of justice or the importance of stare decisis or of textualism. I can read that kind of thing in my monthly bar journal. But any of these topics would be worth the ticket: "How I Negotiated My Book Deal." "Summer in Salzburg." "Powerful People I Have Known." "How Rich People Try to Get Close to Me and How Often I Let Them." "Why I Shut Off Most of My Old Relationships and How it Might Distort My Worldview." "The Paranoid Style in Judicial Life." "Why You Really Invited Me to Give This Talk." "What People Want From Me and What They Actually Get." "'Yes, Sir, Mr. Justice,' or Why I Don't Retire." "Living With Temptation." Those might actually be useful and informative talks.       

The Performative Judicial Opinion Style

Today Mark Walker, Chief Judge of the United States District Court for the Northern District of Florida, granted a preliminary injunction blocking enforcement of Florida's awful "Stop WOKE Act." The opinion is over 100 pages long, putting one in mind of the old saying, attributed to a number of people, "I would have written you a shorter letter, but I didn't have the time." Given its length I haven't had a chance to read it properly. Howard is welcome to it. I wanted to use it to say something about style in judicial opinions.

From the very outset of the opinion, I was put in mind of Richard Posner's excellent 1995 piece on judicial opinion writing style. In that piece Posner contrasts the "pure" opinion style, which he characterizes as having a "lofty, formal, imperious, impersonal, 'refined,' ostentatiously 'correct' (including 'politically correct'), even hieratic tone," with the "impure" style, which "tend[s] to be more direct, forthright, 'man to man,' colloquial, informal, frank, even racy, even demotic." Posner, of course, prefers the impure style and, at his best, was a master at it. He goes on to argue that the pure and impure styles map, roughly, on to different "jurisprudential stances:" respectively, the formalist and the pragmatic. But he acknowledges that the fit is imperfect and that the writing styles lie on a spectrum, rarely appearing in anything like a clear undiluted form. And he acknowledges that the impure style has its risks. It can easily curdle into something different and worse: 

In repeatedly complaining about the impersonality of the pure style, I run the risk of seeming to endorse the very emotionality, sentimentality, and egoism that was characteristic of much Romantic and Victorian poetry and that T.S. Eliot and other modernists denounced. The arch-sentimentalist, and some might even say the arch-egoist, of the American judiciary is the recently retired Justice Blackmun. Blackmun did not try to disguise or discipline the strong feelings that many of the Court's cases aroused in him; he seemed (not only in his opinions but also in his public comments about the Court) to have insisted on “letting it all hang out.” Although his opinions in these cases depart from the professional norms that I am associating with the “pure” style and are certainly not lacking in “voice,” the departure is not in the direction of the school of Donne or Eliot. The “voice” is rather that of Joyce Kilmer or Norman Rockwell. Whatever the merit of Blackmun's positions on such matters as abortion, capital punishment, sexual equality, the exemption of baseball from the antitrust laws, or the duty of states to protect people from private violence, the opinions in which he expressed his heartfelt views on these subjects are embarrassing performances precisely because they seem the unmediated expression of self. They are maudlin (DeShaney), melodramatic (Webster), unreasoned (Roe, Callins), narcissistic (Casey), sophomoric (Roe's history of abortion from ancient Persia on and the ode to baseball in Flood v Kuhn), and gratuitously indecorous (Michael M.).

I would say three things about Posner's taxonomy. The first is that time has perhaps been unkind to his effort to link the pure style to formalism and the impure to pragmatism. Or perhaps he was right at the time but things have changed. In any event, impurity is the order of the day on the Supreme Court and elsewhere. I think that change is mostly to the good, although I find that many of those informal opinions in some places easily fall from the conversational and memorable into the chatty and cute. It is good that judges are writing more directly, but not so good that the federal courts have used the glibly humorous phrase "But wait, there's more" 31 times in their opinions, all of which started appearing in 1996 (a year after Posner's article was published) and mostly in the past dozen years or so. (In an illustration of the point that pure and impure get mixed, note that on nine of those occasions, the judge chose the worst of all possible versions of the phrase: "But wait, there is more.") But the impure style is now as likely to appear in formalist opinions as in non-formalist opinions. I haven't searched the literature closely but I suspect some updating work is needed on this point and that the results would be interesting.  

The second is that it seems to me that the narcissistic opinion--the emotional, sentimental, often egoistic, undisciplined opinion--occupies a larger space than Posner assigned to it and fits awkwardly into the pure/impure division. Indeed, like the saying that Washington is a city with Southern efficiency and Northern charm, this sort of opinion is often notable for selecting unerringly from the worst of the pure style and the worst of the impure style and combining them. Although Posner's language strikes for the jugular here, I'm also not sure it's quite right. Or, if he is, it might be that more can be said about styles of opinion that are closely related to and adjacent to the narcissistic style.

We might imagine a new category: the performative judicial opinion. I mean performative not in J.L. Austin's sense of "performative utterances," but in the colloquial sense in which it is often used these days: speech that carries the air of having been undertaken more to "increase one's social capital" than "because of one's devotion to a cause." It is, of course, the kind of speech that is so very common on social media and has gone on to infect any number of other speech institutions, such as newspapers, as well. (What is an ad slogan like "Democracy dies in darkness"--which is quoted in Judge Walker's opinion--if not performative speech, especially once people treat it as anything other than what it was in the first place: a calculated marketing effort?)  

The performative judicial opinion maps considerably onto the narcissistic opinion--and there is certainly an enormous amount of narcissism in "performative speech"--but is not an exact match for it. The voice is not that of Kilmer or Rockwell, but that of the kind of poorly edited, overheated speech a self-smitten politician or activist of whatever political stripe might deliver to an overly receptive, easily impressed audience. It's not the speech of Twitter, but the kind of speech one might anticipate being well-received by people on Twitter. It reads as if the author hopes it will be puffed and passed along by a credulous mediocre journalist of the corresponding political persuasion: a mash note on Slate, or on The Federalist. But like the narcissistic opinion, it is regularly characterized by the maudlin, the melodramatic, the sophomoric, the gratuitous, the indecorous. 

It also seems very popular to me. Perhaps that's because it's the kind of opinion that's most likely to appeal to the kinds of credulous, partisan, or unserious writers who are then eager to broadcast it to all and sundry, while more workaday opinions go unnoticed and certainly unquoted. But that suggests a one-sided relationship, and I think the symbiosis is coming from both sides and that no shortage of judges are happy these days to engage in precisely this kind of intentional but fundamentally undisciplined opinion writing. Perhaps it has something to do with broader changing standards of speech and behavior--and perhaps those standards are not just changed, but fallen or degraded. One would like to attribute it to a particular appointing president. Surely, if anyone would be inclined to set loose on the world writers of narcissistic and undisciplined judicial opinions, it would have been President Trump. But I don't think that's the case. Polarization and culture wars, as well as the appearance of culture-war issues on the judicial docket (or the turning of issues into culture-war matters) have certainly contributed to its popularity for writers at both poles. What else could one call Judge Oldham's concurring opinion in the en banc Fifth Circuit in this Term's Cochran v. SEC case if not undisciplined, gratuitous, sophomoric--performative? On the other side of the culture wars, what else could one call the Georgia trial court opinion that Howard writes about below? Both call desperately for attention, not just substantively but stylistically--and get it.  

People (including me, no doubt) tend to applaud dreck--speeches, slogans, cheap appeals to sentiment, and so on--when it appeals strongly to their priors, or at least let it pass without focusing on and critiquing the style used. What could be more eloquent and beautiful to one's eyes than someone agreeing with one's deepest feelings or views? And they are happy to excoriate it when it comes from the opposite side, because it is easier to spot in those circumstances. But I would like to see more examination of the performative judicial opinion as a style. There is much to be said about it. That's true not just from the stylistic perspective but for whatever insights an examination of the performative and/or narcissistic opinion might yield into the state of judging, the relationship between judging and polarization, the degree to which courts have become accustomed to writing for politically and culturally siloed audiences, and the relationship between lower courts, which mostly are free to play their own games, and the Supreme Court, which plays another. 

