Monday, October 19, 2020

New Article: "A Few Grains of Incense"

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

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

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

Here's the abstract:

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

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

Monday, October 12, 2020

Standard Arguments Against Confirmation (Alas)

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

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

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

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

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

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

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

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

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

Monday, September 14, 2020

Two Pieces on Algorithms and Institutions

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

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

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

I recommend both pieces, dispiriting though they may be.  

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

Monday, September 07, 2020

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

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

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

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

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

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

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

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

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

 

  

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

Sunday, August 30, 2020

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

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

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

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

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

Friday, August 21, 2020

Koppelman and Inazu on Speech, Teaching, and Journal Policy

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

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

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

Wednesday, June 17, 2020

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

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

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

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

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

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

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

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

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

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

Thursday, May 07, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Posted by Paul Horwitz on May 7, 2020 at 11:42 AM in Paul Horwitz | Permalink | Comments (1)

Tuesday, April 21, 2020

Zoom Faculty Meeting Incentive Structures: Some Urgent Proposals

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

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

This simply won't do.

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

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

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

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

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

      

 

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

Monday, April 13, 2020

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

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

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

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

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

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

I. 

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

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

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

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

II.

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

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

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

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

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

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

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

III.

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

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

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

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

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

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

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

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

IV.

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

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

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

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

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

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

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

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

 

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

Tuesday, March 31, 2020

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

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

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

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

More on Emergency Licenses to Practice Law: Identify and Address The Emergent Problem--and Only That Problem

I have further thoughts on Howard's post below on emergency licensing of new law school graduates and on the paper he cites to. A lot of further thoughts. The issue is important and deserving of plenty of thought and discussion, and I lack the time to edit them into fewer or shorter thoughts. So read on at your leisure or your peril.

The summary is this: We should separate the question of the emergency need for legal services in this crisis from our understanding that the same crisis may cause suffering and economic uncertainty for new law school graduates. One involves a distinctive need centering on the object and concern of the legal profession: the clientThat is what we should be thinking of, and every emergency measure proposed or tried should be directed toward the end of best serving clients--specifically, clients in regions and subject areas and under circumstances where there is an actual emergency. It's far from clear that a blanket, nationwide system of admission to the bar, however much it might ease graduating law students' very understandable concerns, actually serves that paramount interest. We should start by identifying the right problem with specificity and tailoring the best solutions to that end. Helping law students is a valuable goal, at least for law schools, but it's a separate one. Where it can be undertaken in a way that helps clients, great; where it can't, we must find some other way. But clients always come first, and if there are better ways of serving those clients who are in specific need of emergency help, we should start there. I think some of the suggestions made by the author in their short but useful paper are worth thinking about and perhaps trying. But it's not clear that they are the first thing worth trying; and whatever we do try should be hedged round with client protections, even if they result in fewer new graduates getting more opportunities for employment. I may say that with personal regret, as a law teacher, but the paramount crisis here has to do with the needs of clients, not students. 

There are also excellent reasons to rethink the bar exam--and legal education--more generally. The current emergency that the authors argue exists may help us see some current flaws more clearly. But if the argument right now is that we urgently need to do something specifically for clients, that should be our focus, not general reform. I start with a question below and move to the longer argument after the jump. 

Under what circumstances would we give someone a license to practice medicine after two years of medical school classwork, perhaps (but not necessarily) with one or two rotations of working with patients? It is not impossible to imagine arguments that some emergencies would qualify--circumstances under which the need for patient care was desperate and it was impossible to retask currently practicing doctors to meet that need. We could also imagine strong arguments against it, or against doing so unless it was quite impossible to manage otherwise. I am no expert in medical education and I imagine, with some basis, that the classwork-then-rotation model has been greatly altered over time. But I also imagine that many doctors would say that classwork alone, or even classwork with significant practice simulations, or perhaps even classwork with significant practice simulations and one or two rotations of actual patient care under close supervision, is not a sufficient qualification to render medical care without harm. If one were inclined to make exceptions due to exigent circumstances, one imagines that the exception would have to fit the circumstances and be carefully circumscribed. For example, one might insist that any emergency license be limited to work in the area most urgently requiring medical care; a crisis in emergency care would be no basis for granting an emergency medical license to practice dermatology. And one might insist that such a license involve only institutional practice, in a fully resourced hospital or large medical practice in the relevant area and involving work with and under the close supervision of experienced physicians, and not hanging out one's own shingle. 

Such a view, one would hope, would be grounded in the view that the question is what is needed for patients. Certainly someone outside the profession would be almost certain to care about patients and not about the professional welfare of medical students as such. They might not be callous or indifferent to the students; they just would take that as a question that must take a distant second place to the question of help or harm to patients. If the emergency called for X number of new (as opposed to existing) doctors in a specific field, then that would be the way to address it. The fact that other medical students might have to wait to be licensed, and would suffer personally as a result, would be sad but not relevant. 

It is quite possible that this emergency would lead medical schools and doctors to rethink what medical education should look like. Again, I pretend to no expertise and, indeed, not much knowledge. But the emergency might lead them to conclude that the qualifications for entry should differ, or that the course of medical education should involve supervised clinical care almost from the outset, or that the whole process (if undertaken differently) could be speeded up. They might shift to year-round teaching. Conversely, they might conclude that some things are right about the current model and that, no matter the emergency, you simply can't make a doctor overnight, or at least not one who is ready to offer care to patients--supervised or unsupervised. But it's doubtful that the specific emergency would be a time to address all these issues in medical education--just the specific emergency.

It's in something like this light that I view the arguments for emergency licenses to practice law referenced by Howard in his post below. Here I have somewhat more expertise, both as a legal educator and quondam practicing lawyer (trained under two slightly different systems, American and Canadian) and as a frequent teacher of the Legal Profession course. Even so, most legal educators are not necessarily experts on legal education and certainly not necessarily experts on legal practice, and I don't pretend here to know more than I do. I would be inclined to grant more expert status to my clinical colleagues on such questions, albeit bounded by the knowledge that not all law students do clinical work and so they don't necessarily see every kind of law student.

But I am certain of one thing: In thinking about these issues, our job as legal educators and lawyers is, like that of doctors and teachers of medicine, to prioritize the welfare of the client. Like (I hope) all teachers, I have immense admiration and affection for my students, something that grows with experience as a teacher and is brought home this week by the feelings one has getting to see one's students again--even within tiny boxes on a computer screen. But if, as a teacher, I give a student a failing grade, that doesn't mean I lack affection for that student or for law students generally; certainly it's not the case that if I really love my students I will give all of them As. And if it should come to pass that I ever have to tell a bar admission committee that some applicant is unfit to practice law, I will still feel the same affection for my students; certainly my affection for my students and concern for their immediate welfare doesn't mean I should always give a positive answer if I am sent an inquiry letter by a bar admission committee. Nevertheless, I do have great affection for them. As a teacher in a profession of which I am a member, however, I have a duty that counts above that affection: a duty to think about the client first. I have no duty to work to maintain legal practice as a professional monopoly, no duty to ensure that all lawyers are as prosperous as possible, no duty to ensure that there are as many (or as few) practicing lawyers as possible. I have a personal desire and institutional duty to make sure that my students are as happy as possible and that they get jobs and preferably good jobs; but subject to my higher duty to ensure that clients are well served and protected. Any reforms that I think are necessary or feasible for law school and legal licensing--eliminating a third year, requiring skills education, requiring that every student take a course in Kantian jurisprudence, improving the bar exam or replacing it with something else, or what have you--should ultimately be answerable to the interest of clients. 

None of the above is a criticism of the paper Howard links to. I assume the authors have greater expertise than I do, and I appreciate the speed of their effort and that it can't accomplish everything given its brevity. They expressly welcome input. They stress near the end of the paper that they "have focused...on the needs of clients and the legal system, because that is the first concern of professionals." They're right, and I take them at their word. They do not advocate for one solution to the problem that they perceive, but offer several options, noting that they may have different individual views on which option is best. And most of the six options they discuss in the paper include suggestions about how to provide "additional assurance of a candidate's competence." All good things. 

The authors also refer a number of times--quite a few times in a short paper--to the interests of current law students. "A substantial number of law graduates rely upon bar passage to secure employment," they write, and without that opportunity they "face months of uncertainty, unemployment, and financial hardship. And after the line at the end about focusing on the needs of clients that I quoted above, they add, "As a profession, however, we also have a duty to the students completing their legal studies this spring....[W]e need to provide humane options these new graduates[.]" And although they make a reasoned case for the urgent need for lawyers to provide client services in the present emergency, there must necessarily be a speculative aspect to it. What data or arguments they have are thus supplemented with affective words like "urgent."

In thinking about what is needed to respond to what the authors describe as an emergency for people in need of legal care, our first and last thought should be: What is needed to address that emergency? I have many personal and institutional concerns about the welfare of my own students, but no professional duty to make sure that every graduate of every law school finds a job. (I believe I do have a duty to argue that law schools not over-admit students for their own reasons, although some debate this point. I also can imagine thinking that accrediting bodies should have a global duty to ensure that as many or as few students are admitted to law schools as suits client demand and that law schools not be free to pick their student body numbers based on irrelevant considerations like rankings, tuition dollars, or their survival as institutions.) As a lawyer and professional educator, I do have a duty to ensure that every client is well served.

Like many law professors, I have a number of opinions about what ought to be done differently in legal education and legal licensing. But there is a danger in any emergency (or any other situation) of confirmation bias, of seeing any problem as best solved by what I already happen to think is a good idea, and of not letting a crisis go to waste. I should be on my guard against my own tendencies in this regard, and readers should always be wary of arguments that aim to solve a particular problem but happen to confirm the writer's own long-standing views. (Read any op-ed section of any newspaper these days to see this tendency in full bloom.) I don't make this charge against the writers of this paper, to be clear. Rather, I'm making the point that if the goal is to respond to an emergent problem, we should aim to solve the specific problem, and only that problem, responsively and effectively. Anything else is secondary and perhaps, given our natural tendency to see new issues through the lens of longstanding views, suspect.

So we should ask something like the following questions: Is there an emergency in providing legal services to people in need? What sort of emergency, specifically? What kind of services and in what locations are in a state of urgent need? Who is best suited to provide those kinds of services in those locations in the most competent and efficient fashion? How many inexperienced new law school graduates, as opposed to existing and more experienced lawyers, are needed to fill the gaps? How can we best ensure that they do so in a way that serves those clients without doing harm to them? We might separately be interested in ensuring that things like the bar exam are dealt with well and in a way that minimizes harm to graduating law students, simply because that's the job of law schools and state bars. But I don't know that this can be called an emergency. The authors talk movingly and, I'm sure, accurately enough about the many personal, emotional, and other costs currently being suffered by imminent law graduates. But that is not client-centered, not unique to them as compared to similar suffering and insecurity on the part of millions of others, and not necessarily a problem that is best solved through emergency waivers of professional competence certification and a license to practice law, as opposed to solutions such as helping them find government aid, addressing tuition and debt issues (which might harm law schools and their faculty among others, but better that than harm the individual students), and so on. I take as a general guide that if a solution to some problem would help law students but hurt clients, it should be rejected; if it would help law students  but might harm clients, it should almost certainly be rejected; and if some solution can be found that might help law students without harming clients at all, it should be preferred. 

Let me assume that there is a legal services emergency. More specifically, let me assume that there is a legal services emergency in some practice areas and in some places. Given the numbers, it's harder to argue that there is a crisis requiring emergency solutions in Alabama, or Minnesota, or New Mexico. (I live in one of those states, as do my children; I hope it's clear I'm hardly lacking in concern about its well-being now and in the near and long term.) There are obvious areas in which there is a good argument for emergent needs for legal services, such as criminal law and no doubt others. And it's reasonable to focus, as the authors do, on particular populations most in need and most lacking in resources, and who require help navigating government aid and other particular immediate needs. If we widen the net to assert that in every place and in every practice area, more people are going to need lawyers, if not now then over the next six months to four years, I'm not sure that qualifies as an emergency requiring immediate and drastic change. (Or, if it does, the solution can be more minimal, such as an emergency license with an expiration date and a requirement to take the bar exam at some future date.) The soundest question is, how many lawyers are needed to provide specific services in specific places?

The next question is who should provide the relevant services--or, to put it differently, why recent law graduates, who may or may not have clinical and other practice experience, are best suited from a client- and need-centered perspective to fill those needs. The clients most in need of services and in the most precarious positions are the ones who can least afford legal error, however innocent, owing to something like inexperience. If we are urging state bars to take emergency action owing to an unprecedented emergency, it's not clear to me why the first place to look is to recent graduates rather than already-existing practicing lawyers. There were some 180,000 lawyers in New York state in 2019. Are they all providing essential services? Are all the services they are currently providing--say, those provided by first-year associates at large New York City firms--really more essential than the services the authors point to as being in a state of emergency? Despite their lack of experience in a given area, might their general experience qualify them better to provide those specific services than new law school graduates? Is it any more or less radical to eliminate the bar exam than to demand, on an emergency basis, a higher amount of pro bono work or, paid or otherwise, that lawyers provide work in specific areas in which there is an emergent need? Which is better for clients? Or, if there are lawyers in relevant areas of practice in a state that is not in crisis, would it be better or worse for that state's bar to require them to provide services long-distance for the clients in the need-filled regions? (Surely much practice right now, in areas other than and perhaps including criminal law, will be distance practice, regardless of whether the person providing it is a practicing lawyer or a law graduate and where they are located.)

One possible practical answer is that it's much easier politically and practically to unleash new graduates than to get existing lawyers to provide needed services in particular areas in particular places. I don't mean that as an insult. I don't doubt that many existing lawyers are of their own free will extending themselves and providing these kinds of needed services. But the political economy of the two approaches is very different. That matters. A solution that's not going to happen in the real world is not a solution. But we should start from the perspective of finding the best solution to the clients most in need of emergency services, and depart from it only if we have to, and not only for the sake of convenience or because it would kill two birds with one stone. And it is not impossible to start with the best solution and see how many existing, experienced lawyers could be convinced or (to be blunt) coerced into providing emergency services, and then estimate how many more lawyers are needed, even if they are inexperienced and currently unlicensed. That raises logistical problems of its own, of course. But I'm not sure it's worse--for clients--than a blanket nationwide waiver. 

There are two other possible answers. One is offered in passing by the authors: that "these graduates are fully equipped to practice online." I think "in passing" is all that it deserves. I'm sure most of my students know how to function online better than I do. I'm not sure they know how to practice online better than already-experienced lawyers under the age of 30 or 35. And I would emphasize the difference between being equipped to practice online and being equipped to practice online. An inexperienced 3L with no clinical experience and little skills training may be better equipped to commit an error, harmful to his or her client, more speedily and efficiently and with more skillful use of technology. And the point is undercut later in the paper when the authors write that "[current] [l]awyers...are adapting quickly to the online environment." If that's true, then this argument doesn't carry much weight. 