The third and final thing I have to say will not be surprising: Whatever I may feel about the outcome, I find it hard to describe Judge Walker's opinion, with all its mix of high and low, pure and impure, as anything but performative, and perhaps narcissistic, as a matter of opinion-writing style.  

Why Not Just Do a Better Job of Outsourcing?

Sasha Volokh, expanding on a quote he gave in a short piece in the Washington Post, offers some reasonable thoughts on the question of educational diversity and Supreme Court clerkships. He poses the question as follows: "Given all that, what should a hiring judge do, who is busy, has a huge pile of resumes to go through, and has very limited information? Is there enough of a correlation between law school ranking and likely clerkship quality that judges should use the law school ranking as a strong factor in their decisionmaking?" He concludes that "[I]t's a not unreasonable preference for U.S. Supreme Court Justices who are busy and have to make decisions based on very incomplete information; I might well do the same if I were a Supreme Court Justice."

As I said, this is reasonable. I am more inclined to mild agreement than to disagreement. But it doesn't seem sufficient--and the more I think about it, the more insufficient it seems. I would have thought that to the extent that we value educational diversity in Supreme Court clerkships--and I do, although I'm not sure how terribly important it is who gets to serve as a Supreme Court clerk--the answer to the question, how do I get there despite the competing demands on my time, would be the same answer we give in other situations where a decision-maker has limited time: to delegate or outsource, or delegate or outsource more, with that goal in mind. 

I have in mind a few different kinds of outsourcing. As Sasha notes, the preference for an extraordinarily narrow and rather parochial band of law students does not hold as strongly on the federal circuit and district courts or on the state courts. And he also notes that the Justices are presumably looking for "the standard characteristics that judges value in clerks: better able to read and understand a lot of complex law stuff, better able to write clearly and persuasively, etc." Fair enough. Doing well at a prestigious and competitive law school is an okay proxy for standard characteristic that judges value in clerks.

As it turns out, though, doing well as a clerk--in other words, actually displaying characteristics as an actual clerk that an actual judge values highly--is an even better way of identifying the presence of characteristics that judges value in clerks. The justices already outsource a good deal of their clerk-selection work, as well as training, to other judges. It is well within their power to outsource even more. And if they value educational diversity but value their time more, they are free to tell judges who would like to see their clerks going on to spend a year working at the Court that they, the justices, want those clerks to come from a wider range of schools, and without any loss in quality. It's true that by way of further economizing on time, some justices rely on particular "feeder" judges. The justices are similarly free to tell those feeder judges that if they want to continue "feeding," they had better work harder to find law clerks from a wider range of schools who are excellent, or train them into excellence. Presumably some of those feeder judges will be willing to do so, for the sake of advancing their clerks, maintaining their prestige and relationships, or for other reasons--including that they agree with the sentiment and, given the push, would be happy to work harder to see it happen. If not, as Bud White would point out, there will be ten more judges willing to take their place as feeders.  

Lower court judges are not the only source to outsource to. To the extent that the current justices use clerkship selection committees, they are free to demand of those committees that they seek and find the best possible prospective clerks who have graduated from somewhere outside the usual-suspect schools, at whatever additional cost in time and effort, and provide further grooming if and as necessary. Most justices used to wholly delegate their clerkship selection, and managed to find perfectly serviceable clerks. They relied, to be sure, on Harvard or Yale professors selecting Harvard or Yale students. But the justices now have more clerks who end up teaching in a wider range of schools--and the students they recommend will, unlike many of that earlier generation of clerks, have already gone through substantial training in judicial chambers elsewhere. In any event, it doesn't matter where the people to whom they delegate clerkship selection are teaching, if they are teaching at all. It just matters that they be instructed to increase their time and effort in order to find suitable prospects somewhere other than the usual 10 or so schools. If that means making a lot of calls to colleagues at other schools or traipsing around the country, so be it. That's not the justice's problem.   

Doing well as a law clerk is, as I said, a pretty darn good way to spot someone who has the characteristics of would do well as a law clerk on the Supreme Court, and a more accurate way than just looking for someone who did well at a usual-suspect law school. That is one reason the justices don't just pick clerks fresh out of law school anymore. Really, in looking for their clerks from among the ranks of people who have already clerked, they are delegating two things: search costs, and training costs. We might also say of this trend that they are outsourcing to time: rather than reducing their search costs by looking to a particular school, or in addition to doing that, they are reducing those search costs, and reducing the error costs that result from "incomplete information," by looking to candidates who have already had to hone and demonstrate their legal skills by doing actual legal work. But there are still other ways of spotting prospects, other qualifications or experiences, that are more accurate than just looking at law school performance.

One, unsurprisingly, is actually practicing law. Nor is it surprising that justices have realized this and have increasingly hired law clerks who have practiced law for a few years, or even practiced and then taught law for a few years. (It's not surprising for a second reason, which is that the phenomenon also reflects the increasing bureaucratization, professionalization, and depersonalization of the judicial system. Judges are welcome to talk about the chambers "family" and such stuff. But the judicial system is indeed a very large system, chambers are not families or hereditary fiefdoms but miniature firms, and judges should--and their actions en masse suggest that they increasingly do--act accordingly. That means hiring lawyers to serve as special-assistant junior lawyers to the justice.) It is easier and more reliable to say of someone who has performed exceedingly well at an appellate firm or in the Solicitor General's office that she has the "characteristics" of an excellent appellate law clerk than to say it of someone who did super-well in her first year of law school. That's true even if the excellent appellate lawyer graduated from Podunk U and the first-year student excelled at one of the usual-suspect schools. So another option for justices who value educational diversity is to use their ample knowledge of and relationships with law firms and government legal offices that specialize in the kinds of skills they're looking for, urging those employers to talent-spot from a wider range of schools and pass along their best young prospects.

Sasha's reasonable opening premise is that justices rely on a small number of schools because they have limited time and incomplete information. It's clear that judges are already using a variety of means, such as insisting on prior clerkships and looking at prospects with a longer amount of actual legal experience, to reduce the "incomplete information" problem. And we might also view all of this as a form of reducing search costs--specifically, reducing them by making other people, such as feeder judges and law firms, put in the time and work of finding and training the folks who eventually end up spending a year or two on First Street. My suggestions involve giving new search criteria to lower court judges, clerkship selection committees, and legal employers, and insisting that they maintain the same quality level but look more widely. I am thus also suggesting that all these delegates be given a more demanding and time-consuming job than the one they currently do. But I'm not sure why this is a problem. Or, to be more accurate, I'm not sure why it's my problem, or the justices' problem. They are apparently already quite content to ask others to work hard on their behalf. Asking others to work even harder on their behalf does not seem like much of a stretch, especially in light of the fact that many of those people might agree with the goal of enhancing educational diversity in the Supreme Court clerkship population. Indeed, as is often the case with bureaucratic institutions--and this is essentially what we're talking about here--those subordinates might be eager to increase clerkship educational diversity, and welcome the instruction from the delegating justice to do so, even if that entails additional work. Sometimes the reason something doesn't happen in an institution is that everyone wants it to happen and is willing to work harder to see it happen, but everyone is waiting for a first mover. 