The other is that Wisconsin already has a diploma privilege for graduates of its states' law schools and that "this system has worked well for Wisconsin" and the experience shows that "risks to the public are minimal." But Wisconsin's privilege is strictly administered, with students required to make satisfactory grades on 30 credits in mandatory subject areas and another 30 credits in specified elective subject areas. It also surely depends on the small number of law schools, their closeness to the bar, the presence of a board of visitors or dean's advisors, the size of the bar, and the nature of the state legal community. As the then-director of Wisconsin's board of bar examiners observed some time ago, if it works it is because Wisconsin uses rigor and regulation to make it work. The authors argue that a constraint limiting the privilege to the state in which the graduate went to law school "would hamper efforts to serve clients, and would be particularly problematic for graduates (and their employers) who have already accepted jobs in other states." This, it seems to me, is the equivalent of arguing that we should follow Wisconsin's privilege while abandoning the features that have made it "work[] well" and made "risks to the public [] minimal."    

Let us assume that clients in some places need legal help in some areas on an emergency basis and that some number of recent or imminent graduates are needed to help fill that need (in addition to the use of more experienced lawyers who are thus more likely to be able to render experienced and more-than-competent service to those clients). In my view, the most promising lines of inquiry followed by the authors in the paper involve what they call the "Emergency Diploma Privilege-Plus" and "Supervised Practice" options. The first option is, so to speak, the bare Wisconsin privilege with the addition of substitutes for some of the Wisconsin duties that appertain to that privilege; the authors call it a diploma privilege-"plus," but it's more of a way to ensure that the privilege actually does what the Wisconsin privilege does. It requires things like certification that the student successfully performed a clinic or externship while in law school, completion of "bridge-the-gap programs," an affidavit from an employer or externship supervisor, and area-specific CLE program completion.

The second option is familiar to me given that I completed articles of clerkship in Ontario, i.e. working under supervision as an "articling student" for a year before joining the bar, although it's a little different and more minimal than that. It would allow new graduates to practice under the close supervision of a licensed lawyer, and admit them to practice after they had completed 240 hours of supervised legal work and obtained an affidavit from the supervisor attesting to their competence. Given the point of dealing with an emergency need for client services in particular places and subject areas, one could imagine a version that specifically granted the ability to practice under close supervision by a lawyer and in the relevant areas of need, and that continued that supervisory requirement for much more than 240 hours. (At the time, my articling status involved working under supervision for a year--with a form of bar exam afterwards.) These new lawyers might not be able to go off after a few months and join an M&A department or hang out their own shingle somewhere providing commercial real estate work; but that is not the main point, as I take it, of changing the rules on an emergency basis and for urgent reasons. At that point, it would really be about helping law students, or about revising the rules for bar admission, not about serving the emergency needs of newly vulnerable clients in a crisis.

I think these two options are well worth considering. I certainly applaud the authors for raising them as options, as well as for the other options they examine. I offer no opinion about the others. (One--exams administered in small groups--seems ridiculous on its face given our current concerns about eliminating unavoidable personal contact; but although I share that reaction and many others will, its plausibility really depends on information we arguably just don't have right now.) UPDATE: I also find this suggestion from Derek Muller interesting--insufficient in itself, as I think he recognizes, but a useful addition to the list of ideas and something law professors who favor action on the bar exam ought to be eager to spend the time doing. 

And it is worth adding that in a general sense, I support rethinking the bar exam and professional licensing for legal practice generally. I learned vastly more, and of a more important nature, from articling for a law firm for a year in Ontario and getting edited, praised, or chewed out by lawyers than I did from cramming and sitting for the bar exam in the US. I also support rethinking legal education. On the one hand, it is understandable that a number of recent reactions to the necessary move online have consisted of op-eds in the Chronicle of Higher Education worrying that this will all become a way for universities to argue that we need fewer faculty or less in-person education, that it will become a vehicle for neoliberal this-or-that, and so on. On the other, readers who find the authors' arguments convincing--who think that recent law graduates will be in a position, either under special conditions or vel non, to provide competent legal service to clients (and if it's not competent, we shouldn't be urging them to provide those services, regardless of what it means for the law students themselves)--should certainly be giving thought to what we do and don't need in legal education. Why not two years of law school and one year of supervised employment? Why not one or one-and-a-half years of law school with a year or half-year of supervised employment? Why not insist on the same required, practice-oriented courses and credit numbers that the Wisconsin courts insist on as a condition of the diploma privilege, hiring to meet those needs--and, if it turns out that there is no room for or interest in many of the courses many of us like to teach, on law and literature or legal history or social ontology and the law or contemporary constitutional theory, then too bad? Why not shrink the full-time faculty further, focusing in hiring on those who are most skills-oriented in their qualifications and teaching, and rely more heavily on adjunct practicing attorneys? (This is not a criticism of academic lawyers. I like academic law. But I have no principled objection to the idea that more of us ought to be shifted over to Departments of Law across campus, at salaries commensurate with those of other departments and without the same professional training responsibilities. I might not like it personally, but that doesn't make it a bad idea. No one promised me that being a law teacher would be a great gig.)

One could imagine someone reacting to these questions by saying now is not the time to address all of them--to remake the bar exam and legal education (although the two are probably closely related and one may well entail the other). I agree. The question is how to address a specific and urgent problem as closely, directly, and effectively as possible. Other matters, however important, can or must wait until later. (This is also a recipe for quietism, admittedly. As I've argued before, on reform issues a sense of urgency and energy is, in a sense, called for especially in moments of non-urgency, when reform is both least likely and most likely to be undertaken in a sound and successful manner.) But this of course applies to the whole question of what we should or must do right now. What we should and must do is identify specific emergency-related crises and needs with respect to the provision of legal services for vulnerable clients. Other needs and concerns must come second. There are good reasons for law schools to find ways to help law students. But if that is a crisis, it's not the same kind of crisis, and it should only be alleviated through something like a bar exam waiver if it would not otherwise have any negative impact on clients, who are the only legitimate justification for our guild status. As little as I tend to like the bar exam, as oppose to other methods of certifying would-be lawyers as fit to practice, I don't think it would be a sound move to get rid of it nationally without other safeguards, and in any event a nationwide waiver wouldn't really be a response to the emergency that's at the heart of the authors' proposals.        

   

 

Posted by Paul Horwitz on March 31, 2020 at 01:36 PM in Paul Horwitz | Permalink | Comments (0)

Sunday, March 22, 2020

A Guide to Current "Relevant" Writing: Start With Boring. Maybe Stop There. And Use Your Desk Drawer.

This New York Times piece by essayist Sloane Crosley asks: "What happens when every writer on the planet starts taking notes on the same subject?" She argues that "[f]rom an artistic standpoint, it’s best to let tragedy cool before gulping it down and spitting it back into everyone’s faces." She continues:

We all know how limited this kind of get-it-while-it’s-hot writing will seem in the future. That’s never stopped us from doing it. It’s not stopping me from indulging in a version of it right now. Look at the narratives that came out in the years immediately following 9/11. They have not aged well. Really, we’re only just now nailing World War I. But like everyone else, writers feel the need to distill life as a means of surviving it.

Our particular era strikes me as especially susceptible to this impulse. Part of the reason is that our response to disaster (terrorist attacks, hurricanes, school shootings) is to get out there and declare the death of irony....[I]n the moment, we feel the need to prove our solemnity on social media by setting a universal mood, and this is poison to actual book writing.

The other issue that separates our particular time from the 1600s (aside from the hygiene and the snacks) is the personal voice to which we’ve become accustomed — “I” being the vowel of the century.

Crosley's conclusion at the end of the piece is a little more mixed. But the tone is one of caution against trying to be the first with the most immediate "relevant" writing. I think that's a good piece of cautionary advice.

How does this affect scholarship, blogging, and so on in our own corner of the academy, in which dozens of blog posts and, perhaps, countless articles currently in draft are titled "In a Time of...?" I admit to a bias, since I am seeing a lot of predictive writing out there despite our significant lack of the kind of information on which one can base even poor predictions, and I already think of futurist writing as the second-lowest form of intellectual life, after the TED talk. But I would suggest the following:

1) Take it slow. Doubtless this is already true faute de mieux, as most of us are spending most of our time (apart from Netflixing, parenting or caring for loved ones, and other forms of service) learning how to teach online and either prepping for classes or already teaching them, and many of us have edits to make or deadlines to meet for existing prelapsarian pieces. But with or without those other commitments, there is not a pressing need for everyone to immediately get out there with broad academic musings about the new normal or what will follow after that. We lack the information and time to do it well and most such pieces, even those written by experts, don't age well, as Crosland notes. The very instincts and impulses that impel us to engage in such writing are the same instincts and impulses that mar accurate analysis and prediction. So, curb the urge to be among the first, or among the first thousand, to tell us all what it all means for the future, or even the near future. There is, indeed, nothing wrong with writing nothing about the "new" whatever. If you are still interested in the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, and that's where your expertise lies, write about that.   

2) Start with boring. The most useful information people in a given field can offer at this time is narrow, quotidian analysis and advice. What do current rule changes mean in a given area of law? What deadlines and processes have changed? What practical questions do these raise for particular subjects at this moment? I'm not sure that most legal academics are in a better position to give such advice than practicing lawyers, and many would readily conclude, or concede, that they are not. (Clinical legal academics are surely in a better position.) Beyond that, it may vary by field and individual. Probably the role of a legal academic in this moment is to pay close attention to what lawyers on the ground are saying about the issues they face, and then offer what they do have: the luxury of time and distance, which they can use to collate, summarize, and analyze. If one is going to write about current events, the best bet is to be boring: write about small problems, technical problems, practical problems, and save the big-picture musing for when it is likelier to be accurate. To be first with the latter kind of writing only results in fame and glory, not accuracy or utility. A blog post or legal periodical publication titled "Using the Space Bar to Mute and Unmute in Zoom," or "How to Get an Emergency Hearing in Family Court in Paducah," or "What Section 7005(c) of the Families First Coronavirus Response Act Means" will be much more useful and accurate than one on "The New Separation of Powers in the Age of Coronavirus," or "How International Law Will be Utterly Transformed by the Plague Years." The only advantage of those posts is that no one will much mind or even notice when they are falsified by events.

3) Avoid the portentous titles. Maybe I'm alone in this, but I seriously doubt it, and my admittedly unrepresentative Facebook feed suggests otherwise. But even if most people agree that we should lay back on the ominous titles, there is a problem of temptation, of collective action problems, and of large numbers here. "Tips for Teaching Online" is a perfectly sound title. "Teaching Online in an Age of Coronavirus" is a little much. Given the risk of cliche, it's probably a worse title than "Tips for Teaching Online." We're already aware that it's an age of Coronavirus. Easy does it. (It's only fair to acknowledge that some blog posts here have used similar titles. Again, there's a collective action problem: With X number of people on a group blog, and each person figuring a couple of posts a week titled in that fashion are relevant and understandable, we quickly go from a couple of drops to a deluge. In any event, I'm writing not to criticize writers here or elsewhere for past writings, but to encourage conservatism in future writings. I do wish, I must admit, that the excellent Facebook groups for teachers, in law and elsewhere, who are going online would rename themselves with something less dramatic.) I can only pray, as I suggested earlier this week, that law review editors, symposium planners, and groups like the AALS impose a little top-down restraint, in title choices if not in subject matter. Both would be nice.

4) Use your desk drawer. It's there for a reason. Of course there is good reason for academics to write some bigger-picture stuff on major topics. Of course this (with "this" as a very large umbrella term) is the number one topic on everyone's minds and everyone's agenda. To the extent that one writes what one is impelled to write, rather than what would be of most use or what is most clearly within one's expertise, then write it, even if it's an "In an Age of" piece. (You don't have to choose that title, of course!) Then hit "save as draft" on your blog platform or, if it's an article or op-ed, print it out and stick it in your desk drawer for somewhere between 24 hours and a week. In a day or a week, it might be out of date. So be it. In a day or a week, you might be find the tone immoderate or be inclined to revise what you've written in light of new information or better judgment. In a day or a week, you might find it's still relevant and useful and that the tone is still appropriate. Then it may be time to go forward. (I only partially took my own advice. I did save this as a draft post and hang on to it for a bit, but not the full 24 hours. Mea culpa.) 

Posted by Paul Horwitz on March 22, 2020 at 12:07 PM in Paul Horwitz | Permalink | Comments (0)

Saturday, March 21, 2020

A Cultural Document for Our "Times"

My long-simmering project on social class and the legal academy tends to keep my antennae up for cultural moments and documents that nicely reflect the tastes and folkways of a certain class cohort--not the one percent, which I find uninteresting, but a larger band, the professional-managerial class or even Richard Reeves's top 20 percent--and of the institutions it uses as a mirror. To that end, I give you this week's special feature from "T," the New York Times Style Magazine: T's Guide to Staying at Home, and Making the Best of It.

It includes a "San Francisco-based florist"; an avocado toast recipe from a member of Vampire Weekend; a recipe from a professional "food artist" who has "devised some stunning conceptual installations"; a "turmeric latte" to serve as "a calming elixir before bedtime"; "the best vitamin-filled serums to rejuvenate your skin as the season begins to change"; a column answering the question, "How do I find meaning and beauty in my life?"; a story on the renovation of a "once-lovely 19th-century building" outside St. Moritz; and one on a designer who "established his distinct sartorial perspective with a series of collections that folded in comments on contemporary social and political issues." 

Enjoy. 

Posted by Paul Horwitz on March 21, 2020 at 09:04 AM in Paul Horwitz | Permalink | Comments (0)

Friday, March 13, 2020

Hyperlinks as Pseudo-Authority: A Fine New Example

I wrote in my post yesterday, "The way that footnotes and hyperlinks have become a sort of non-scholarly argumentative rhetoric of their own deserves more examination." Appropriately enough for an age in which people simultaneously worry about misleading uses of news or newslike substance, seek more and better authority when they can get it, and yet are aware of the ways in which the appearance of authority can be misleading or misused, the footnote and hyperlink, I think, often serve less as support than as a form of strategic use of the trappings of authority. The colored link, like the robe and wig on a barrister, offers a kind of appearance of a guarantee of seriousness, no matter the reality underneath. No doubt students of rhetoric, and specifically of online rhetoric, have done this work. I would love to see some of it as applied specifically to writing about law or by lawyers (especially legal academics, the more their work bleeds between "platforms"). 

In any event, a wonderful example of the gap between the appearance and reality of that "authority" comes along today. Slate has a piece about a former state court judge who has retired from the Supreme Court bar, and done so in a letter criticizing the Supreme Court and a number of its justices. I should say I have no problem at all with his doing so. It is his right, a noisy resignation is a respectable and longstanding practice, and he is in an entirely different position than Judge Adelman, about whom I wrote yesterday. 

Here's the part that interests me. The lead-in part of the article states--in hyperlinked text--that members of the Supreme Court bar "are deemed members of the legal elite." Presumably, one who didn't click through and didn't know otherwise would believe that 1) members of the Supreme Court bar are, or are (presumably rightly) deemed, members of the legal elite, and 2) that the article linked to provides authority for that statement. But if one clicks through, one finds an article headlined, "For lawyers, the Supreme Court bar is vanity trip." The article adds, "Joining the group may sound exclusive, but it requires less paperwork than visiting a new doctor's office and costs less than an annual gym membership." It notes that "[t]he Supreme Court estimates its bar has 230,000 members, a number that may be inflated because no one checks to ensure members are still alive and practicing." Other descriptions and concepts from the article include "seemed like fun," "I know it's very superficial," "[others interviewed] sheepishly [call the membership] cool," and, in essence, "hey, neat-looking certificate." One lawyer calls it an "honor," but that is far from the gist of the piece. So a more accurate text for that hyperlink would have read, "members of the Supreme Court bar are thought by no sensible person, including themselves, to be members of the legal elite; indeed, no one is even sure how many of them are still alive."

The journalist who wrote this is skilled and experienced, so I assume it was an error. Perhaps the link was added later by some editor or assistant, although I note that elsewhere in the article's text, the author writes directly and without further support that the Supreme Court bar is "the most prestigious association of attorneys in the country," a claim I find either highly ambiguous or entirely dubious. It is a more tantalizing speculation that perhaps the link is itself a kind of elaborate and knowing parody of hyperlinking itself. But it was lovely to find it so soon after what I wrote about hyperlinks yesterday, and further evidence that not every appearance of authority, in the news or elsewhere, is actually authoritative. One more reminder, if any were needed: Always read the cited text! 

  

Posted by Paul Horwitz on March 13, 2020 at 06:25 PM in Paul Horwitz | Permalink | Comments (0)

Thursday, March 12, 2020

Adelman and Posner

Josh Blackman has already written twice about federal district court judge Lynn Adelman's article (now up to around 5.800 downloads) criticizing the Roberts Court--or, as Slate puts it in its inimitable way, "go[ing] for broke in criticizing conservative bias in the judiciary." Having now read most of the article, I agree with him in general terms, although I would temper my criticism of Adelman and his article more than Blackman does. (Adelman's defense of the article is another matter. In his own words, it is so terribly weak as to seem like "a masterpiece of disingenuousness.") But what interested me is why my reaction to it was so different from my generally approving reaction to the long and remarkable record of extrajudicial writing by former judge Richard Posner. The Slate piece--which is awful and whose main argument is that anything goes in love and war--also notes Posner's writings in defending Adelman. Why do I think Adelman's article is worthy of condemnation, while wishing that Posner had written even more (if that were possible) in his extrajudicial prime?

I think the answer comes down to the difference between genius and banality, between true independence of mind and something less than that. In criticizing another judge for extrajudicial statements a few years ago, I wrote, "If she had had something novel to say, I would be more charitable[,] but she doesn't." In our imperfect world, genius is rare. Even short of genius, there is always a deficit of genuinely interesting and independent thought. It is still rarer in the political world, but it is still in short supply even in the academic world, let alone the legal academic world. It's hard to achieve and there's not much of a market for it. For more or less intellectual reasons, along with an admiration for those who can skillfully and successfully administer therapeutic shocks and offer useful provocations, I am willing to forgive much for the sake of genius and for one who follows an intellectual and humanistic muse wherever it leads.

Take him for all in all, I would say Posner qualified for that kind of leeway. I am well aware of the decades of excellent and often on-target criticism of Posner's work. I sometimes disagreed publicly with him myself, and more so in his later years, when I think there was a falling-off in intellectual return on value. I nevertheless happily stand by my general description of his writing: "confident, candid, acidic, impatient with the pieties that abound in American law."

He had no truck what he called "Law Day talk." But he found it everywhere, and said so. He agreed with Adelman that Chief Justice Roberts's "balls and strikes" language at his confirmation hearing was silly and probably disingenuous. (He would not have called it "a masterpiece of disingenuousness." He would have asked the obvious question: What makes it a "masterpiece," and not commonplace? He would have rejected the cliche.) But he would not have stopped with--he did not stop with--directing that point at Roberts alone or reducing it to a personal accusation. He related it to a "legalist theory of adjudication" that judges "believe (or pretend to believe)" in. He wrote that Roberts's statement was "so ridiculous, and Chief Justice Roberts is so sophisticated, that it cannot be what he actually thought." But he saw it as a general problem, a symptom of a general jurisprudential perspective that has deep roots in American law. He criticized it wherever he saw it, and didn't stop at some party line. He also understood, as we all do, that this kind of statement is par for the course in our demand for a particular kind of edifying theater in the legal and political world. He knew that "judicial confirmation hearings have become a farce in which a display of candor would be suicide" and would, perhaps worse still, be a kind of "category mistake," a departure from the expected script. Posner--unlike Adelman--noted that Roberts's statement "was echoed four years later by Sonia Sotomayor at her confirmation hearing."

This is a trivial example and not his best. An Affair of State, Problematics, Overcoming Law, The Problems of Jurisprudence: these are masterpieces. They may be wrong; they are surely subject to criticism; but they're interesting, provocative, witty, and humane. Like what Posner said about Roberts (and Sotomayor, and "legalism," and confirmation hearing rituals), they give off a sense of independence, engagement, candor, and personal and intellectual liveliness; a willingness to criticize friends and foes alike if the criticism is warranted; and a sense that if the criticism were only personal or political, and not connected to an interest in our legal, political, jurisprudential, and intellectual world as a whole, it would hardly be worth making.

I have no interest in writing an encomium to Posner. What's the point in praising an intellectual, rather than engaging with, reacting to, and often criticizing him or her? I don't think he always avoided the merely personal in his criticisms, although I do think that when he offered an evisceration, it was because he thought something someone had written or said merited it, and not simply because he didn't like the person or didn't get a result he wanted. (His highly critical and wonderful evaluation of Aharon Barak is a terrific example. He was equally publicly critical of Robert Bork.) The flavor of his eviscerations was thus entirely different from the tenor of the introduction and conclusion to Adelman's article. In general, I might have walked away from Posner's writing more cynical, but also enriched, and almost never (until the last few years of his active writing) with a sense that he was conducting an uninteresting form of uninteresting politics by other means.

Posner crossed the line--wherever it is--between appropriate and inappropriate remarkably rarely. Surely he did cross it from time to time, even in his prime. But I was inclined to take that as a reasonable cost for getting so much of value; and because I got so much of value from his writing, I was willing to allow a substantial margin of appreciation. Genius makes and gets its own allowances. But genius is rare, and not every judge can walk the high-wire line between saying something interesting and provocative, and saying something that is merely inappropriate, as successfully and without toppling. In a review of one of his later books, I wrote, "I wish more judges, lawyers, and law professors were like Posner. But all of them?...Even a world filled with first-rate Posners would be an unsteady place; one filled with inevitably less capable people, taught nothing but how to emulate him, would be calamitous." Whatever I am willing to forgive a few judges who manage to write and say interesting things extrajudicially, most of them, however bright or brilliant, are but workaday performers. There are good reasons for them to stay in their lane.  

Adelman's article is not even second-rate Posner. I am inclined to be more moderate in my criticism of the article than some of the criticism out there. It is neither as outrageous as its strongest critics suggest nor as fierce and coruscating as its defenders suggest. The least appropriate material comes in the wrapping: its opening sections and conclusion. The rest is a commonplace, fairly cut-and-paste criticism of decisions he dislikes and that many others do too. But it suffers from one major problem and one minor (in a sense) problem.

Its worst crime is its banality. He has nothing new or interesting to say: nothing one hasn't already read in stump speeches, op-eds, and safe and usually mediocre publications like Slate or The Atlantic. Its footnotes are not so much an illustration of learning as a rounding up, for the sake of form and safety, of the usual suspects. (This is a common feature in footnotes and hyperlinks in pieces of  this sort. The way that footnotes and hyperlinks have become a sort of non-scholarly argumentative rhetoric of their own deserves more examination.) His canned history is of the William Manchester variety. All the usual signposts are there, down to the conspiracist focus on the Powell memo. His sin has nothing to do with being right or wrong; there's some of both, and the latter arguably happens more often by omission rather than commission. The article's sin is being boring.  

Because Adelman fairly literally walks a safe party line in his article, a secondary but not unimportant consequence of the article is that it is political in its omissions. It was typical that Posner noted that both Roberts and Sotomayor--and, he might have added, just about everyone else who has faced a confirmation hearing for the past 35 or more years--offered the standard legalist line on judging. I don't think he did it for the sake of even-handedness, but because he thought it was a ritual that infected judicial politics generally and that offered a window into standard views (or tropes) on law and judging; it was the phenomenon that interested him, not the individuals. That Adelman treats the "balls and strikes" statement as seemingly unique to Roberts shows either a remarkable incuriosity, or the kind of blindered perpective and motivated reasoning that must be a terrible and comforting form of self-imprisonment. (It could merely be hypocrisy. But I find hypocrisy uninteresting. Far more interesting is the way in which we convince ourselves with near-total sincerity to see some things and not others.) That Adelman somewhat arbitrarily (by his own admission) begins his narrative in 1971, with a brief prologue of praise for the Warren Court, enables him to omit the fact that it was the Warren Court that resisted positive welfare rights and largely strangled that movement in the cradle. His Bush v. Gore, serving as an exemplar of "relatively direct assaults on democracy," is a 5-4 decision; that seven justices found equal protection problems goes unmentioned. The "unpersuasive" and "catastrophic" Medicaid expansion ruling in the ACA case is laid at the feet of the "Roberts Court" and "Chief Justice Roberts"; any role Justices Kagan and Breyer might have played in "[striking] a mighty blow against a government effort to provide greater equality" is left unexamined.

It is perhaps unsurprising for that reason--indeed, for many reasons, all of which would have led to a much more instructive article, not just about the Roberts Court but about American law and democracy--that although one finds a couple of uses of the word "liberal" in the article, along with a few descriptive references to "Democrat" or "Democratic" and copious references to "conservative" (matches on thirteen pages) and "Republican" (matches on nine pages), one finds only a passing historical reference to "elite," and zero uses of the much-used (and much-misused) word "neoliberal." The possibility that the problem he takes as the larger subject of his article--inequality and disenfranchisement--is a product of a much more systemic environment, one to which conventional liberals and conservatives alike have each contributed in different and similar ways, and in which each have constructed safe harbors for the professional-managerial class and cultivated a community of ultra-wealthy supporters, either does not cross his mind or passes swiftly through it without encountering any obstruction. Adelman was appointed to the bench by President Clinton; Clinton's contributions to "welfare reform," "personal responsibility," "criminal law reform," "unfettering" the banking industry, "Third Way" positions on trade and privatization, and other signal accomplishments again go unmentioned. Adelman illustrates that it is possible to be a "progressive" (as Slate labels him) on some issues and remain firmly neoliberal on others, or perhaps just to be a progressive with a very bad memory. There are far more interesting discussions about inequality and disenfranchisement, formal and substantive, to be found by many writers on both the left and right, and occasionally even by mainstream liberals and conservatives. Adelman's piece, I have said, is uninteresting from any perspective. Perhaps I should have said that the ways in which it is uninteresting are of some interest in themselves.

I began by saying that when it comes to extrajudicial statements, I am willing to forgive much for the sake of genius and for those who make actual intellectual contributions. When a judge's extrajudicial statements arguably cross the line, but only for the sake of what turns out to be a banal position, I am less inclined to be charitable. Perhaps a judge who has something genuinely interesting to say should say it despite his or her office; I don't think that's necessarily the case, but I tend to value it when it happens, even if the statement is arguably inappropriate, and am willing to treat it as worth the cost. A statement that is arguably inappropriate and uninteresting contributes nothing to the discourse. It sacrifices confidence (deserved or otherwise) in the judiciary without offering any intellectual compensation for the sacrifice. I doubt that serious readers would disagree that there is nothing of value or originality here. I suspect that many defenses of the piece would reveal that deep down, most of us have some secret sympathy for Roman Hruska's famous plea on behalf of the "plenty of mediocre judges and people and lawyers" who deserve a little representation. I am only calling Adelman's article mediocre; I have no views about his skills as a lawyer and judge. But it is possible to be a fully competent and even excellent judge without having much of value to say beyond that, at least without entering electoral politics. (Adelman was a state legislator before becoming a judge and thrice ran for Congress. He could, of course, always step down and run again. There's hardly any indignity in that.) I'm delighted to have them doing their jobs. I think it's generally best if they don't do anything else.    

   

Posted by Paul Horwitz on March 12, 2020 at 10:03 AM in Paul Horwitz | Permalink | Comments (0)

Thursday, February 20, 2020

Thurgood Marshall and James Patterson: A Comment on Tushnet on Dane

Mark Tushnet, the only blogger for whom I would be willing to break my "characteristically thoughtful" rule (especially for his posts on legal scholarship and his occasional comments on specific articles), adds a "supplemental note" on the discussion of Perry Dane's piece on law clerks and jurisprudence, about which Howard and I have written our own posts below. Here I add a supplemental "note" to Tushnet's supplemental note. Let me first repeat: Read Dane's piece. It is provocative and productive of new ideas, as good scholarship should be, and at times (as in its discussion of "open secrets" and American clerk culture) quite timely. Tushnet's intervention is narrow but, I think, gives rise to interesting questions of its own.

Tushnet writes:

A short and therefore distorted version of Dane's argument is that the appearance of the judge's name on an opinion acts as an "icon" or signal about something--on my reading, about the fact that the opinion should be understood to be part of a larger project of developing "the judge's" vision of the law that is consistent across large-ish domains and over large-ish periods of time (the "ish's" inserted to show that a person's views and understanding of the relevant domains can change without casting doubt on the proposition that the person is pursuing a project). But, Dane worries, how much confidence can we have that the words published under the judge's name are part of such a project when they are produced by an ever-changing population of law clerks?

To this he adds two pieces of recollection about serving as Thurgood Marshall's law clerk. First, "because the clerks knew that post-drafting review would be light, we were extremely careful not to send a draft to the judge before it had been carefully vetted by all three of us." Second and more important, 

[W]e operated with a strong norm of what (as I recall) we called "personal stare decisis." That is, we thought that we should draft opinions that were as consistent as we could make them with the judge's prior decisions. (Note that this was Marshall's fifth year on the Court, and he had a small-ish relevant body of decisions from his time on the Second Circuit.) Clerks following the norm of personal stare decisis would make the opinions published under the judge's name part of the Dane-like project.

I think this is a pretty common practice. I read it for present purposes in a descriptive and not normative fashion. Tushnet is right that it fits in with Dane's account. Insofar as it suggests that there are some institutional norms that help tie the corporate practice of opinion-writing to the project pursued by the "judge," it may help address Dane's question about how much confidence we should have in the continuity and reliability of that project. Inasmuch as Dane offers his piece as a "catalyst" for thinking about jurisprudential issues concerning the courts (and the other branches), however, and concludes by noting rather than trying to resolve the "deep and uncomfortable questions" raised by our practices, I think Tushnet's observation itself can be a catalyst for more "uncomfortable questions." 