But let's say that's not the case. Let's say the justice's delegates would rather look only at usual-suspect schools, or would rather not incur additional search costs. Let's say the justice wants educational diversity but, to do so, is going to have to make others suffer more, lose more time given over to the task of ensuring it, and perhaps even lose some of her own already-limited time and have a more unpleasant life as a justice. My answer is roughly the same: So what? The burden on those delegates sure ain't my problem, and it doesn't seem like much to suffer for the pleasure and privilege of serving as a delegate. In some cases, it's a burden the delegate ought to be taking on anyway. Elite law firms or government offices, for instance, may prefer to look at only a few schools when hiring, but I think that's a lousy preference and they should be pushed to alter it. Just as institutional clients are increasingly demanding that law firms hire and staff their cases for diversity, and in doing so may alter those firms' hiring practices despite settled and perhaps lazy habits, so the justices' insistence on educational diversity in the serious-prospect clerk pool can do the same--for firms, for elite government legal offices, and for lower court judges, especially those "feeder" judges who enjoy holding and passing along the keys to the kingdom. As for the justices themselves, if the reason judges run to Harvard and Yale for their clerks is to save time in a crowded schedule, one answer to that dilemma is: spend more time looking more broadly, suffer a more inconvenient life accordingly, and perhaps burn out more quickly. Being a Supreme Court justice is not supposed to be a pleasant job and certainly ought not be a lifetime job. And there's always another bus pulling in to the station.

I should be clear that none of this is an assault on Sasha's position. His views are, as I said in my very first sentence, reasonable. He may, for all I know, agree with most or all of what I've suggested here. And conversely, despite everything I've suggested here, I understand and, in a rather abstract way, agree with the general proposition that it is reasonable--or, as he rightly puts it, "not unreasonable"--for a justice to economize on time and compensate for incomplete information by relying on the usual-suspect schools in selecting law clerks. I just don't think that's enough, and as I think about it, it seems to me nowhere near enough. For one thing, as I've suggested and as we all know, judges already don't consider that sufficient and already do more than look at where their clerk prospects went to school. And the kinds of things they do look at or insist on, such as proven skill as a law clerk and, increasingly, proven skill as a law clerk and practicing lawyer, suggests that they already recognize the rather substantial space between "not unreasonable" and "a good and sufficient idea." Indeed, it's quite possible that those criteria now do most of the heavy lifting in clerkship selection, with the prospective's law clerk just serving as a very rough and imprecise first cull of the applicant pool. The less work the school does in actually sorting the pool for quality and suitability, the less reason there is to think of it as being anything more than "not unreasonable" at best, and the more reason there is--if we value educational diversity in law clerks--to use other measures of culling the pool, even if those measures involve giving different instructions to one's delegates and insisting that they do more work. Those delegates have plenty of incentives to do the extra work, may themselves believe that the goal of educational diversity among the Court's law clerks is worth incurring that extra burden, and certainly have plenty of competitors who would be willing to take their place even if substantial labor were involved. 

Of course two or three things are possible in explaining why this doesn't happen more. One is that judges, like everyone else, may be acting "not unreasonably" but also lazily, relying on custom and habit whether it comports with their normative preferences or not and whether or not the custom and habit make all that much sense.

Another is that the justices may not especially want or care about educational diversity among their law clerks. Some justices clearly and explicitly do, but most may not. That is perhaps understandable, given that the justices themselves are selected from among an extremely narrow band of law schools, for reasons that honestly don't make much sense politically or even practically. One reason for that, in turn, might be that although elected officials with law degrees are themselves likely to come from a broader range of schools, their top staff, who are charged with finding prospective justices, may come disproportionately from the usual-suspect schools and, whatever their ostensible political views, make usual-suspect elitist assumptions about credentials and clubbability, and about talent and where to find it. As is usually the case with the reproduction of hierarchy, the old TV-commercial phrase "You're soaking in it now" seems appropriate. Perhaps they care about it enough to pay lip service to it, including by insisting that the only reason they turn to the old standbys so often is to save on time and ensure consistent quality. But there are lots of things to do about that, many of which they already do, and they could indeed always spend more time and suffer a little more for it--or make their delegates do so, at little or no cost to their own time. So it may be the case that they care about educational diversity a little--but not much, and not enough to do much about it. Some candor about this, from the justices or their delegates, might be refreshing. The phrase "my conduct with respect to educational diversity among my law clerks is not unreasonable" is perfectly consistent, given the scope of a phrase like "not unreasonable," with "I really can't be bothered to do more." It's human, unattractive, and honest. 

A third possibility is that whatever lip service the justices, or others, pay to the idea that terrific law clerks can come from many law schools, or perhaps any law school in the country, they do not actually believe it. They may sincerely believe that those two, or five, or ten law schools are not only the best law schools in the country, but also the sole repository of the best law students in the country. They may sincerely believe it, but not openly believe it. It is relatively rare to find someone like Justice Scalia, who said when asked about this, "By and large,...I’m going to be picking from the law schools that basically are the hardest to get into. They admit the best and the brightest, and they may not teach very well, but you can’t make a sow’s ear out of a silk purse. If they come in the best and the brightest, they’re probably going to leave the best and the brightest." (Note his enjoyable distinction between having the best students and actually being the best schools for training lawyers.) But it may be that many people do in fact agree with Scalia, including most of the current justices--and many others off the Court, including the many judges, professors, and others who participate in or influence the system of clerk and judicial selection. 

Most of us, at least outside the top ten schools, have said countless times that our best students are at least the equal of the best law students anywhere in the country. One reason we say this is because we think it's true, having seen how terrific these students are; I have taught at six different law schools, with widely varying student bodies and US News or other rankings, and I think it's true, although in my experience, it's also true that what we might think of as the law-related social capital of those best students does indeed vary between schools. Another reason we say it is that it's encouraging to the students, diplomatic to our colleagues and others, and just plain prudent to say so. But it's far from clear to me that our revealed preferences are consistent with these kinds of statements and beliefs. And the justices' actions, for the most part, are not consistent with them either. Sasha, with an assist from Scalia, suggests a reason why one might think otherwise: the top schools are able to admit the students with the best metrics, everyone cares about those metrics and thinks they have real descriptive and predictive value (despite whatever they may say to the contrary), and then those best students are thrown into competition with each other and the very best emerge from that competition. It is, in particular, the competition between and consequent sorting among those high-metric students that does the work, with maybe a little law-teaching making a small contribution and a lot of law-exam grading making a very large one. (I am sure the faculty at top-ten schools will be glad and proud to know that, on this view, the primary and overwhelming contribution they make to what one of those schools calls "mak[ing] an impact in the world at large" and Justice O'Connor called "the path to leadership" is...grading exams.) The top student at second-tier school X may be absolutely extraordinary. But she didn't have those metrics, and so is not that great; or she had the metrics but not the competition, and so...is not that great.

Scalia aside, not many people say this. Although he initially frames the question in terms of economizing on time and dealing with incomplete information, and despite saying that he has had "Supreme-Court-quality students here at Emory," which is not exactly a bottom-of-the-barrel school in any event, Sasha does say something like this in his quote in the Post story, in which he says, "I really would trust an A-student at Harvard or Yale more than I would trust an A-student at Emory to be a Supreme Court clerk." Quotes may be taken out of context, but he says something similar in his post: "[I]f you look at a Harvard student and a lower-down-school student with identical credentials on paper, including identical grades or class ranks, identical-sounding recommendations, etc.[,] the Harvard A student is likely to be a better clerkship hire." These statements aren't just about search or information costs, it seems to me. (They are also not relevant to Supreme Court clerkships, it also seems to me, because at that stage you are already looking at more indicative information, such as how they performed for a lower court judge or in practice. At that point, they are being observed by an experienced judge or practicing lawyer and directly compared to other clerks and young lawyers from that and other years, including clerks and lawyers from the usual-suspect schools.) In any event, whatever they might say about the not-unreasonableness of sticking with a few schools because of time constraints, relatively few people would say that the top students at those schools are just better than the top students other than those at about ten out of some 200 law schools, full stop. 