In reading Tushnet's post, I was reminded of James Patterson--and "James Patterson." Patterson is the "author" of scores of best-selling books. They "all share stylistic similarities." And "[t]o maintain his frenetic pace of production, Patterson now uses co-authors for nearly all of his books. He is part executive producer, part head writer, setting out the vision for each book or series and then ensuring that his writers stay the course." According to one profile, "Patterson will write a detailed outline--sometimes as long as 50 pages, triple-spaced--and one of his co-authors will draft the chapters for him to read, revise and, when necessary, rewrite. When he’s first starting to work with a new collaborator, a book will typically require numerous drafts. Over time, the process invariably becomes more efficient." Patterson-as-author has thus become the "James Patterson" brand, a brand that draws many millions of readers. Unsurprisingly, given the tradition of viewing a book as "the product of one person’s imagination and sensibility, rendered in a singular, unreproducible style and voice," his practice has drawn criticism and derision. But it is eminently successful, and I assume (not being one of his readers) that some care is taken to make sure that each book is sufficiently within the stylistic universe of "James Patterson" to maintain a consistent brand and retain readers' trust. If each book was radically different, "James Patterson" would be less a unique brand than a sort of retailer of varied books. Note that his frequent "co-authors" develop a comfort with his style, so that "the process invariably becomes more efficient." It is not hard to imagine the next step, in which Patterson departs this vale of tears and a committee of those co-authors ensures that "James Patterson" is still putting new books in airport bookstores every month or two. Many popular authors have, in this manner, been remarkably productive after they stopped breathing.

How different is the living "James Patterson, Inc." enterprise from the "Thurgood Marshall" enterprise? Not very much, it seems to me. Indeed, on Tushnet's account and given the description of Patterson's process, there may be greater quality control and more authorial personality in the Patterson model. That model and that approach to books is not to everyone's taste, but as a process it appears to work. Is there anything wrong with it? Is there anything more or less wrong with the Marshall "project" that Tushnet describes than with the Patterson enterprise? Maybe not. (And it is worth asking again, to repeat the aside I offered in my first post: If there's nothing wrong with it in these cases, why exactly would it be wrong if applied in a similar fashion to scholarly writing, especially if, as with Patterson, the academic whose name is his or her brand provides the idea and the outline and reviews the "product" carefully?)

 If one thinks, in keeping with a long liberal and Romantic tradition that has been explored elsewhere, that a key element of true literature, and perhaps of human life more generally, is "authenticity," then one might have problems with the Patterson enterprise. And that concern would seem to apply as well to the Marshall method, and to similar methods on the part of other judges and their clerks. I think this is a legitimate concern and worth taking seriously. But taking it seriously also requires considering that authenticity has become a fetish, that many cultural products and even individuals who are said to be, or sell themselves as, "authentic" or "unique" or "artisanal" are anything but, and that even as to more "authentic" people or things we can question the very notion of authenticity itself.

A similar question has to do with character and moral authority. I suggested in my first post that "we care about the personality or character of a judge's writing, about the human and intellectual force behind the canalized reasoning and official order, not so much for biographical as for vaguely aretaic reasons." In some cases, indeed, we care not only about the judge's virtues but about his or her biography and the authority and perspective it adds to his or her work as a judge. Marshall's profoundly important experiences and work surely brought moral authority to his judicial work, and that authority is often invoked in speaking about that work. Even apart from his decisions, he was famously said by his colleagues to have influenced them in his capacity as a "raconteur," sharing his experiences in a way that affected how they saw the law. To the extent that we think of his opinions themselves as deriving moral and intellectual force from those experiences and the moral authority they brought with them, should we reconsider this if the opinions were the product of a process, however carefully vetted? Of course this question is not limited to Marshall and his work. Other judges are said to have particular value and/or moral authority as judges because of their background and unique or representative or under-represented perspective, their work in various capacities before taking the bench, and so on. Depending on how firm or light their hand is on the tiller, should we question this?

We might add some practical questions to this inquiry. Does it matter who the clerks that form the "project team" are? If, say, a judge's moral authority is said to derive from having grown up with hardship and outside the usual cities, regions, and schools that produce so many elite lawyers and judges, of having scrabbled or dug ditches or attended night schools, does it matter if the judge hires a team that is composed exclusively of young people who all grew up in roughly the same privileged circumstances, received roughly the same elite educations, and share roughly the same narrow life experience, most of it distant from the judge's? Or should we care only that they be skilled mimics and ammanuenses for that jurist? And what part of the judicial office, exactly, counts for purposes of moral authority and authenticity in contributing to the law? Just the vote itself? The basic position? The actual reasoning? Not the reasoning, but just particular moments of eloquent rhetoric? The language and passion with which one delivers an opinion or dissent from the bench or offers an extrajudicial comment? How close or far from the judge him- or herself does any of this need to be to retain its moral authority and force, if indeed we do care about these things?

I would add a final observation about Tushnet's account of "personal stare decisis." It seems to me that it can be complicated in ways that are consistent with the kinds of questions that Dane asks and that I asked in my own post. Note that Tushnet speaks specifically and narrowly about personal stare decisis as the effort to ensure that the judge's opinions are consistent with the "judge's prior decisions." Again, I think this is common. But I suspect that for many or most clerks, depending on how much their judge either does his or her own writing or cares at all about that writing showing something of his or her own character, personality, language, style, and so on, the goal is not just doctrinal consistency but consistency of character and style. (A judge might, after all, prefer a more formal, impersonal, bureaucratic style. That's a stylistic choice too, but easier to copy without any insight into that judge and only indirectly revealing of the judge's personality.)

At some point, I would think, it can be easy for even a sincere and conscientious law clerk to stop channeling Judge X, and start portraying or enacting "Judge X"--a kind of fictionalized ideal of what they imagine that judge to be, not false but not entirely true, not quite the real thing but more of a biopic version based on real events. Judicial tributes and other monuments built by former law clerks suggest that this goes on long after they have gone on to other things. But it may start before they ever start their clerkship, if they wanted to clerk for the judge precisely because of who he or she ostensibly "is" and if they are inculcated into that iconic understanding of the judge by mentors and former clerks and by what they read about him or her. This slippage between wanting to represent the "real" judge and channeling or creating the iconic "judge" is made more likely by the very youth and inexperience of the law clerk and by an elite legal culture that is steeped in judicial hero-worship. And, as Sarah Barringer Gordon noted in her contribution to an excellent symposium on judicial biography, that tendency is also more likely if the judge is seen by the law clerk as a leading figure in an ongoing legal and political conflict in which the clerk is deeply invested, and in which it is useful both to construct your judge as a legend and, perhaps, to believe that legend. (The editor in The Man Who Shot Liberty Valance learns the truth, and understands that it is true, but tears up the story and prints the legend. Imagine going a step further and conditioning oneself to believe against the evidence that the legend is the truth. Surely we do this to ourselves all the time, especially when things like primaries and confirmation hearings roll around.) The shift from the real judge-X to "Judge X" may be strategic or unconscious, or strategic at first and then subject to a process of internalization and motivated reasoning. It may happen without the judge's contribution or with the judge's connivance, or may be a collateral but inevitable consequence of the judge hiring the kinds of people who do indeed see themselves as doing battle for the forces of good. In any event, my basic suggestion is that while Tushnet's description of "personal stare decisis" is more narrow and doctrinal, I suspect that many law clerks see "personal stare decisis" as involving more than that--as involving some attempt to channel the judge as a living personality--and that it easy to shift from this to "channeling" an idealized version of that judge.

My goal is to raise questions about this, not to criticize it or offer recommendations. It is relevant if we really do care about authenticity, or if we think that a judge's opinions are a reflection of and draw sustenance and authority from his or her authentic self. But we may not, or may question the firmness of the distinction between the judge as an actual person, the judge as an idealized or iconic presentation, and the judge's work as a "project." About the only conclusion I can draw is that all this is deeply imbricated in our strange American legal culture, its hero worship, its connection to political conflict, its smallness in elite circles, and its tendency to meld substance and personality.

Let me note that given his use of quotation marks around words like "judge" and his borrowing from Dane of the word "project," Tushnet is surely well aware of these issues--as is Dane. And Tushnet, wisely and as is his wont, has offered a far narrower intervention than mine--a genuine "supplemental note." As is my wont, I have taken someone else's footnote and built an essay on it. I prefer Tushnet's approach, and sane readers surely will as well. But I find the general issue interesting and provocative of many questions, and find that the seemingly little things are often the very things that reveal greater underlying questions about a whole enterprise and are immensely fun to tease out.               

Posted by Paul Horwitz on February 20, 2020 at 11:43 AM in Paul Horwitz | Permalink | Comments (5)

Tuesday, February 18, 2020

Perry Dane on Law Clerks and Jurisprudence

A tip of the hat to Perry Dane and his new article on SSRN, Law Clerks: A Jurisprudential Lens. It's a fine article and a timely one. (Actually, it is always a timely topic.) Here's the abstract:

American law clerks often draft opinions for their judges. Yet American legal culture is remarkably diffident about that simple fact. The role that law clerks play in drafting opinions is not a secret. Far from it. But it might qualify to be somewhere in the outer vicinity of being an “open secret.” And it continues to be controversial.

This essay explores a set of questions about opinion-writing by law clerks. The first major question is meta-normative. The goal is not to decide whether the practice of law clerks drafting opinions is proper or improper, but why it is occluded and controversial in the first place. Specifically, why is there so much more diffidence and doubt about the role of law clerks than about the work of aides in the other branches of government such as Presidential speechwriters and Congressional staff?

The second question is hermeneutic. Should the fact that judges might not always draft their own opinions lead us to read and interpret those opinions differently, especially when we draw conclusions about the “jurisprudence” of this or that judge or Justice or the way that legal doctrines often seem to be shaped by longstanding, dialectical, debates among judges or Justices?

The discussion of both questions tries to shed some light on broader constitutional and jurisprudential questions, including the distinctly metonymic relationship between the “President” and the rest of the Executive Branch and the complicated connections between judicial reasoning, the exercise of judicial authority, and the identity of the individual judge.

This essay was written as part of symposium marking the hundredth anniversary of the formal institution of Supreme Court law clerks.

It's a very enjoyable piece. I would flatter it more, but I am enjoined not to. My initial reaction to the piece was that one reason we might distinguish between practices in this area and practices in Congress and the executive branch, where laws are drafted by others and the President is rarely responsible for his own words, is that we care only about the legal force of their words--the president's executive order or Congress's legislative text--while in the case of judges we care about the force of their reasoning. I'm not sure Dane convinces me otherwise. But he does convince me that this is too trite a response. Perhaps more to the point would be that we care about the personality or character of a judge's writing, about the human and intellectual force behind the canalized reasoning and official order, not so much for biographical as for vaguely aretaic reasons. To the extent that presidents have become reliant on a corps of staff-writers, we should not so much shrug our shoulders about judges as acknowledge that character has become either less important or more fictionalized in the case of presidents, and that much of our myth-making about this or that great modern president and the great and eloquent character shown by his (so far) words is just that and not a fit activity for mature adults. Idolizing as a person a president for having delivered a great speech written by a stable of employees is a lot like (but worse than), to use an example Dane also discusses, being utterly convinced that the "author" of some ghost-written memoir really is that pal you always wanted to have, based on his or her (false) written voice.   

Perhaps that points to another common trait shared by all three branches, one that Dane at least touches on in the paper: that the workload of each branch is such that "increased delegation...is simply unavoidable." In short, each branch (judiciary included) has become, ever more so, a fully bureaucratic enterprise, in which personality, character, and virtue are either less essential or, at a minimum, less important and less visibly a key element. (At least when the branch functions properly; I grant that some presidents and perhaps some judges may present a challenge to this observation.) I think there is substantial truth to this and substantial necessity, but that taking it on board means jettisoning the tendency to treat judges as intellectual and aretaic giants. They may be just that, but they needn't be. If we saw them as corporate offices engaged in the bureaucratic exercise of "justice," we would hardly need the phony mystery, omerta, and "open secret" tendencies--the "diffidence"--that Dane describes well about law clerks and their work. (I very much enjoyed his brief discussion of "open secrets," which again seems quite timely.) I have a touch of suspicion that there are reasons, many not entirely attractive or worthy, why many might prefer the open secret to what can be a more prosaic and less romantic daily reality. Mythmaking around judges, judging, and clerkships is of benefit to more than just the judiciary itself.

A final, intriguing question is raised as something of an aside in Dane's exploration. Dane raises a question about "whether judicial opinions are more akin to political and corporate speeches, on the one hand, or to scholarly articles, on the other." In setting up this question, he offers the conventional wisdom about "scholarly ghostwriting:" "It happens. It is almost certainly wrong. And scholars themselves have articulated specific sound reasons for concluding that it is unethical and pernicious." Certainly I think so, but Dane's own reasoning, and the kinds of arguments he cites about judges, now have me questioning that conclusion. Granted that this is so if the scholar steals the work of an assistant, or publishes an assistant's work without attribution and without doing any of the research or thought involved in the work. But what is radically different about a judge checking, editing and altering, and then publishing under her own name a judicial opinion authored, after some instruction about what the opinion should say, by an law clerk--and a scholar doing the same with a piece of work performed after instructions have been issued and with some end-stage supervision and editing? One difference is that advancement for the assistant in the latter case, at least if we're talking about grad students, depends on being able to claim authorship or co-authorship and build a body of work. But I'm not sure why the reputational and career incentives should drive our over-all conclusions about the propriety of the practice, or about which professional reward structure might be in need of altering. We could just as easily not insist on a pile of publications by a junior academic, but instead look at the body of work to which they "contributed"--or insist conversely that judges ought to give some public credit to the law clerks involved in each opinion.

All in all, a fun piece. I wish I had been at that symposium! I hope that a sufficient number of skunks were invited to the garden party, so to speak.       

Posted by Paul Horwitz on February 18, 2020 at 04:43 PM in Paul Horwitz | Permalink | Comments (0)

Friday, February 14, 2020

Transitions, and Some Reflections on Clerking

I learned very recently that the judge for whom I clerked, Ed Carnes, currently the Chief Judge for the U.S. Court of Appeals for the Eleventh Circuit, has announced his intention to take senior status. Given that when I clerked for him he was younger than I am now, this ages me more than a little. I wish him well. That news offers a nice hook to re-up a link or two to an article I published in the Alabama Law Review on the occasion of his 25th anniversary as a judge.  (The other articles in that tribute can be found here.) Although I worried about this piece some at the time, it was a pleasure to write and readers have seemed to enjoy it, if only out of shock and gratitude that I wrote something relatively short. I worried because the piece was a little unusual, especially within the genre of judicial tributes. In part, although I certainly spoke about the judge and about my clerkship experience, the tribute was also a platform or opportunity to offer some explorations of the unique, not to say downright odd and not necessarily healthy, place that the judicial clerkship holds in American legal culture, including elite and academic legal culture. I had talked about these things on this blog, but welcomed the opportunity to say them more fully and formally, as it were.

The first point I explore in the piece is to question what seems to me a widespread culture of lifelong hero-worship of one's judge, something that I think has to do not only with the age at which one clerks and the fineness of one's judge, but with various odd features of our legal (and perhaps especially elite and academic legal) culture. Less odd, but equally important, in my view, is the connection between clerking, one's judge's reputation, one's professional network, and one's own success and reputation--in short, the particular kind of careerism that is practiced in small and select circles. Of course not every clerk thinks about things in these terms, but our actions and incentives are not always perfectly transparent to us. And surely not every former clerk thinks like this forever. Surely many "grow up" and out of it, as it were. But law reviews do not devote issues to judicial tributes of that sort--more's the pity--and by and large our culture gives primacy to the hero-worship, clerk-for-life model. In the piece, I suggest that William Simon was right when he wrote in 1986 that this culture tends to "prolong the style of adolescence to which privileged Americans tend to become compulsively habituated," and that this prolonged adolescence retards true independence and maturity.

The other set of observations I offer in the piece has to do with the nature of a clerkship, and particularly the tendency in law reviews and other such elite watering-holes to hold up as an exemplar what I call a "familial" model of a judicial clerkship, rather than a "just a job" model. The clerkships that are said to be most desirable, or at least the picture that people tend to paint when they are rhapsodizing publicly about their judge and their clerkship, is one of closeness and intimacy, in which the chambers is a "family." It is no insult to Judge Carnes--quite the contrary, it is a high compliment--that I never felt like I was one of his family. He already had one of those. The clerkship was a job--a very, very good job, but still just a job. The relationship was simply a professional one. Of course, a good professional relationship, with one's boss and one's colleagues, at its best can be a friendly and a fun one, and that's how I felt about my own clerkship. But it's not an intimate one. There is a difference between asking and caring about one's colleagues or colleagues' children, and thinking of them as one's own children or grandchildren. Although I may initially have been disappointed that my own clerkship was not in the familial mold, I write in the piece that ultimately I found the "just a job" model "a virtue and a valuable learning experience of its own sort," one that was conducive to "independence, perspective, and realism." I might add that I think it was healthier all around. The most unpleasant work experience I ever had was in a small workplace where the employers encouraged us to think of them as "family"--something that was lovely right up until the moment one found that "family"-type employers can also be just as emotional, harsh, and personal in their words and actions as real-life unhappy families. It is a virtue of professionalism and of a workplace that it is not a family and cannot be mistaken for one. A family is a place of intimacy, and intimacy by its nature lacks boundaries. A workplace lacks intimacy, and has boundaries and rules. In the long run, although I could never boast, as the culture seemed to expect of me, that my clerkship involved joining a lifelong "family," I concluded that I was much better off for being able to say that it was a very good job, with a very nice guy and a great bunch of colleagues (who are indeed my friends), but distinctly just a job. That, too, can be cause for due gratitude, and I am indeed duly grateful to Judge Carnes.    

  

   

Posted by Paul Horwitz on February 14, 2020 at 03:15 PM in Paul Horwitz | Permalink | Comments (0)

Wednesday, February 12, 2020

A Commendable Shande: Bennardo on Legal Writing

Kevin Bennardo, a clinical associate professor and legal writing teacher at UNC, has a short and interesting piece recently posted on SSRN titled "Legal Writing's Harmful Psyche." He argues that legal writing professors "perceive themselves as victims of unfair treatment," and then "explores the consequences of that self-perception." In particular, he argues that this self-perception "has led to a norm of protectionism," manifesting as a sense of the group as a "family" with "a powerful sense of solidarity," that "stands as a barrier to meaningful growth within the discipline." He argues that the atmosphere of familial mutual support and loyalty inhibits internal criticism, "to avoid the risk of providing fodder that would validate the community's lesser status within legal academia" and to avoid "tear[ing] down other members of the group," and that this is wrong. "An academic discipline should not be a family in the mythical 'family-before-duty sense of the word. An overly forgiving nature may be a positive attribute in some settings, but not in the context of scholarly discourse....Legal writing shouldn't be treated as a safe space where all ideas are validated. The wheat can't be recognized as wheat unless we also [openly] recognize the chaff as chaff" by criticizing the work of others within the discipline of legal writing and legal writing scholarship.

I somehow suspect that the paper will not be well-received in the legal writing community, although I may of course be mistaken. Note that Bennardo does not challenge the proposition that legal writing teachers are treated unfairly. (Neither does this post.) I am not a member of the legal writing community, so I can't speak to whether his description of this purported self-perception is open to empirical challenge or not. Nor can I speak to whether he is right that legal writing conferences are subject to a surfeit of back-patting and omerta and a deficit of serious internal criticism, which I assume will also be a target of factual disagreement.

It does seem to me that the culture of perhaps overweening mutual support, habitual compliments, and unwillingness to engage in strong direct criticism of the work of others, especially within one's own community and especially within a community that shares many views, beliefs, goals, or premises, is hardly limited to legal writing, but has had much broader purchase throughout the academic community. I suspect that the reasons for this are varied and that there are cultural, generational, economic, and other factors. Thus, even those who agree with Bennardo's premises or are willing to accept them arguendo may still champion a good deal more "mutual support," "solidarity," and even "protectionism" (all quoting Bennardo) than he would. How much of this atmosphere is enough, how much (or what sort) is too much and ultimately counter-productive, and how much becomes less a matter of genuine mutual support and more a matter first of etiquette and ultimately of glib custom--Must one really preface virtually every response with the phrase "characteristically thoughtful?" Does it not, like "with all respect," mean less the more often and reflexively it is used? Personally, while I favor etiquette and sympathetic readings of others' statements and writing--and not just of one's academic interlocutors, but also of the third parties who are so routinely caricatured and criticized in most pieces of writing about the world at large--I find the phrase and others like it mostly unnecessary and in need of some pruning; one can be polite while still being direct, and I generally don't bother criticizing academic writing that I don't respect and/or find worthy of serious consideration, no matter how much I disagree with it, so the basic compliment can be assumed--is a worthy subject of open discussion and debate.

In any event, although I acknowledge that there is room for disagreement about Bennardo's premises, I found the piece refreshingly different, independent, and provocative, and relevant to broader discussions of the duties and norms that do, or should, apply within any academic community.  

      

Posted by Paul Horwitz on February 12, 2020 at 12:44 PM in Paul Horwitz | Permalink | Comments (0)

Thursday, February 06, 2020

Bad News: The New York Times is Doing Great

I have had a post simmering on the back burner for a while on what's wrong with the NYT's 1619 Project. (Short answer: 1) Journalism is the "first rough draft of history," it's not history, and spending time on things outside the expertise of the profession, especially when so many areas--investigative reporting, foreign bureaus, serious local coverage--need more resources and are within its expertise is a poor choice. That's true regardless of one's views of the substantive claims of the Project. 2) It's the capitalism, stupid. Whatever the intentions of individual actors, institutionally the Project represents another effort, especially through its school-curriculum salesmanship, to find new markets in an environment that is not kind to the old journalism business model. Again regardless of the substance, or of one's sympathy for the plight of newspapers, this is letting the tail wag the god.) It's taken time because I'd like to do it right. In the meantime, motivated by my same love of journalism as the first "institution" I was a part of, here's another Times-related story. It's painted as mostly good if not great news, but it ain't necessarily so.

The Times reports today that it has "reached one major business goal and got more than halfway toward another....in 2019 it passed $800 million in annual digital revenue for the first time, an objective it had pledged to meet by the end of 2020. Most of that $800.8 million — more than $420 million of it — came from news subscribers. In the fourth-quarter earnings report that came out on Thursday, the company said its total subscription figure was over five million, a high. The company’s stated goal is to reach 10 million by 2025." It continues: "The company added more than one million net digital subscriptions last year — the most new subscriptions annually in the newspaper’s history. In a statement, Mark Thompson, the Times Company president and chief executive, called 2019 'a record-setting year for The New York Times’s digital subscription business, the best since the company launched digital subscriptions almost nine years ago.'" The story then notes that "Advertising was a weak spot, with print and digital ad revenue each declining slightly more than 10 percent in the final quarter of 2019, compared with the year before....The company said it expected to continue generating revenue more from readers than from the advertisers that were once integral to the newspaper business."

Sounds good! But it should be cause for worry as much as anything else. Leaving aside straight partisan denunciations of the Times (but not more measured arguments that the Times's style has become more partisan and less connected to its traditional model of mid-century professionalism), relying on subscribers rather than advertising may be a necessity, but it's not necessarily a virtue. A newspaper that relies entirely on its subscribers will rely on keeping them happy, including parroting their views and hiring staff who are likely to do the same thing. That is surely one reason for the change in tone in the paper and the style of its reporting. It also means spending time and editorial resources on the things those subscribers want rather than the things they need, something that newspapers could do more easily when there was an independent stream of advertising, including classified advertising. When one is inclined to praise the seriousness of the Times and the intelligence of its readers, it's always a good idea to take a look at its "Most Popular" list and "Editors' Picks." Today, they include such instructive and indicative pieces as "Coming Home to a New Upper West Side. Which Apartment Did She Pick?" and "7 Podcasts for a Healthier Mind and Body." The online page of the Times manages to include news stories, but also pushes forward a host of luxury and comfort pieces (although many of the news stories and virtually all the opinion pieces are, in essence, comfort pieces for its readers): "'Dad Naps' for Everyone," "Dunkaroos Are Back," and a personal favorite from just the other day: a lavish, impassioned, absurd defense of Goop. As it is written in Scripture, "Jesus wept."

Of course the Times has always embodied and represented bourgeois sentiment and suited those needs and interests (mine included, to be sure). But it is a lot harder to do anything other than that when you have no cushion from reader satisfaction. If the Times today is not anywhere close to the paper it ought to be--and that is my view, but only because it's true--it is not because it is less popular, but because it has no choice other than to run after popularity, with a particular readership, like a dog chasing a car. (Its other option--diversifying into things in which it has no expertise and which I think tend to harm rather than help its core mission, like TV shows, podcasts, and school curriculum tie-ins--is, as I suggested above, a prominent reason for the 1619 Project, and an unfortunate one.)

In the course of drafting my 1619 post, I came across a recent story boasting that the newsroom staff is larger than it has ever been in the paper's history, at some 1,600 staffers. That seems at first blush to counter my suggestion that the paper is pouring its resources into side projects and intellectual throw-pillows instead of areas of reporting we need much more. I would feel better about that statistic if so large a proportion of its staff did not seem devoted to offering recaps of late-night TV and other television shows and features on "What to Do About an Overtalker," and if it had not already gotten bought out so many of its more experienced editors and writers. The dubious level of experience and quality of its online editors, headline writers, and stories is evident to any reader.

I'm glad the Times is not dying. There are few big newspapers in the United States and few good ones, and such institutions do something different from the alternatives that have arisen and which do not serve the same important functions. But the incentives and necessities that have been a part of its growth, and which inevitably become the subject of sincere but reverse-engineered justifications on the part of its staff and leaders, are going to change it, and are more likely to make it big than good.        

   

Posted by Paul Horwitz on February 6, 2020 at 01:48 PM in Paul Horwitz | Permalink | Comments (0)

Friday, January 17, 2020

*Does* Paul, Weiss "Need" Harvard Law?

No doubt there are many things one could say about this Harvard Law School student protest against Paul, Weiss designed to urge it to drop ExxonMobil as a client. Many of those observations would depend on one's substantive and political views and would be too obvious to need saying and convincing only to one's allies, so let's skip it. (Although one want to might read the actual opinion dismissing claims against that company and ask whether the merits of some of that litigation are that great. State attorneys general have been known from time to time to file lawsuits that have more to do with political optics and the questionable use of state power than with an interest in actually seeking a remedy.) And the first thing I would say is that of course the students are free to urge whatever they want, whether they represent one or one hundred percent of the student body. But I would like to ask two questions.

The first is to question the supposition put forward by a HLS law student (who I can hardly blame either for framing things this way or believing the statement, given our culture): that the students recruited by big firms at these or any other elite law school are "the future lawyers they need to stay on top of their field." I don't doubt their intelligence: in my brief time studying and teaching at such schools, I really did find the students highly smart, talented, and hard-working, and this was true not just of the best students but of a large percentage of them. The most relevant comparison between law school student bodies is with the "middle" of the class, and the middle at these elite schools is very impressive. But I have found that the same thing is true, at a minimum, of the top students at every law school I have taught at, no matter where it is on the US News rankings. Students choose to go to different schools for many reasons. Some have family obligations or work obligations, or financial limitations. Some have extraordinary talents but, perhaps because they are first-generation students who don't come from professional-managerial-elite families, lack social capital of a certain kind. They haven't been told about the advantages that accrue disproportionately to going to an elite school, or that employers economize on search costs by sticking with a few conventional schools, or that judges do the same in selecting the clerks who will end up commanding job-seeking advantages. But they bring other advantages that some of the students at top schools may not have. They are hungry and ambitious. They don't take such job opportunities for granted. They don't take such salaries for granted, and think working their asses off in return is not an injustice or inhumanity but a reasonable return and an enormous opportunity. They may be less likely to leave after three or four years and thus less likely to take for granted the enormous early investment made in them by the firms. They may get their sense of moral and social identity and satisfaction elsewhere than their jobs and job status--say, in working through a church or local community or in many other places.   

When I worked at one of the big firms and was involved in summer associate hiring, at least some colleagues (not all, of course) wouldn't even deign to look at an applicant who didn't come from one of a very few schools. I'm not sure they had a reason for this, other than convention and a narrow band of life experience limited to those schools. But despite the added search costs, and keeping in mind that many students at top schools surely view things differently than the negative caricature of entitlement I've offered, it has long seemed to me that top law firms looking not just for talented students but also for a good long-term investment in the future of their firm would be better off picking off the top students at the schools they most often seem to ignore. They might have to invest more in certain kinds of training. But they would still get terrific raw material, and might find that these hires would have more commitment, gratitude, ambition, and seriousness about the work than some of their conventional hires. A typical rejoinder is that there is a benefit to these firms in having students from the top schools. It reassures clients that they are getting the best of the bet and makes these firms look as elite as their competitor firms. Such hires are thus safe picks. But that's just one factor to consider, and it must be balanced against the actual benefits they might get from going against the grain. A firm that eschewed the safe and comfortable path and took a flier on top students at these non-"top" schools might find that such a strategy would enable it to do great instead of just well. In any event, and without meaning any ill will to the students at the usual top schools, it is far from clear to me that these are the students these firms "need." This is common rhetoric and a common assumption, but it shouldn't be taken for granted.

My second question is: What, exactly, is moral seriousness? The position of these students has a high cosmetic appearance of ostensible moral seriousness. But it might also be seen as an example of the kinds of phenomena that have been discussed in connection with the meritocracy: of actual or self-described progressives who are "under meritocracy’s thumb . . . captives who embrace their captor, through a sort of ideological Stockholm syndrome,” and whose complaints and prescriptions tend to demand certain changes (especially regarding horizontal equality) while leaving other perquisites and prerogatives (especially regarding questions of vertical equality and social class) blissfully under-examined and undisturbed. It may be nice to dream of and work for a world in which all owners of BMWs or Teslas, or residents of Georgetown or Chevy Chase or Palo Alto, represent a remarkably diverse group of people. But it seems a little incomplete, and rather conveniently so. I have no objection as such to worrying about the representation of a particular client or about arbitration agreements for summer associates. But if that is enough to buy one off, while leaving a hundred other corporate clients in place and unquestioned and not, say, demanding that secretaries and mailroom workers get paid as well as or better than summer associates, then it seems to me that this form of moral seriousness might have as much or more to do with one's desire to have one's luxurious cake, and feel (or look) virtuous while eating it, than with a more genuine and thoroughgoing form of moral seriousness.                   