Perhaps that's because not many people actually believe it. But I think the number of judges, law professors, and other gatekeepers who do believe it is a good deal larger than the number who say it. If we leave out the question of "law-related social capital," especially in light of the fact that at the Supreme Court clerkship stage the social capital gap has narrowed because we're talking about prospects who have started amassing that capital as clerks or in practice, I think it's not true. But the flip side of my earlier doubt about how important it is who gets to serve as a Supreme Court clerk is that I doubt it it would hurt the sound development of the law if the person clerking there got her A's at Emory, or Alabama, or a great many other schools, rather than Harvard, especially in light of whatever else they've done since graduating. I think it would be good for the Court and the justices, and a good in itself, if they did indeed do a better job of looking more widely and achieving greater educational diversity in their clerk hires. And given the interconnectedness of the legal system and its credentialist hierarchy, I think it would also redound to the benefit of better, smarter, and fairer hiring by lower court judges and by elite law firms and government legal departments. (And perhaps, eventually, deus volent, by law school faculty hiring committees.) Personally, I don't particularly care if it means the justices have to work harder, spend more time, and take more risks. But given the enormous amount they already outsource and the ease with which they can make educational diversity, with any additional costs imposed on their delegates and not themselves, I can't see why they don't do a better job on this without incurring much of cost or risk. Unless they either don't care, or have what at that point, given all the other and more reliable inputs, would be a far less rational preference for usual-suspect graduates. Which is not "not unreasonable." 

  

Coenen & Coenen, Principles of Constitutional Structure

I'm happy to recommend Principles of Constitutional Structure, a new book in West's hornbook series that, as the ad copy says, "offers an overview of federalism, the separation of powers, and related matters of constitutional structure." It's by Dan T. Coenen & Michael Coenen. Although it grew out of a book on the Commerce Clause by Dan Coenen, I was drawn to it by its broader scope and specifically its treatment of separation of powers. I can't say I've read it from cover to cover, but what I've read is clear, interesting, and well-sourced. Kudos to the Coenens. 

Jotwell: Two articles on Supreme Court communication

I'm not as good as Howard at regularly posting pieces from Jotwell, where I help with the con law section, but--here's a jot about two articles, one by David Fontana and Christopher Krewson and the other by Barry Sullivan and Ramon Feldbrin, on, as it were, wholesale and retail communication by the Supreme Court. Here's the intro:

The leak of the draft majority opinion in Dobbs v. Jackson Women’s Health Organization was an embarrassment to the Supreme Court as an institution. Its perpetrator(s) ought to be found out and censured or punished. But consider the leak in a different light: as an experiment in communications. When the final opinion came out on June 24, there was no desperate casting-about to understand it. Of course there were additional opinions, including the dissent, to absorb. But as to the meat of the opinion, there was no spectacle of Supreme Court reporters flipping pages on the steps of the Court, trying to boil down tens of thousands of words in an instant; there was no unnecessary lack of public understanding of the decision. The nation was not happier. But was it better served?

Viewed in that light, these two articles are well-timed. They are also nicely complementary. One, Barry Sullivan and Ramon Feldbrin’s The Supreme Court and the People: Communicating Decisions to the Public, is comparatively oriented and practical in nature, drawing on other constitutional courts’ experience to suggest some basic improvements in Supreme Court communications. The other, David Fontana and Christopher N. Krewson’s The Rhetorical Power of the Supreme Court, is arguably less practical but more ambitious. It argues that extrajudicial discussion by the Justices about the Supreme Court constitutes a “rhetorical power” that can spur more productive public discussion of constitutional law. These are certainly different approaches. But both articles agree that the Court faces a legitimacy problem that can in, some measure, be addressed by better communication. We may doubt the likelihood of the cure. But the prescription is well worth the attention, practically and for its own sake.

And something from the end:

Both authorial pairs have made a valuable contribution to discussions of the public-facing approach of the Supreme Court. Just as important, in true peanut-butter-and-chocolate fashion, the roughly contemporaneous appearance of both articles adds a complementary value to each one, and to both taken together. Each provides a different focus. In Fontana and Krewson’s case it is the contribution that might be made by individual justices speaking extrajudicially; in Sullivan and Feldbrin’s case it is what the Court might do institutionally to make its opinions more accessible. Fontana and Krewson bring interesting empirical tools to bear on the issues they raise; Sullivan and Feldbrin employ comparative work to expand our sense of what is possible. Fontana and Krewson offer a valuable theoretical discussion; Sullivan and Feldbrin work in the practical realm. Together, they taste great.

In several senses, both papers are also very timely. The Court’s public approval standing has plummeted. Regardless of its legal or moral legitimacy, its role in the culture wars in a polarized society, and its convenience as a target in partisan politics, will not enhance its perceived legitimacy. The justices are well aware of this and are attempting to respond, at least on an individual basis. It is thus an excellent time to think about what the Court could do to shore up its real and perceived legitimacy.

In another sense, one may ask how much anything could help much right now. I say this not because the current 6-3 majority is disfavored by most law professors and journalists and many others; millions of Americans are delighted by it. But it is entirely possible that on both sides of that divide, the overriding concern will not be with “legitimacy” as such, but with acceptable results. The tendency to put that conversation in the language of legitimacy will only “weaponize” that term, to use the cliché of the day. The Court may find that whatever communications strategy it adopts will be the equivalent of baling out a sinking frigate with a tablespoon. That said, the issue is certainly not going away. Between them, these two articles offer food for thought and viable, practical options.

Enjoy--and, of course, check out both articles!

Defending "Your Honor"

I'm grateful to Judge Benjamin Beaton for publishing his article Judging Titles, and to the VC for calling attention to it. Judge Beaton argues against the practice of calling judges "Your Honor," calling it (in the article abstract, at least) "un-American" and arguing that the simple appellation "Judge" is enough. I find plenty of points of agreement. Accidentally calling a judge "Sir" is no hanging offense. Law clerks (and everyone else) should avoid showering judges with obsequies--and that's true twice over for Supreme Court Justices. (I think he's wrong in suggesting that "this manner of speech" might come easier to clerks "who studied under dons and socialized at final and eating clubs." Those types--the U's, as Alan Ross and Nancy Mitford would say--know to the second when and where to shift into the assumed familiarity of informality with the powerful, and don't waste a moment in doing so. His speculation to the contrary is frightfully non-U.) Judges should avoid being changed by the bowing and scraping that surrounds them. All correct. But on the main point, I think he's dead wrong.

From my perspective, Judge Beaton himself helpfully distills into a sentence how and why he is wrong when he asks the rhetorical question, "Why are you addressing my honor (whatever abstract portion that might represent) and not the man in full?" He further elaborates on his error later in the piece by adding, "[T]hat distinction--between a professional duty and a personal rank--is what I'm trying to highlight."

On the first point, it seems to me to be precisely the point that under a sound system of government and of rule of law, we don't have to address "the man in full," and don't, or oughtn't, want to. We want to address the officer: not the whole woman (or man) in full, but the woman in her capacity as the holder of an office, and only in that capacity. We do not want to rely directly on her personal goodness, or the quantum of empathy she possesses (even if it's a useful quality in the performance of the office), or anything else other than her awareness that she occupies an office, that an office is ultimately not a collection of powers but a set of duties--"What are the highest places," asked an English judge long ago, "but obligations of the greatest dewties?"--and that she must fulfill them faithfully.

That is not to say the person is irrelevant, however. "Judges aren't the law," as Beaton writes, and despite his wisecrack I don't think they teach otherwise even at Yale. But the law is not an algorithm and the act of interpreting it is not mechanical. (I don't think anyone would argue otherwise even outside of Yale.) And transforming interpretation into decision and explanation, to use Beaton's terms, is not mechanical either. Certainly it would help if every decision were publicly explained. But judges make countless decisions and micro-decisions, including decisions not to act, that have no occasion for public explanation; and even if it were otherwise, the space between interpretation, decision, and explanation is vast and murky. Some need for character, judgment, and virtue is an ineluctable part of the performance of any office by any actual human being. 