Posted by Paul Horwitz on January 17, 2020 at 10:05 AM in Paul Horwitz | Permalink | Comments (0)

Saturday, January 11, 2020

James Pogue on "The Decline of Nonfiction in the IP Era"

I quite enjoyed this piece from The Baffler. It may be overstated and over-amped, but that is par for the course for The Baffler and most magazine journalism; it is still enjoyable even if it should be read, like everything else, skeptically. The contemporary tendency, including for legal academics, is to celebrate the multi-platform world in a way that echoes the now purportedly dated and much-mocked earlier burst of enthusiasm about "synergy." Seeing the parallel may perhaps lead us to mock those days a little less, to see some of the undue utopianism and lack of self-awareness of the modern tendency more clearly, and to see more clearly the value of institutions (in the Mary Douglas sense), the downsides of blurring or eliminating them, and the degree to which our current enthusiasms are more consumerism than connoisseurship.

Pogue's piece does not argue that nonfiction is dying or dead. If anything, it is thriving in one sense, as the profusion of narrative podcasts, among other things, suggests. (Although I'm not a fan of those podcasts, and think they are highly mannered--God save me from another post-This American-Life voice, with its uptalk and other vocal affectations, male or female, or another somber-music dramatic pause--and mostly trivial, and are bringing back practices that we rightly came to think of as ethically dubious in journalism.) Rather, he argues that "[w]e are now in the mature stage of a book-to-film boom that is quietly transforming how Americans read and tell stories—and not for the better." And not just books, of course, but magazine articles, podcasts, and other forms of nonfiction. 

In discussing how the narrative-industrial complex affects nonfiction, he writes:

[T]he book-to-film complex is bolstered by two imperatives that now govern our nonfiction almost without exception: foreground story as an ultimate good, ahead of deep personal insight, literary style, investigative reporting, or almost any other consideration that goes into the shaping of written work; and do not question too closely the aristocracy of tech and capital that looms over us, the same people who subsidize the system that produces America’s writing....The power of book-to-film in American writing is in how it sits at the edge of the consciousness of every writer, editor, and podcast producer, a dark energy of the entertainment market that drives wealth and reward. You just have to tell a gripping story and leave the powers-that-be unnamed.

And let me quote some more:

This is more or less how most editors I know describe what they want these days. One—clearly hoping to land stories that would get bought for film since he was hardly offering enough money to make writing a feature for him worth it otherwise—recently sent me a call asking for “ripping yarns, stories of true crime, of loves lost and won. Rivalries in sports, tech, and entertainment. Chronicles of dreams realized and broken. We want to take readers on spell-binding adventures, introduce them to powerful jerks they don’t know (or don’t know enough about), weirdos, eccentrics, and folks in search of redemption.”

This email almost made me throw my laptop off my balcony. We all know this kind of storytelling, even if we don’t exactly have a name for it. It is your non-friend’s favorite true-crime podcast. It is the magazine story that the documentary you just watched was based on, and it is the novel that was based on the real event that the even-better magazine piece described and that will soon be a television show. It is the books that now dominate the bestseller lists by writers like [David] Grann or Patrick Radden Keefe or Gillian Flynn, which have all been pre-engineered to read like movie thrillers long before anyone even sat down to start on the script.

We think less about what this kind of writing isn’t. These editors asking you to rip the yarn never talk about politics beyond a possible desultory nod toward wanting stories from writers of “diverse backgrounds.” They do not talk about voice or literary style. They do not ask for excavations of an inner life or the forces of history or any of the things that once would have made a work of writing lasting. A writer may find clever ways to worm these things in, but in the end they are ancillary goods. The desire is always for work that puts narrative ahead of all other considerations, and this is the kind of writing that now dominates our literature: it describes the world without having a worldview. Which is a workable definition of the kind of writing most easily converted into IP....

At least some of my peers are now handing over their working lives to producing cynical content rigged to fit the desires of streaming services, which, when you think about it, is a small tragedy for a world as fucked as ours. Most of the good writers are not. But how could you not at least think about these imperatives when a strange new amalgam of Hollywood and tech offers the greatest rewards for a hit second novel and when magazines pay below rates that were standard three decades ago?...

We have a perfectly good word for the kind of writing and reporting this all encourages: trash. Trash is how we once thought of work designed above all to fit commercial demands and generic narrative forms. The imperative to produce it isn’t going away soon. But I don’t think we have to accept it. 

Very enjoyable. 

  

Posted by Paul Horwitz on January 11, 2020 at 11:07 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, January 08, 2020

The Home-Institution Benefits of Visiting Stints

I enjoyed Josh Blackman's post on look-see visits. I have done only one such visit, so I am no expert. I only wanted to add a small point to the discussion.

Josh writes, in response to some of his commenters, "It is fairly common for people to travel a lot within their current jobs, often for weeks or months at a time. Such roles, however difficult they may be, are designed to create opportunities for upward mobility within an organization. Look-see visits are different. The professor is not traveling to promote opportunities within the home institution; rather, the professor is leaving the home institution to try to find opportunities elsewhere. It is difficult to think of any non-academic jobs, in which employers allow employees to embark on a 6 month interview at a different firm. Moreover, at the end of this 6-month interview, there is a very low chance of success for promotion; at that juncture, the professor simply returns to the home institution."

I understand the point, of course. But I think it would be a mistake to view things entirely in this way. (Assuming it to be a mistake, I'm not saying it's Josh's own view; but I do think it is probably one that is made by others, both by visitors and by home and visiting institutions.) A visit does benefit the visiting professor's home institution--and the professor qua professor (that is, in his or her teaching, scholarship, and institutional service), even if no move results. Owing to a fortuitous lack of greatness and/or stability, I had the pleasure of teaching at several law schools before landing at my home school, and one post-lateral visit elsewhere. It is tremendously useful to see how other professors and institutions do things; to learn something about the different capacities of students at different institutions and the ways in which different law schools succeed or fail at exercising and enlarging those capacities; to see what a different curricular structure looks like in practice; to see what faculty governance (or dysfunction) looks like in different places; and so on. Law school travel, in short, broadens the mind. Some people start and end their careers at the same institution; the advantages in institutional memory and loyalty are real, but so is the possibility of being cocooned or losing a sense of alternative ways of doing things. Some of the things I learned from visiting or teaching at other institutions have affected both my own teaching here at Alabama and my sense of what things my institution as a whole could and perhaps should do differently. (The University of Alabama, among other things, is very poor on freedom of speech and academic freedom, and could learn a lot from some of the things that the faculty senate at Emory instituted in the wake of some speech controversies there.)

Not every visit results in an offer, or does so in the short run, so the visitor can indeed bring back what he or she has learned and make use of it. Whether they do so now or not, home institutions should welcome this and make some effort to "debrief" the returning colleague. I would add that we could get some of those benefits from podium visits, and students in individual classes may in fact get some of them; but even more than look-see visitors (who often find a less welcoming environment than they ought to), podium visitors often don't get much integrated into the life of the school they're visiting at all. And I would add that the fact that a look-see visit can confer benefits of this sort does not mean that look-see visits make much sense. I'm not sure they do. Josh quotes Mike Dorf on several other possible visiting formats, all of which (if undertaken in a conscious fashion) would confer the same mutual benefits. The idea of an "enrichment" visit, in particular, makes some sense. So do short-course programs and intersessions, which probably convey less benefit but also are less burdensome for those with family or other obligations.       

Posted by Paul Horwitz on January 8, 2020 at 02:13 PM in Paul Horwitz | Permalink | Comments (0)

Friday, January 03, 2020

Double Aspect Blog on Canadian Supreme Court Dissents

In a post last year I called attention to the terrific Canadian public law blog Double Aspect, which had a great, very un-Canadian end-of-year series of posts in which the hosts and guests of the blog discussed their least favorite Canadian Supreme Court decisions. This year, Double Aspect has focused on another great subject: ten days worth of host-and-guest contributions discussing their favorite dissenting opinions in the Canadian Supreme Court. It's another wonderful read and, in its focus on dissents rather than majority opinions, a useful corrective to more cheery and approving takes on Canadian constitutional law by constitutional comparativists. I am pleased that a number of the writers picked Justiice LaForest's dissent in the Provincial Judges Reference case, Justice McLachlin's dissent in Keegstra, Justice Moldaver's dissent in the Supreme Court Act Reference case, and the joint dissent of Justices Binnie and LeBel in Chaoulli. Worthy choices all, if only for sounding a much-needed note of caution about judicial capacity and wisdom. A number of the writers also focus on religious liberty cases. I recommend the posts, for those interested in judicial dissents in general as well as those who are interested in learning more, and from a different perspective, about Canadian constitutional law. The posts run from the most recent down and are currently at the top of the blog.    

Posted by Paul Horwitz on January 3, 2020 at 01:18 PM in Paul Horwitz | Permalink | Comments (0)

Saturday, December 21, 2019

Some Questions About the Harvard Law Review and its Scholarly Treatment of Prison Issues

This is a long post. I say so below, in the body of the post, but want to emphasize it here at the start in a kind of preface. I wanted to write what is ultimately a questioning and critical post in a way that was fair, and that aimed at the questions that inspired it without being dismissive of the work I'm questioning. I think the questions I raise are valid and important ones, concerning the nature of legal scholarship and the state of what is supposed to be one of the leading journals of legal scholarship, the Harvard Law Review. They deserve to be aired fully, both to put it on the record, so to speak, and so that those who care about these things can confront them properly and in an informed fashion. I'm sure there are many ways to write the same post more briefly. Some of them would involve stinting on details that I think matter, however, and most of them would involve spending more time than I have. As it is, medical issues delayed the publication of this post, which I started writing in November and ought to have published a few weeks ago. That's a benefit of sorts, since it gave me more time to see whether my concerns would be addressed in a timely fashion in the Harvard Law Review Forum. I can't say I apologize for the length, but I wouldn't object if many readers chose to give the post a miss. Where concerns about scholarship and our discipline are concerned, I think it's important to put things on the record, even if that record is too lengthy.   

For those who are still interested, bear with me. For what it's worth, my main area of interest and reason for writing this--not to dismiss the articles I discuss here, but to ask about how they relate to the basic scholarly mission of the Harvard Law Review and what is largely missing so far from its work on the topic of "prison abolition"--can be found in the final section of the post.  

* * * 

This year's Supreme Court issue of the Harvard Law Review is out. I always enjoy it, both in itself and as an object of professional and institutional inquiry. The Foreword this year, by University of Pennsylvania professor Dorothy Roberts, is titled Abolition Constitutionalism. Its take-off point is "prison abolition." In Professor Roberts's words and those of the writers she quotes, "Many individuals have...concluded that the answer to persistent injustice in criminal law enforcement is not reform; it is prison abolition." The movement wants to "'make "abolition" a practical theory of change.'" Roberts's Foreword seeks to "make the case for an abolition constitutionalism that attends to the theorizing of prison abolitionists...[and] to examine prison abolitionist theory and organizing as it relates to the U.S. Constitution in particular." The ultimate goal is to "construct a new abolition constitutionalism on the path to building a society without prisons."

This is the second occasion in a very short period of time on which the Harvard Law Review has devoted substantial space and resources to this topic. An unusual "Developments in the Law" issue of the HLR in April 2019 also focused on prison abolition. I say "unusual" because, at least as long as I can remember as a reader of the HLR, the Developments issue has been student-written. This Developments issue was, apart from an introduction, written instead by two professors, an activist who is also an adjunct professor, and a Miami Law student who served a prison sentence and now also works for restoring voting rights to former prisoners. I found the departure from the norm noteworthy as such, and--or "but"--admired the inclusion of a number of individuals, especially a non-"top ten" law student, who do not fit the usual pattern of iron-cage credentialism that generally characterizes the leading law journals. But it was unusual. I have more to say about Roberts's extensive (about 120 pages) Foreword below, but I'll just say for now that I read it and admire various things about it, some of which I identify and single out for praise.   

On the one hand, the focus on the single topic of "prison abolition" in two nearly-contemporaneous issues, surely involving at least some overlap of editors, could be taken as indicating that the HLR, or its current staff, take the subject very seriously indeed. And one might say by extension that its staff takes very seriously the "'concrete reforms" (to quote the introduction to the Developments issue) that might be made with respect to a congeries of issues: the number of prisoners in the United States, the number of African-American prisoners in particular, capital punishment, bail, court fees and fines, the effect of criminal records, and police violence, to name a few identified in the same introduction. On the other, I can't help but feel that the Foreword and the Developments issue taken together present some intellectual, political, and institutional questions that raise genuine questions about the journal's ultimate seriousness about these issues, about reform with respect to these topics, and about its willingness to engage in serious intellectual inquiry about them and about "prison abolition" as a movement and a theory.

Of course this is the usual long post, for a couple of reasons other than the usual didn't-have-enough-time-to-write-a-short-post one: 1) I want to give due credit to the Foreword and its author and to the review and its editors for positive or creditable aspects of these works while still raising some questions and potential criticisms, and doing both requires a little more nuance and space. That's especially so because it seems to me that we live in a cultural and intellectual moment in which sincere caveats or notes that in a sound academic environment ought not be needed at all--such as that criticism does not mean one is attacking or disagrees completely with an article or a scholar or a viewpoint--are no longer assumed or given sufficient credence. 2) I'm interested in raising questions about how an intellectually serious journal would address the issue or movement or theory of prison abolition, not in taking a position on prison abolitionism itself. That again requires a little nuance. My goal is ultimately to ask what one would expect of a journal that takes these issues seriously and is a serious intellectual and academic enterprise as opposed to something else entirely, not to take on the substantive topic. But I think the questions I ask are legitimate, and could or even should be voiced more vigorously, not least by Harvard's own faculty and administration.   

* * *

I've been a less active scholar in recent years due to some medical issues (and my own flaws), so I apologize for citing work done long ago. Would that I had a more recent book of my own to point to as an example! But when I wrote a pair of books an age or two ago, one about "constitutional agnosticism" and one about "First Amendment institutions," one essential duty was to define those terms with as much clarity as possible. I'm not sure I fully succeeded in either case, although I tried, and critics rightly pointed out the lack. Had I turned in the manuscripts without at least making a serious effort to define my main concept in each book, however, I doubt they would have passed review by the presses or by their internal reviewers--also rightly so. Had I refused to define them on the grounds that it was all about, to quote the legal argument offered in the film The Castle, "the vibe of the thing," the refusal would rightly not have passed muster, or if it had would have been the subject of derisive comment by reviewers. Of course definitions are often imperfect, in themselves or in what they include or exclude. But they're also an essential part of scholarship. Whole fields of scholarship are built around attempting to define the nearly undefinable, and often the fact that an idea cannot be clearly defined is taken by scholars and others as a good reason to harbor doubts about it.  

Early on, Roberts writes, in a passage worth quoting at length, "It is hard to pin down what prison abolition means. Activists engaged in the movement have resisted 'closed definitions of prison abolitionism' and have instead suggested a variety of terms to capture what prison abolitionists think and do--abolition is 'a form of consciousness,' 'a theory of change,' 'a long-term political vision,' and 'a spiritual journey.' Professor Dylan Rodriquez, a founding member of Critical Resistance, lyrically defines abolition as 'a practice, an analytical method, a present-tense visioning, an infrastructure in the making, a creative project, a performance, a counterwar, an ideological struggle, a pedagogy and curriculum, an alleged impossibility that is furtively present.'"

One may sympathize with Professor Roberts insofar as, as a scholarly work, her Foreword is tasked with offering a workable definition of a broad ideological and activist project whose own chief writers seem, on this description, to have a sweeping and/or vague vision of what it actually is. She had much more space, it's true, but she certainly goes further in defining it than the introduction to the Developments issue manages to do. And Roberts does, in a sense, at least narrow her focus, by identifying "three central tenets that are common to formulations of abolitionist philosophy." She devotes considerable space to an interesting and admirable effort to describe those tenets. Still, despite her devotion of almost 40 pages to a "summary of prison abolition theory and . . . its foundational tenets," I found myself grasping after a clearer definition. 

This is not a criticism of Roberts's effort. (If criticism were apt on this point, it would be better coming from someone with a surer grounding in this literature and in criminal law and justice scholarship than I possess.) Perhaps the problem is inherent in the topic--or the movement. But, between a 120-page Foreword and a special issue, and with due regard to what a serious scholarly journal is obliged to do if it is to be a serious scholarly journal, one might expect a journal to find meaningful space for a sustained critical examination of what the inability to clearly define a movement that is at least in part a scholarly and intellectual one means for that movement, both intellectually and practically. It is an obvious line of concern and criticism, and surely a sound and fertile basis for scholarly discussion. Given the many pages the HLR has devoted to prison abolitionism in the past year, the journal seems to fall short on this point. Nor do I think it's sufficient to say that no definition is possible because prison abolitionism, as at least some of its proponents define it, is everything from a "spiritual journey" to an "ideological struggle." Scholars who deal with spiritual or ideological movements begin by defining those movements. Where they escape or defy definition, scholars discuss that fact, and raise the obvious questions and problems that result from a movement that lacks clarity--problems as much for those inside it as for those trying to understand it from the outside.

From my perspective, the most interesting contribution of the Foreword, other than providing a substantial introduction to the concept and literature of prison abolition, is Roberts's discussion of two possible paths in understanding prison abolition in relation to American constitutionalism. (There is also an extensive discussion of the Supreme Court's discussion in Flowers v. Mississippi. While I have nothing to say about it, it's worth lauding, given the number of Forewords in the past few decades that barely glance at the Supreme Court Term that is their reason for existence, or that treat recent decisions at a high level of abstraction without delving into any particular cases.) As she puts it in her conclusion, there is a "tension between two approaches to abolition constitutionalism. On the one hand, there is good reason to renounce the Constitution because constitutional law has been critical to upholding the interests of the racial capitalist regime while advancing legal theories that justify its inhumanity. On the other hand, there is utility in demanding that the Reconstruction Constitution live up to the liberation ideals fought for by abolitionists, revolutionaries, and generations of ordinary black people." According to her account, "some prison abolitionists eschew any reliance on the Reconstruction Constitution" and reject the Constitution more generally; earlier, she writes that one path of abolitionism "is resigned to the futility of employing U.S. constitutional law to dismantle the prison industrial complex and other aspects of the carceral state." A second path, one I think it is fair to say she favors, "finds utility in applying the abolitionist history and logic of the Reconstruction Amendments to today's political conditions in the service of prison abolition." Although she provides a number of arguments in favor of an instrumental use of the Constitution in service of prison abolition, she acknowledges the tension and argues that abolitionists "must engage dynamically with this tension." This is a useful discussion and fitting conclusion. It is equally true for scholars who are simply interested in studying and discussing prison abolitionism, whether they consider themselves members of this movement or not.

A second and related tension she discusses, also usefully, is that between prison abolition and prison reform. Prison abolitionism, on her account, "is defined in contradistinction to reform: reforming prisons is diametrically opposed to abolishing them. Efforts to  improve the fairness of carceral systems and to increase their efficiency or legitimacy only strengthen those systems and divert attention from eradicating them." This raises an obvious question: "How can abolitionists take incremental steps toward dismantling prisons without falling into reformist traps?" Abolitionists have "resolved this quandary," she writes, by adopting "the concept of 'non-reformist reforms--those measures that reduce the power of an oppressive system while illuminating the system's inability to solve the crises it creates.'" I'm not at all sure she convinces me that "non-reformist reforms" avoid the "reformist traps" she describes as a concern of the abolitionists. It seems to me that as with the former point, she could conclude more forcefully that this is an ongoing and perhaps an ineluctable tension. But I appreciated her raising and grappling with the question.

* * *    

I have given a lengthy description of Professor Roberts's Foreword, and noted some of what I found most instructive in it, because I have no interest in simply dismissing it, nor in dismissing "prison abolitionism" as such. Criticisms of legal scholarship based solely on the politics or aims of the scholar or scholarship, even if and when they're justified, tend to be accepted or rejected along the usual polarized political lines, and as such rarely move discussion forward. And I care more whether a particular article is good than what its politics are. An explicitly "political" or normative article that is open about the flaws, dangers, tensions, and unanswered questions of its argument, and that is open about how its logic could be used in ways that make it useful to one's political opponents or politically unsaleable for one's allies, can be a fine piece of scholarship. An ostensibly disinterested scholarly work that fails to do these things is not.

But it does seem to me that this rather large collection of pieces, appearing in a short time in the same journal, does raise some obvious but important questions about the state of the scholarly mission of the journal and about what it does not do, and perhaps about its institutional functioning. The latter point is perhaps most evident in the unusual nature of the Developments issue itself. Was the decision to depart from the journal's usual practice of making the Developments issue a student-written issue supported overwhelmingly by its editorial staff? Was the decision to devote that issue only to the writings of prison abolitionists, and not to include critics of prison abolitionism or supporters of, so to speak, "reformist reform" also supported by everyone? Were there no editors who harbored intellectual or practical doubts about prison abolitionism? Even more to the point, were there no editors who support prison abolitionism but thought that, as a scholarly journal, the Law Review should have included serious skeptical or critical treatments as part of its unusual Developments issue? 

One might ask similar questions, not about Roberts's Foreword, but about the journal's institutional treatment of that Foreword. One of the useful aspects of the HLR's online Forum is that it allows for critical scholarly responses to the journal's main articles. "Critical" doesn't have to mean "opposed"; just critical. No article is perfect and no interesting topic does not have ample room for varied approaches and hard questions. Often, as far as I can tell from the outside, the journal commissions Forum pieces precisely for that reason, and does so around the same time that it commissions the articles to which the Forum pieces are a response. Most recent Forewords have been accompanied, often contemporaneously, by responsive Forum pieces. So far there is none for Roberts's Foreword. It is certainly possible that one or more such pieces are on their way, and that they will raise some of the questions that any scholar might raise about the Foreword or about prison abolitionism itself. I hope that's the case. But given that the Developments issue came out in April and surely was some time in the making, there has certainly been a long delay, even leaving aside a Forum response to Roberts's Foreword. From both a scholarly and an institutional (assuming that at least a couple of editors think there ought to be critical as well as supportive treatments of the issue, whether for purely scholarly and intellectual reasons, or for institutional reasons, or because they are personally skeptical of prison abolition) perspective, I find it hard to imagine any justification for not doing so.

One might respond that there is no need to do so if those criticisms have been well aired elsewhere. I doubt that holds up as a scholarly justification: that might be true of one or two isolated articles, but when a journal devotes an entire issue and a major separate piece to what is largely a single perspective, that response becomes quite weak. The more it says from a single perspective, surely the more obvious it becomes that there are unanswered questions that ought to be addressed. Nor is it a good justification to say that the journal is uninterested in such perspectives because there is nothing to be said on the other side. At least on this issue, the Foreword itself notes several tensions in the movement, and both the Foreword and the Developments introduction note the difficulty in defining the movement at all. Obviously there are things to be said on the other side.                                 

Finally, I don't see how it would be a good response to say that the journal is only interested in one perspective because it has taken an institutional stand in favor of one position. The most obvious response, and one I endorse, is that this is not how a scholarly journal is supposed to work. It is especially true in the case of a massively staffed student-run journal, because it seems unlikely that there is unanimity on the part of all the editors on that position and, even if there were, it is unlikelier still that all of those editors are both fans of prison abolition and opposed to the basic scholarly norms that would counsel in favor of including critical as well as supportive treatments of that movement. Even if every editor subscribed to both propositions and was interested only in advocating for and selling prison abolition, and even if that were a legitimate approach for a flagship law journal, from a strategic point of view there is good reason to think that a univocal approach, one that doesn't include the usual scholarly apparatus of serious doubt and criticism, will only convince those who are already convinced and will ultimately do more to engender skepticism about the whole project than to advance its serious treatment by others.

In fact, and with due acknowledgment that this isn't my field, it seems to me, based on some searches and inquiries to criminal law scholars, that it is not the case that criticism or skepticism of prison abolition has been well aired elsewhere, and especially not in legal scholarship. Even though the movement has been around for some time, it has only gained wider public attention relatively recently, so perhaps that's unsurprising. A number of the journalistic treatments that have been offered on the subject, which one might expect to include some effort to air criticisms or skepticism, have failed to do so in any serious way--an unfortunate side effect, it seems to me, of changes in journalism since my own brief stint as a journalist. The New York Times Magazine's main discussion of this topic, to give a prominent example, is written by a novelist who is a prison abolitionist. There are a couple of well-known law review articles discussing prison abolitionism, now including Roberts's Foreword, but Roberts writes that "[a]bolitionist theorizing and activism have largely occurred separately from lawyers and the legal academy," and the Developments introduction, which she cites, similarly asserts that prison abolition "is so often missing from legal journals and education." If legal scholarship hasn't much discussed prison abolition at all, it surely has left a gap for critical discussion of the subject. One would think legal scholars, including those who support abolition, would naturally support efforts to encourage such a literature.

As I've made clear, this isn't my field. I wouldn't write such an article. But I would certainly be interested to hear what criminal law and justice scholars might say if they turned a critical eye on the topic. People tend to like publishing in the Harvard Law Review and its Forum, and I imagine it would not find it impossible to find smart and qualified legal scholars to raise critical questions about it from a variety of perspectives. I imagine it could find even more from other disciplines (such as criminology) in which there has already been more discussion of prison abolition, including critical discussions by those who are sympathetic to the movement.

The editors could start, both in identifying questions and in identifying authors, with this article by two criminologists, Nicolas Carrier and Justin Piché, on "Blind Spots of Abolitionist Thought in Academia." They argue in this 2015 article that while abolitionism has been subjected to "harsh and ill-informed critiques, . . . not all critiques directed at abolitionism are misguided....[T]he marginality of abolitionism, in the realm of scholarship and elsewhere, is at least partly the result of failures to adequately confront a set of longstanding and emerging challenges, compromising its very tenability." They note what they consider, at the time, a paucity of "comprehensive critical self-assessment[s] of abolitionism," and identify an article from 2000 that they think does fit the bill. In the 15 years since the publication of that article, they write, "abolitionists [still] have not satisfactorily confronted some critiques that have been [made of] prison and penal abolitionism." And they note, importantly although I would have thought it obvious, that "[i]f academia offers the privilege of indulging in abolitionist communications, then an academic discussion of some of its  problems and unsolved dimensions ought not  to be interpreted as a negation of its possibility."

If Carrier and Piché are (still) right, then there is room and need for informed but critical discussion of prison abolitionism. Given the recent volume of pieces the HLR has published on the topic, the ability of that journal to solicit the work of good writers, and the function of the HLR Forum and the space it provides, one would think it would be in a particularly good position to commission such work, and even that as a scholarly journal with an apparent strong interest in the subject it has a duty to do so. Given the vast number of criminal law scholars, one would think that the legal academy would be fertile ground to find such critics. The journal's student editors, having spent so much time working on this subject, would also be well positioned to do such work; surely some of them, while they were editing the contributions on this topic and familiarizing themselves with the abolitionist literature that is copiously cited by Roberts and the authors in the Developments issue, found unanswered questions and room for doubt. As I have noted, Roberts certainly acknowledges and addresses "tensions" and "quandar[ies]" in prison abolitionism; but that is surely not all that can be said. And given the recent emergence of some serious abolitionist scholarship in the law journals, one would also think that there is room not only for sympathetic critique but for more forceful work opposing or raising serious doubts about prison abolitionism--work which could or would now not be "harsh and ill-informed," but thoughtful and informed by the very work that these abolitionist legal scholars have published.

That none of this has yet appeared in the HLR is at least unfortunate. I think it's fair to say it raises some serious institutional questions--for this journal, at a minimum, if not more generally for American legal scholarship. It may be a scholarly duty for a legal academic journal to publish new ideas or topics that have been neglected in legal scholarship. But it is equally a duty for it to publish critical thinking about those new ideas and not just to champion them. And the more a journal publishes on that topic, the more pertinent and pressing that duty becomes. If it were really serious about these issues, one would obviously expect it to be serious enough to seek out and offer good critical work on the topic. It seems to me that merely championing some movement is, in some ways, and especially for a leading scholarly journal, as much an indication of a lack of true seriousness as it is of genuine seriousness about it.

On the one hand, I hesitate to be too critical about the work of law students, and wish to be charitable. On the other, rightly or wrongly, the HLR is considered a leading scholarly journal in our field; and its editors, in my scanty experience dealing with them, are smart, serious, and capable. Their privileged position, the importance of their journal to the discipline, and their talent and intelligence all suggest that it is fair to ask whether they could have done better and, more cautiously, why they have proceeded as they have so far. As I've said, perhaps there are Forum pieces or student notes in the offing that will offer a more critical and disinterested scholarly take on prison abolitionism. But they haven't shown up yet, and there is certainly still time and room to provide such work if none has been planned, and a large number of criminal law scholars who might do it if asked.

Although I understand the HLR to be a more or less independent entity, there are also institutional questions about the law school and its faculty and administration, and their response to the work the journal has been doing of late. Were there any faculty concerns about the unusual nature of the Developments issue, with its departure from the usual practice of being student-writtten? Were there are concerns about whether the student editors were all in agreement with an issue that took an essentially supportive rather than disinterested scholarly position on prison abolitionism, and if not whether those editors were given an opportunity to provide more critical contributions? Are any of the faculty concerned about the absence, so far at least, of any critical response in the HLR Forum to either the Development articles or the Foreword? Have any of the faculty or administration conveyed any such concerns to the journal's editors, in "Grizzer-gram" fashion? If they haven't, I think they ought to--not because they support or oppose prison abolitionism, but because they want the journal to function at its best and in proper fashion as a scholarly journal. I have no inside knowledge about any of this, of course, and perhaps there have indeed been such discussions. There is surely room for them.

I repeat: I have no brief against prison abolitionism, as an intellectual or activist movement; and I think the Foreword, in particular, is a serious and interesting piece. Nor, at least here, am I questioning whether there can ever be advocacy in legal scholarship or by legal journals. My concern is with the unusual way it has been addressed by a leading general (and not subject-specific) scholarly journal, with a particular set of scholarly duties, and with whatever that unusual treatment may have to say about the journal institutionally. For various reasons, good or bad, these kinds of questions tend not to be aired publicly all that much, even if other scholars might have the same concerns. But I think there are reasons to be concerned, and to put those concerns on the record. Ours is, after all, or is supposed to be, a scholarly discipline; and we are ultimately the ones responsible for policing it, publicly as well as privately.

Posted by Paul Horwitz on December 21, 2019 at 12:16 PM in Paul Horwitz | Permalink | Comments (0)

Wednesday, December 18, 2019

Kalt on "Experts" and Journalists

A nice piece by law professor Brian Kalt at Quillette, arguing that, as the headline puts it, "Journalists Need to Do a Better Job Matching 'Experts' to Their Actual Expertise." Although Kalt is writing mostly about law professors, of course it is true of many subjects.