And that, in my view, is where honor, properly understood, comes back in. Calling someone "Your Honor" has nothing to do with "personal rank," but a great deal to do with reminding the judge both that he is supposed to fulfill his "professional duty" honorably, and that his reputation in the eyes of his peers and in his own eyes--his honor, in short--is at stake whenever he performs his office. To treat "professional duty" as if it is quite separable from one's honor, as if it's some job that simply is undertaken during office hours, so to speak, is a mistake. As the sublime Laurence Laurentz would say, "Would that it were so simple."

Beaton objects to the phrase "Your Honor" because he thinks of it largely as a "term of nobility," and equates it mistakenly with "privileges" while contrasting it, equally mistakenly, with "duties." He's only half-wrong on the first point, both because it certainly connects to the history of nobility and because he also acknowledges in the footnotes that the term has long also been specifically connected to the idea of office-holding. And he's more seriously in error on the second point. Honor is precisely what connects the "man in full" to his "duties." Again, he is fair enough to acknowledge this point, albeit somewhat lightly, when he quotes Judge Edward Devitt: "The appellation 'Your Honor' is the trigger which commands our conscience to proper personal conduct and to the faithful performance of our duties." He cannot resist a jibe at Devitt, but Devitt is more right than wrong and more right than Beaton. It's not, pace Devitt, that the "appellation" serves as a "trigger." It's the concept and the virtue of honor that does it, and it's less a trigger than a bell, a reminder that the bell is tolling for the judge. Honor is, in fact, the virtue that connects the office to the man through the very judicial oath about which Beaton has more positive things to say. It's why the judicial oath, like other oaths, is said publicly. The public oath-taking is a forceful notice to the community that the judge has pledged herself and her honor to the sound performance of her office--a pledge of which "Your Honor" is an ongoing reminder. The point is perhaps best made by imagining the phrase spoken, not by rote or for flattery's sake, but in shocked or outraged tones, to remind a judge who has acted improperly that she has just dishonored herself, that the speaker knows it, and (because honor is as much an internal as an external quality) that the judge ought to know it too.

It's not the term that keeps me up nights. I'm more or less fine with whatever Beaton wants to call himself, although formality, like formalism (the latter, at least, in Beaton's view), shouldn't be dismissed too casually. But I think he's wrong about the thinking behind it. And although he falls into what might be thought a very contemporary habit of speaking about honor as aristocratic and archaic, there are plenty of people who could tell him that honor has much more to recommend it than that, that it is far from obsolete and, in altered form, has a full and necessary place in the modern liberal constitutional order, and that it's intimately connected to the "constitutional marriage of personality and impersonality" that is involved in the connection between office, oath, and honor. I don't care too much whether he reconsiders his practice, but he should reconsider his thinking. Just as long as you don't call him late for dinner. 

Christina Bohannan for Congress

I'm not generally nuts about using this site for such things, but in this case my confidence in the fundamental decency of the person wins out, and so I must note that Christina Bohannan, a law professor at the University of Iowa with whom I had the honor of serving as a fellow law clerk some few years ago, is running for Iowa's first seat in the House of Representatives. She currently serves in Iowa's House of Representatives. Her campaign site is here. Given her bio, which you can read there, I can perhaps ease my reluctance to post about politics by claiming some connection between this post and some of what I wrote here yesterday.    

Overdetermined at 22

Criticisms of Judge Ho's so-called boycott of Yale students for clerkships seem to me somehow unnecessary, because the thing itself is so obviously wrong. But I think it's worthwhile emphasizing two points made in this post by Jack Goldsmith, because it makes points seen less often elsewhere and in doing so makes larger points about the American law school--and law school commentary--universe. Goldsmith writes, in part:

Ho's boycott, if successful, will unfairly hurt conservative students at Yale even though it only applies prospectively....[T]he proposal would still punish conservative students who attend Yale but who were not aware before choosing a law school about the adverse implications for a clerkship years later. It would also punish those students who come to law school without well-formed views about judicial philosophy and over the course of law school develop a conservative judicial disposition.

Quite right, on both points. In reverse order: 1) The average law entering law student is in the neighborhood of 22-24. Many law students enter their first year straight from an undergraduate degree, or with a year or two of work in between. Meanwhile, despite the occasional effort to push back, the clerkship decision--both to apply and to select the clerk--is pushed back ever further. Of course many students have a "politics" and for some of them a good portion of their life has been formed around those politics. But it should hardly be assumed that most students of this age have a fully formed politics, or that those politics are firm, or indeed that they have much of a politics at all. To select for a "liberal" or "conservative" law student of that young age is to over-select those who are highly committed or highly shallow--or, and perhaps even most likely, both. Correspondingly, it under-selects for those who have other interests besides politics, or have not formed a deep set of politics and are wise enough to know it. It also arguably under-selects for those prospective clerks whose primary interest in the law is in the law, as a deep and involving subject of its own, and not in the law as a vehicle for the achievement of their (quite possibly shallow, inexperienced, and underdeveloped) politics and a further credential on the road to party apparatchik status.

2) No doubt Yale and other elite schools, more than most law schools, are populated by students who already know what they're doing--who already have plenty of advice and lore and inside baseball under their belts. Among other things, they knew enough to apply to Yale, notwithstanding the cost of the education and the costs involved in moving. (See "hierarchy, reproduction of.") Many prospective or entering law students do not. They might be brilliant and full of promise. But they do not know the extent to which one's choice of law school matters and how--that it affects one's clerkship prospects, job opportunities at certain kinds of firms, prospects as a law professor, and so on. Perhaps they are first-generation college students, or first-generation law students. Perhaps they aren't but simply aren't fully acculturated into our somewhat bizarre educational ecosystem. Surely even some of those who end up at Yale either do not know when they select from among law schools that they might want to clerk, or why they might benefit from clerking, or even that this is an option. It's certainly true for many law students in many places. Nor, even if they have such an interest, do they yet know how to go about it and what things they might want on their resume in order to enable to make judges to make shallow judgments about that student's "politics." 

Judges are free to decide that they are not interested in students in either of these piles and would rather economize or eliminate risks by ordering someone ready-made, who at 22 already has an allegedly fully formed politics, an allegedly fully formed legal politics on top of that (since the two need not be precisely the same), and on top of this already has a full stock of appropriate connections and social and cultural capital. Based on a couple of decades of experience with my students at various sorts of law schools, I cannot help but think that judges who go this route are both missing an enormous number of great potential clerks, and risking over-selection of the kinds of clerks who are assuredly "bright" but might or might not match some of these others in depth of interest in the law, in wisdom, in commitment, and in the capacity for growth and to be surprised in and by life. 

What strikes me particularly is the "them that's got shall get" aspect of the conventional approach and of Ho's unfortunate contribution to it. (It is hardly limited to clerkships, of course. Even among those who already have a fair amount of cultural capital, things like fellowships which now act as a primary route to teaching, serve to funnel more inside information to a small number of people who already knew to apply for fellowships. They enhance the qualities of those fellows, up to a point--not all the accepted lore and advice in these communities, it seems to me, is good or accurate--but also further concentrate that information, and that then exacerbates the credentialism, risk-aversion, and conventionality of law school hiring.) The Internet, where Ho's announcement has drawn the most attention, democratizes all this to a degree. But my overall sense is still that Ho's announcement was a piece of inside baseball, retailed to the kinds of listeners and media sites where and for whom inside baseball is already common, to be consumed and enjoyed (with outrage being one form of enjoyment) by those who are already into inside baseball. I think Ho's speech, and any resulting actions, are more likely to achieve nothing at all than anything in particular. But if they did, the losers would be the folks Goldsmith is referring to: those who might contribute to any judge, including conservative ones, and to the work of the courts altogether, despite--or because of--the fact that at 22, they don't already have an off-the-rack politics and set of ambitions, or knowledge about how to signal it with the appropriate shorthand. 

"Blowing Up Law School?"

I have a few thoughts on Slate's article about constitutional law teachers and the current Supreme Court. The propositional question it asks is, "Law professors are faced with a quandary: How—and why—should you teach law to students while the Supreme Court openly changes the meaning of the Constitution to align with the GOP?" I should say that the article, and the people quoted, do a tremendously powerful job of voicing anger, disappointment, and grief over the Dobbs decision. My only hesitation in posting anything about the article was that 1) of course, I have no desire to exacerbate those feelings, and 2) as I suggest below, the article is and isn't about Dobbs in various ways. It is not framed as being about Dobbs, but Dobbs is virtually the only thing it discusses. That makes it hard to judge, when reading the article, how independent of Dobbs the question asked by the author and the responses given in it actually are. Certainly it is not as if the Court has not issued other opinions that are subject to the same criticisms. In any event, most of my thoughts about the article are not directly about Dobbs as such. So here are a few observations:

1) Constitutional law is not law school. It's certainly far from covering the whole of the legal curriculum. It interests me, but I would not call it the most difficult or interesting subject in the law. It's not even close to being the most important course students take in their first year of law school--if they take it in their first year at all. There are certainly reasonable arguments that constitutional law should be a mandatory course at some point in law school, but they are only reasonable, not airtight. An article about the difficulty of teaching constitutional law is a perfectly reasonable subject. But this is a competitive marketplace, so naturally the headline talks about "Blowing Up Law School." The accepted if imperfect rule is never to blame the writer for the headline, and for the most part the story is more narrowly focused, but as the quote above suggests, it does tend to elide constitutional law with the whole of the law that is taught in law school and practiced by lawyers.

I do not suggest that other subjects in law are wholly "legitimate" or that those subjects are not also "politics," in the broad sense of the word. Legal Realism was not primarily a constitutional law-driven movement and its primary examples came from private law. The difference, among other things, is between a very slow and a greatly speeded-up film--between Warhol's Empire and an early Chaplin reel. Private law's politics operated over ages--and still do. American constitutional law, by contrast, has only had a couple of centuries to go through the contortions and political debates that occurred over much longer periods of time in, say, property or torts; moreover, stability and predictability are more important in those areas than in constitutional law. I welcome a certain amount of healthy cynicism and crises of faith with respect to any legal subject, torts and property included. But certainly there are other subjects that seem to occasion less of it, and most law students focus on those subjects most of the time. It is of course possible that one's reaction to a lawless Supreme Court might affect one's faith in any judicial interpretation of law at all, in any area and at any level. And, as I suggest again below, I have some sympathy with a sense of lack of faith in judicial interpretation of law tout court, although not specifically because of the current Supreme Court. But I am not at all sure that's the logic at work in this story. Perhaps one should just charitably read the headline out of the story and the word "constitutional" into any reference to law in its text. It would be interesting to read the views of someone for whom this Court has indeed eroded their faith in law altogether, and in teaching law. But I don't think that's this article.    

2) Constitutional law is not just constitutional rights. Only two contemporary Supreme Court decisions are named in the story: Trump v. Hawaii and Dobbs. Dobbs is a rights case and Trump v. Hawaii is read and reacted to strongly mostly for its effect on rights, although it is also a structure case. But that case only makes an appearance at the article's outset; the rest of the article only discusses Dobbs. What about federalism and separation of powers? I don't mean that as a defense of the Court's recent decisions in those areas--in this post I'm not defending the Court's work in any area--and certainly there's plenty of ferment on the Court in separation of powers law. Nor, to repeat what I acknowledged at the outset, do I ignore the point that Dobbs was profoundly consequential and involved profound reactions. But just as con law is not the whole of the curriculum in law school, rights are not the whole of the curriculum in constitutional law, and there are perfectly reasonable arguments that they're not the most important or consequential part of the curriculum in that subject. (They are also arguably not the most interesting part of the curriculum to teach. I write on rights, but often find teaching structure to be a more rewarding aspect of teaching the main constitutional law course.)

I understand why the article's focus is on rights, and I also understand that rights are more often more interesting than structure to journalists, including legal commentators in places like Slate. But the exclusive focus is still somewhat odd, and more could have been said about whether and how one affects the other.

One might add that just as con law is not the whole curriculum and rights are not all of con law, the Supreme Court is not the whole of constitutional law. I am curious how these professors now feel about lower courts, and about the executive and legislative branches as constitutional interpreters--and all of these sources should be a much larger part of the constitutional law curriculum than they currently are. If they now feel that the Supreme Court is utterly lawless, do they feel the same about constitutional law writ large? After all, constitutional law as an interpretive exercise is undertaken by many others besides the justices, and they all ultimately occupy those positions of interpretive power through politics. Is this just about the current Court? (Some of the people quoted do suggest that they will now be widening their focus beyond the Court when teaching. That's a good thing! But it's good regardless of their thoughts, or anyone else's, on the current Court. Despite valuable efforts in this area, most constitutional law casebooks still have an unhealthy fixation on that one court.)      

3) You were warned. As I suggested the other day, American law professors have an odd relationship with things like Legal Realism and Critical Legal Studies. The latter, of course, is a critique of "legal liberalism" and thus, unsurprisingly, it was routinely attacked or dismissed by legal liberals. In its time, Legal Realism had its own critics. These days, I would say, Legal Realism is supposed to be taken for granted and, although CLS gets nowhere near the attention or use it deserves, except from a very few people on the legal left and right, everyone is happy to talk in general terms about "critical theory," various forms of critical theory in law, and "critical thinking," in a way that suggests that they are adherents to these approaches.

But more legal scholarship suggests that they are not adherents than that they are. The average article criticizing, say, laws that restrict schools' ability to teach "critical theory" is much more likely to engage in standard doctrinal analysis, along with a sweeping and fairly uncritical invocation of liberal values, than to use, engage with, or take seriously any actual critical theory. Few legal liberals or progressives today would sign on to Paul Carrington's famous suggestion that it might be best for Crits to "depart the law school, perhaps to seek a place elsewhere in the academy." But that is because they recognize the value of co-optation, domestication, lip service, indifference, and dismissal, along with changes in fashion. (At least Carrington took CLS seriously.) For the most part, they remain in thrall to Carrington's belief in "keep[ing] the faith of the secular religion." For all that law professors like to see themselves as worldly, they are still no less attached to the "romantic innocence" which Carrington urged law professors to bring, unashamedly, to "the ultimate issue of their profession." Much of the language of the contemporary law professors quoted in the Slate piece is equally religious, right down to the telling appearance of the word Carrington uses--"faith." Of course a loss of faith can be brutally unsettling, even leaving aside the substantive right at issue. But one might point out that the faithful were urged all along to bethink that they might be sorely mistaken in their faith.

The Slate article seems to assume it would be a mistake for constitutional law professors to "embrace torpid nihilism." It does not, however, explain why it would be a mistake, other than perhaps for more or less religious reasons. Nor does it explain why the nihilism must be "torpid." (Nor, for that matter, does it consider the possibility that there might be any tertium quid between nihilism about law and "keeping the faith of the secular religion" of law.) 

Not wholly incidentally, it's striking that while Carrington's article warned of the danger of teaching the "nihilism" of CLS in law school, he confidently assured his readers that "[t]he professionalism and intellectual courage of lawyers does not require rejection of Legal Realism and its lesson that who decides also matters." Perhaps this was a matter of holding on to what had long since been domesticated and then taken for granted, while seeing the new "threat" as entirely different in its dangers. I'm not sure. I am sure that to believe and assert with equal confidence that Legal Realism and "who decides also matters" were just fine, while CLS was a four-alarm fire, requires a great deal of finesse and a certain amount of skillful management of cognitive dissonance. These are traits most of us make use of a good deal of the time. One might, with complete sympathy, make a similar observation about those who until recently were comfortable teaching that constitutional law always involves some politics and is shaped by it--comfortable, say, relating Frankfurter's quip about the death of Chief Justice Vinson being the first evidence he had seen of the existence of God--but are now shocked and disappointed to the point where teaching the subject is now a new challenge, seen as different in kind and not just degree. If one credits the folks quoted, it apparently took a fair amount of management of cognitive dissonance to teach confidently and comfortably before Dobbs. Perhaps that decision simply reveals to them just how much of that management was occurring all along. 

4) It's not new. I tend to think very little, if anything, is truly new. Hell, saying "it's not new" is old hat. With or without arguments about differences in degree and differences in kind, people can or ought to be able to understand that. But my colleagues sometimes have an odd relationship with history, as Americans seem to in general. For example: One might have expected the names "Bush" and "Gore" to come up somewhere in the article. Bush v. Gore was the first 21st century crisis of faith in constitutional law; it was experienced as such very viscerally by plenty of participants in the interpretive community at the time (at least they said they experienced it as such); and it occurred not very long ago. That case is never mentioned.

One might also read this ageless article about the Harvard Law Review Forewords, and remember that the Forewords in its first years were dominated by "heavy-handed criticism" of the Court for departing from "law" properly done. (See footnote 52 of that article for examples.) One might read the recent Frankfurter biography and the withering, often despairing views of Frankfurter and Hand concerning the Court of that era. I understand that Justice Douglas has been off the Court so long that entire careers teaching constitutional law have elapsed since his death, but I imagine that Douglas alone, in his life and on the page, was responsible for his share of crises of faith in constitutional law as a serious enterprise. We--casebooks, histories, con law teachers, and so on--tend to teach the Lochner era and the Court in the first term of FDR as part of an already-completed historical narrative in which, roughly speaking, good triumphed over evil. When I took constitutional law, three years before Lopez, in 1992, a good deal of history simply ended in 1937. Momentous things happened after that, but they were all just part of the project of living on the other side of the the end of history. But it surely did not seem that way to participants at the time. People nevertheless continued to teach the occasional constitutional law course back then. (To be sure, constitutional law had not yet begun absorbing much of the available oxygen in American law schools.) One cannot say, in a "people were tough in those days, compared to us softies" way, that those teachers were just acting professionally and didn't talk about their feelings so much--and not just because it is entirely understandable to have strong feelings about Dobbs. They had feelings then, and talked about them, if in a more highfalutin way. My God, did Frankfurter emote! And it should be said that even if one treasures Roe v. Wade, or at least the right it announced, it is surely fair to say that it might have given rise to the occasional twinge of reflection on the role of reasoned elaboration versus taking on the role of a "policy council," to quote one of the people quoted in the Slate story. 

In short, the 20th century alone supplies more than ample evidence that there were contests that all along created a sense of crisis over the feeling that law, or at least the law of the Supreme Court, was the ever-changing product of "politics and power" rather than "law and reason." And I stop with the 20th century only because my own knowledge of the 19th century is not strong enough to rhyme off evidence from that period, the Civil War notwithstanding.

One can argue differences of degree and kind, as I said; and one can argue differences in the surrounding political structure. But I'm not just suggesting that earlier episodes could have given rise to crises of faith about law and the Court. They did give rise to crises of faith. And there were enough of them--crises that we already teach, or are supposed to, or could--that it's surprising that it took Dobbs, or this Court in general, to finally be overwhelmed by the question how or why one teaches constitutional law. One could argue that all this is different, and one could get along fine until now, because those earlier crises ended in the right way. But that was always a bad canned narrative, people have understood it to be such for at least a quarter-century if not all along, and all of this evidence has been and is already available to us. None of this is meant to minimize changes in the nature of politics and political structure that have enhanced one's sense of crisis (also not entirely new, of course) or, more directly, to minimize heartfelt reactions to Dobbs. It's the novelty that's in question.

5) There's not much in here about actually teaching constitutional law. The quoted question with which I began this post is actually a good one: How do you actually go about teaching constitutional law while it is in flux and, on the assumption of the article, the rulings are both explained by politics and under-explained as a matter of legal reasoning? How do you go about instructing them in these circumstances? A perfectly good question, although, again, any tour of conference notes past suggests it's not or shouldn't be a new one.

As it turns out, however, there is very little in the article about that question at all. The questions asked turn out to be more "Why bother teaching it?" or "How can I teach it without despairing?" or "How can I teach these cases when I despise the results?" These may also be important questions, but they're not the same question as the one I quoted or that I rephrase above. 

I would have liked to have seen an effort to answer this other question. It is difficult to teach the law if it changes too often. It is difficult to teach a mode of argument built around history and tradition, neither of which are our field, and hard to do a serious job of evaluating the method and its application in individual cases with any clarity in a 50-minute period. (Or, perhaps, at all.) Of course, one can say very interesting things about history and tradition as a method or methods. But it's much harder, without a pile of evidence, to say something useful about each case, each of which necessarily involves its own pile of materials on history and tradition. One can say what the test is, but so what? (I once tried teaching Heller first in the con law course, as one or two casebooks suggest. It was a mistake. "Which heap of historical argumentation do you credit more?" is not a productive teaching question. A good intro case, even today, should involve a more robust mix and better proportion of different modes of argument.) 

But it should be said that this part of the question is not new either. I cannot say whether it is endemic to law altogether, but it certainly is endemic to constitutional law. Genuine constitutional balancing, of the sort I learned as a Canadian law student, is also easy to describe but also pretty vapid, except insofar as one has skill at reading the mores and assumptions of Canadian judges, which is where all the work is done. We can tell students what Justice Kennedy said in some of his monumental opinions, but the law reviews are full of 80-page monuments, now moldering, to the proposition that it was easier to quote him than to understand exactly what he meant; and, of course, the nature of double helices is also well outside our expertise. In short, it's a general problem. But it's one that certainly also applies to the contemporary Supreme Court.

I grant that this question would not get the attention of general readers like the ones the article actually answered. But it would be of great interest to constitutional law teachers--"thousands" of them, according to the article, but even counting the entire Yale faculty that is surely an exaggeration--including the large number who may have grand and/or angry thoughts about the Court and the law but also have more quotidian concerns about teaching it. Judging by faculty website bios, about as many people quoted in the article do not teach the main constitutional law course or courses as do, although most of them teach relevant related courses. That's fine given the actual focus of the piece, but it's unfortunate that more workaday con law professors weren't sought out and quoted. They might have reframed the question. They might have the same concerns and they might not. They might have the same answers to the question--but they might also have some novel or unexpected ones.  

Legal Realism Sometimes

The New York Times editorial today marking the impending start of its term is unexceptional. That is unsurprising; this is the role of newspaper editorials. The only surprise is that I read any of it. But having done so, I was struck by one line: "It is precisely during times like these that the American people need the Supreme Court to play the role Chief Justice Roberts memorably articulated at his own confirmation hearing — that of an umpire calling balls and strikes, ensuring a fair playing field for all."

I am not sure anyone, possibly including the Chief, believes this line. Certainly mockery of Roberts's line is standard-issue for most observers and critics of the Court. Among those observers and critics we can count the editorial page of the New York Times. In the past, it has called the line "simplistic" and suggested that it had been subjected to a "brilliant demolition" in a speech by then-Justice Souter. Another time, it referred sympathetically to criticism of "the notion that constitutional interpretation is merely a robotic task of calling balls and strikes." They may be mistaken or misled by by professional duty and self-conception, but I would guess with some confidence that every member of the current Supreme Court believes in the concept of "calling balls and strikes" more sincerely than any member of the New York Times editorial board. 

I have no quarrel with today's editorial in general, although I also have no interest in it. (To be uninteresting and unquarrelsome is, again, is the role of newspaper editorials.) I do find interesting the degree to which many people and institutions slip in and out of legal realism, at one moment scoffing at the idea that law could be other than political and, in various senses, interested, partial, and policy-oriented, and at other times invoking various clichés, previously "brilliantly demolished," to praise, condemn, or urge a judge or court, or appeal to the public, according to the needs of the moment or the state of their sentiments. Critical thinking is a fair-weather habit.  

Absolutely, Law Schools--and Their Faculty--are Responsible for the Actions of Law Reviews

I take no position on most of the issues discussed in this post about an author's dispute with the Iowa Law Review, which was brought to my attention by Brian Leiter's blog--except that, as Brian writes, it is hard to imagine any scenario where the correct response is publishing an article over the author's own objections. (The older I get, the fewer strong positions I take on anything, except the subjects of anti-inflammatory medicines and arch supports--and I am striving to be more open-minded on those subjects as well. It seems to me that one of the many problems with social media is not that so many people share foolish or dangerous opinions, but that so many people share opinions, full stop. Having opinions has become our most popular and least productive leisure activity.)  

But I want to highlight one aspect of the post. In an update, the author, Prof. Ramsi Woodcock of Kentucky, writes, "When I wrote the forgoing last spring, I had assumed that the buck stopped with the student editors, and that apathy and avoidance explained why the Iowa Law administration had not stepped in to put this right." He then recounts communications with Iowa's dean suggesting greater, albeit post-hoc, decanal involvement.

A very small number of student-run law reviews--I can think of only one for sure, although there may be others--are officially and financially independent of their law schools. The rest are part and parcel of the institution and, generally, are folded into students' education officially through credits and other mechanisms. (Even the independent law review(s) are typically intertwined with their law schools in all sorts of ways.) And that leads to the bottom line: of course law schools are responsible for their law reviews, and for the action of those journals and their editors. Insofar as they purport to be scholarly journals, it could not be otherwise; likewise insofar as they purport to exist for pedagogical purposes. And this is not simply a matter of decanal responsibility, although I think it would be a good thing if every law dean read every issue of every journal published at his or her school and sent "Grizzer-grams" to the editors after every one. The same responsibility attaches equally--if not primarily, as a matter of faculty governance and scholarly duty--to every faculty member. We own our schools' journals, morally and professionally as well as otherwise. 

Of course "apathy and avoidance" are a part of why we generally act otherwise. So are the fact that we become accustomed to particular structures, such as the assignment of a single faculty advisor to each journal (which I suppose we could file under "avoidance"), as well as less tangible structures, such as the fact that not every school distributes every issue in print to every faculty member as soon as it is published, announces its publication choices to the faculty when they are made, and so on. There are also reasons that are less blameworthy decisions than mere apathy or avoidance. When I was a faculty advisor, I gave the new editors some general views and goals, but I also told them that this was their work to be proud of, that the decisions and learning were theirs, and that I was there more to support them and run interference when necessary than to intrude into their choices. Some of that approach had to do with a recognition that within the overall scholarly mission of the journal, different years' editors might have different emphases: sometimes editors were more interested in national prestige, for instance, while sometimes they were more interested in making sure that Alabama law and practice were given due attention. But although that was my backstop position--and a convenient one it was, to be sure--in important senses I, and not just I but my colleagues and my dean, were and are still ultimately responsible for our journals. Not doing anything about it most of the time, or talking in general terms about how it's really the student's journal, doesn't alter that ultimate responsibility in the least; those are just decisions about faculty and journal policy for which we, the faculty, are responsible.

I emphasize this in light of the many interesting choices and positions taken by various law reviews over the past several years. (Those choices are admittedly not necessarily vastly different from similar decisions made by faculty-run or professional-society-run journals in other disciplines, lest we lay all this at the feet of the American legal academy's strange reliance on students to do the work of overseeing the place where one third of our work as professors, scholarship, appears.) If a law review decides to issue a statement about one of the articles it publishes, for instance, and if there are questions about such a decision, all of this is ultimately the responsibility of that law school's faculty. If a law review decides to take a position on the BDS movement, one that extends not just to questions of funding but to specific positions taken by scholars in scholarly work, that is not a decision independent of the parent institution, but one in which the law school's faculty and administration must be involved and for which they ultimately must take responsibility--including the responsibility to reject it, if they conclude it is not consistent with the duties of a journal and the obligations of scholarship. Keeping in mind that some law reviews specifically restrict themselves to particular subjects or openly have particular orientations, while mainline law reviews explicitly exist to serve the general and viewpoint-neutral mission of scholarship, if a journal explicitly or implicitly adopts a particular politics or set of viewpoints that alter or depart from its mission and, among other things, affect its publication decisions, who it invites to symposia, or other matters, that is a matter for which the law school and its faculty are ultimately responsible. They might endorse it, in which case they should do so publicly. They might conclude it is indeed an improper departure, in which case they have every right and obligation to stop it. Either way, the responsibility ultimately lies with the law school, not just institutionally or with the faculty advisor but with respect to the individual faculty members. As long as we claim to be a scholarly discipline, the responsibility is indefeasible.

Perfectly reasonable arguments can be made about sub silentio decisions in the past that, one might insist, were not neutral but in fact championed and enforced particular positions and values; not all decisions that might be seen as departing from a law review's proper role are new and not all of them are about today's hot-button issues or share today's consensus. Those, too, were ultimately the responsibility of the faculty and not just the journal. And one might note that there are times when the departure is not something initiated by the law review but by a faculty member. When a faculty member leans on a journal to publish a piece that the journal thinks it ought not publish, for instance, that's a failure of responsibility on the part of the faculty member--and one in which the dean and other faculty must support the journal's resistance. But it does seem to me that a number of mainline journals, at least on a year-to-year basis, have, sometimes explicitly but more often implicitly, made a variety of decisions of late that are not necessarily consistent with their specifically, officially general scholarly mission and obligations. Those decisions might be praised or criticized, defended or questioned. But they ultimately must be supervised by the journals' faculty, including appropriate intervention when it is called for. This is not a violation but a meeting of our obligations as scholars and teachers, both of which surely sometimes includes the duty to say "no" and to make people unhappy. It's a part of the job I don't think we pay enough attention to. The buck always stops with us.       

Situation-Altering Invocations of "Legitimacy"

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

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

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

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

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

Missing: A Legal Scholarship of Gerontocracy Outside the Judicial Branch

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Shaviro, "'Moralist' Versus 'Scientist'"

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

From the paper's introduction:

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Supreme Court Seminar Inquiries

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

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

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

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

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

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

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

Leaks and a Look Backward

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

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

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

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

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

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

Tear Down This "Wall?"

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

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

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

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

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

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

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

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

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

 

Some Thoughts on Today's Ginni Thomas Story

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Scandal or an Extremist/Utterly Brilliant and Wonderful

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

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

* * * * 

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

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

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

The longer version follows.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Compromise Culture

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

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

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

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

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

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

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

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

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

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

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

Bromwich on the Current Awfulness

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

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

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

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

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

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

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

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

Assistant/Associate Professor of Legal Writing

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

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

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

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

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

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

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

Crazy if Wrong, Crazier if Right

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

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

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

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

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

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

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

Sarat, Law's Infamy

Speaking of self-promotion....!

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

Some Side Notes on One of the Controversies of the Day

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

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

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

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

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

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

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

       

 

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

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

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

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

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

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