I note Kalt's piece for purposes of adding two things. First, as Kalt observes later in the piece, perhaps too gently, this is something the experts themselves could help with. I would go further than that. By definition, the "experts" themselves are the ones who are supposed to get it right: to know the subjects on which they are or aren't qualified to opine. Kalt writes, correctly, that when contacted by a journalist, one may not know enough to opine, but may have some idea who is an expert in that area and to offer those names to the reporter. It's a good thing, and perhaps a professional obligation, to help in that fashion. But the most important word in the sentence "No, I'm not an expert on this subject and thus won't talk to you, but here are some people you might contact," is "No." The most important obligation an actual expert has is to refuse to talk qua expert about any subject on which one isn't actually expert. 

Expertise is not relative. Some professors may console or rationalize a willingness to talk on such subjects on the grounds that they certainly know more about the subject than the reporter or than many laypeople and thus can be of some help. But expertise consists of a high level of skill or knowledge, not a better-than-average level of skill or knowledge. And it is topic-specific. Teaching a survey course in some area does not make you an expert on everything contained within that course, and most people who teach, say, constitutional law focus their scholarship on some particular area rather than the whole megillah. If you're not genuinely expert on the topic you've been asked to opine on, just say no. The headline of Kalt's piece notwithstanding, it seems to me that the burden is first and foremost on the "expert," not the journalist. (Nor, of course, is it sufficient that being quoted is seen as being good for your law school or university. Even if it were true, which I doubt, that it's genuinely good for your institution for you to talk about questions outside your expertise, your primary duty is to your discipline and to your professional integrity. Being an academic means never having to say you're sorry when you tell your institution's press person that you're unwilling to talk to a reporter.)

Second, Kalt offers a useful stylized account of what he thinks and says when asked to opine on some issue about which he has "only a glib understanding and no special expertise," in which he explains to the reporter that he doesn't know more about some question than "your average lawyer." It seems to me that this is the key to the dialogue Howard had a while back with some commenters about why he would not sign a law professors' letter addressing the question of a judicial nominee's demeanor. Howard wrote that that question "did not call for any scholarly expertise"; some commenters argued back that this was a question on which one could be an expert. There is some truth to the commenters' counter-argument, at least in the abstract. But it is not a question on which most law professors, or even most teachers of subjects like legal ethics, are expert, and they are certainly not expert simply by virtue of being law professors or lawyers. If your opinion on a subject is ultimately, and at best, just that of "your average lawyer," again, you should not opine on that question.       

  

Posted by Paul Horwitz on December 18, 2019 at 02:08 PM in Paul Horwitz | Permalink | Comments (0)

Monday, December 09, 2019

What the "Legal Scholars Letter" Suggests About the Signers' Views on Constitutional Interpretation

From TaxProfBlog, I learn of a letter published on something called Medium and titled "Letter to Congress from Legal Scholars." I am less interested in what it says on the primary subject of the letter--whether "President Trump engaged in impeachable conduct"--and more in what it offers by way of insight into the views of some 765 individuals (so far) affiliated with law schools, including full-time, adjunct, and visiting scholars, on American constitutional interpretation. In general, and imperfectly, I try to avoid making statements about others' motivations or thinking, because we see through a glass darkly on such questions and because it is rarely necessary to draw conclusions about others' motives or thinking when we can focus instead on their words and actions. But for present purposes, I do write with the assumption that the signers believe the contents of the letter, and that their beliefs extend past the bottom line to embrace at least the major arguments made in the letter and the legitimacy as sources of the sources they rely on. I cannot say this is an accurate assumption as to any particular signer. But it seems to me that to assume anything else would be disrespectful. On that assumption, I think we can identify in the letter at least the following propositions about constitutional interpretation. They are hardly shocking propositions; there is no "gotcha" spirit to this post. But it is always interesting to take a sounding of the basic views on constitutional interpretation of a large number of American legal scholars, some of whom teach and/or write on constitutional law.  

1) The views of the "Founders" are at least relevant to constitutional interpretation. Having offered the statement that the president engaged in impeachable conduct, the letter proceeds: "We do not reach this conclusion lightly. The Founders did not make impeachment available for disagreements over policy, even profound ones, nor for extreme distaste for the manner in which the President executes his office." It states that President Trump's conduct "is precisely the type of threat to our democracy that the Founders feared when they included the remedy of impeachment in the Constitution." It cites the Founders' "keen[ ] concern[s]" about corruption in presidential dealing with foreign governments and their "thinking on impeachment." These views and concerns are repeatedly given a strong role in the letter's account of what impeachment is for and what it means. Obviously they think the Founders' views are highly relevant to the interpretation of the Constitution. Although I leave it at "relevant," it doesn't seem unfair to say that the letter suggests that the Founders' views are not only relevant, but of great importance in understanding the Constitution and its individual provisions. As a side note, it is interesting that the letter refers solely to the "Founders" and not to the ratifiers of the Constitution.

2) The Federalist and the constitutional convention--apparently including Madison's notes of the convention--are relevant sources of constitutional interpretation. In its assertions about what the constitutional text concerning impeachment means, its purposes, and its applications, the letter links three times to the proceedings of the constitutional convention and once to the Federalist. One can therefore assume that the letter's signatories believe these are relevant sources of constitutional interpretation. (This does not necessarily mean they believe they are relevant interpretive sources for judges.) As a side note, it appears that the letter implicitly weighs in on the reliability, at least in broad terms, of James Madison's notes of the convention--a point that has recently and prominently been questioned by the legal historian Mary Sarah Bilder--since it appears to link to Max Farrand's use of Madison's notes. I am not sufficiently familiar with the specifics of Bilder's work to say how her criticisms would apply to the particular portions of Madison's notes that the letter relies on as authority. Whether or how much one should rely on the Federalist has, of course, long been a question for constitutional interpreters, and the letter apparently settles on the view that one can rely on it at least to enough of an extent as to make it one of one's primary sources in a letter to Congress about the constitutional meaning of impeachment.  

3) At least where it is specific, constitutional text is exclusive. To repeat and extend the quote I used above, the letter argues early on, "The Founders did not make impeachment available for disagreements over policy, even profound ones, nor for extreme distaste for the manner in which the President executes his office. Only 'Treason, Bribery or other high Crimes and Misdemeanors' warrant impeachment." This seems to suggest a conclusion that, at least where the Constitution provides specific textual instructions or grounds and omits others, that text--glossed, as we have seen, by the views and concerns of the "Founders"--is authoritative and exclusive. I do not draw any conclusions from this proposition about what the signers might think about the nature of more vague or open-ended constitutional text or about the existence or non-existence of unenumerated rights. I am a little curious how the proposition the letter adheres to would apply to the arguments of Professors Ackerman and Amar about the non-exclusivity of the quite specific instructions set out in Article V concerning constitutional amendment. One would think that as a logical matter the signers would be disinclined to share Ackerman or Amar's views, although surely that question would require a good deal more airing.

4) Oaths, office, and the "public trust" matter. The letter includes within the scope of impeachable conduct a president's "betray[al]" of his oath of office, at least where it involves threats to American democracy. It goes on to assert that "[i]mpeachment is a remedy for grave abuses of the public trust," and that treason and bribery, the "two specific bases for impeachment named in the Constitution" (with "high Crimes and Misdemeanors presumably read as non-specific bases), involve grave abuses of the public trust because they "include conduct undertaken not in the 'faithful execution' of public office that the Constitution requires, but instead for personal gain (bribery) or to benefit a foreign enemy (treason)." While these assertions must surely be read in light of the specific circumstances, I think they can properly also be read more broadly, to suggest the importance of the oath of office, of faithful execution, of the concept of public office itself, and to suggest that faithful execution of the oath does not include actions undertaken (strictly?) for personal gain as opposed to for purely public-regarding and office-centered reasons. Again, this is not a "gotcha" post and I do not understand these propositions to be terribly controversial as such. I do find them interesting, nonetheless, for a few reasons. The most important is the recognition of something (at least on my reading of these subjects) more than strictly positivistic, textualist, or power-related in the action of office-holders, but rather a recognition of the importance of the concept of office, of oath-keeping, and of particular virtues in the holding and performance of one's office. It is a topic I find fascinating and have written about. The letter also suggests the influence of recent legal writers, including my blog-mates Ethan, who has written about oaths and faithful execution, and Richard, who has written about oaths. Whether the logic of this focus on oath, office, and faithful execution might have more interesting or controversial applications is not something I'm in a position to opine about. But I would be curious about two questions. One is how these propositions should be understood to apply to judges, who also take oaths of office (both constitutional and statutory), and in particular whether a judge who rules for reasons of, say, a general and personal sensibility concerning justice rather than for more channeled and textually constrained legal and constitutional reasons is in violation of his or her oath. The second is whether the presidential oath and the faithful execution of public office are only violated by certain kinds of personal gain. The letter focuses on bribery--understandably, since it is one of the specific grounds for impeachment. But one can violate one's oath and one's duty of faithful execution in other ways than bribery. Does a president who acts, not with the public good and the faithful execution of his or her office first and foremost in mind, but for things like the good of his or her own re-election of party fortunes similarly violate the oath and his or her constitutional duty? If so, is that impeachable as well?

5) "Extreme distaste for the manner in which the President executes his office" is not a basis for impeachment. That last question may be answered in part by the opening argument of the letter, quoted above, which states that neither profound policy disagreements nor extreme distaste for the manner in which the President executes his office are "available" bases for impeachment. That suggests at least some implicit limitation on the kind of conduct that falls within the scope of violation of the oath or of the duty of faithful execution, or conversely suggests that only some forms of execution are faithless, and that some extremely distasteful forms of execution of the office of the President can nevertheless be "faithful execution." Without suggesting that the letter itself says more about this topic than it actually does, it seems to me that this proposition necessarily has some implications for other questions that have been raised around the current impeachment controversy. One member of Congress, for instance, has argued that the articles of impeachment should be broadened to include "[the President's employment of] racist, anti-Semitic, Islamophobic, transphobic, xenophobic language instigating enmity and inciting violence within our society" and "'the adverse impact his racism is having on the countless African-American victims who believe that, too often, one party ignores us and the other takes us for granted." A newspaper writer, saying he had consulted on the question with "legal experts," recently called for eight articles of impeachment, including "conduct grossly incompatible with the presidency" such as "[lying] constantly, eroding the credibility of the office." Without wanting to presume too much and with due acknowledgment that the devil is in the details, it seems to me that the logic of the legal scholars' letter suggests that some or many of the signatories would feel compelled to disagree with such arguments and hold these to be "unavailable" bases for impeachment.  

Again, to be perfectly clear, I am interested only in the propositions offered or strongly implied in the letter. I draw no firm conclusions about what its signers actually believe, although the contents of a document that one signs and offers to Congress ought to be pretty good evidence of just that. I understand that some people may feel free to sign letters or amicus briefs--even when those letters or briefs not only make clear that they are writing as legal scholars but add that they "do not reach" the conclusion(s) offered in the letter "lightly"--with which they do not fully agree or as to which they agree only with the bottom line while taking various views on all the stated "considerations" that lead to that bottom line. I believe such a position to be inconsistent with either scholarly or civic integrity, but I imagine views on that will differ. And certainly there is room for friendly argument and further thought--by me, by others, and perhaps by the signers themselves--about what the letter and its arguments mean and imply for constitutional interpretation, both as to impeachment and as to other constitutional questions, although I would think they must mean something. 

Posted by Paul Horwitz on December 9, 2019 at 12:30 PM in Paul Horwitz | Permalink | Comments (0)

Wednesday, October 23, 2019

On Normal Journalism, with the Payment of a Debt and a Note on Triviality and Inertia

I've been in poor health this semester and hence blogging even less than usual. The difficulty in restarting has less to do with priorities--there are surely more important things to be doing, but activity begets activity, so making a start anywhere ultimately helps push everything along--than with the crushing inertia that comes from not writing.

Few contemporary events strike me as worth writing about, and the vast majority of things that people seem actually to write these days about strike me as especially and remarkably trivial. A fair measure of the importance of most of what we talk or write about, especially on social media, is to skip the daily papers and online media for a week and ask a few days later which stories it actually matters that one missed. I share the conventional negative reaction to many stories of outrage from, say, the President, or silly-season conduct from, say, some activist group or other. But restarting my engines to respond to such ephemera seems to give them unworthy dignity and attention and to be a poor use of energy that I ought to be husbanding with care. One loses a measure of engagement, which is indeed a loss. On the other hand, one gains a little of the long view, and appreciates the degree to which much day-to-day expenditure of energy, anger, action, and so on has a great deal to do with serving career, emotional, tribal, solidaristic, conformist, and self-amusement purposes as opposed to anything more lasting or other-regarding.

In this case, I can at least take finger to keyboard again for one decent purpose, which is to repay a debt. Many months ago Corey Brettschneider was kind enough to send me a copy of his no-longer-quite-new book, The Oath and the Office: A Guide to the Constitution for Future Presidents. Given my interest in oath, office, and honor, I was delighted by the focus of the book and wanted to alert blog readers to it. Time passed me by and the book has already made the journey to paperback, but I am happy to call attention to it just the same. Here is a useful review of the book by Josh Chafetz, much better than most of what now appears in the diminished New York Times Book Review. It's a worthy subject; regardless of whether I agree or disagree with Brettschneider's positions in particular areas, it's worthwhile for its focus on the oath and the concept of office, and hence on the centrality of the marriage of the official and the personal to the American political and constitutional system. I'm grateful to Corey both for the book and for his generosity in sending it to me--not to mention his patience.

Although, again, any given anecdata or daily-outrage story hardly seems reason enough to try to pick up my blogging duties again, I was also struck, as an institutionalist and someone interested in journalism, by a story this week concerning the Harvard Crimson. I don't consider it a major story; just one of many that justify gloom but not panic. Just the same, it struck me enough to write about, given its subject matter, its silliness, and the possibility that some of the young people involved could go on to the kinds of jobs where they might transmit misconceived views to a wider audience.

As newspapers will do, the Crimson published a workmanlike report of a protest by various Harvard community members who are part of a "student-led immigration advocacy group," calling for the abolition of U.S. Immigration and Customs Enforcement. (I imagine this had mostly to do with immigration and less to do with customs.) As newspapers will also do, the Crimson sought comment from ICE, which did not respond, as well as the Harvard University Police Department, which came in for criticism at the march for prior actions.    

The response to these standard acts of journalism was a petition, replete with the obligatory banal hashtag, condemning the Crimson's actions and its temerarious insistence that it would follow journalistic norms in the future. Seeking comment from the agency whose abolition had been demanded, it declared, demonstrated "cultural insensitivity." Moreover, "In this political climate, a request for comment is virtually the same as tipping them off, regardless of how they are contacted." Of course any petition, regardless of its content, will find signers as honey draws flies. But I did find it remarkable that the signers included the Harvard College Democrats, among others.      

Had the paper called ICE not for comment but to ask why it had not taken action against some identified set of students, I could at least understand some of the objections. Of course, the paper did none of this: I am sure the reporter asked something along the lines of, "Hey, this group wants to abolish you. Any thoughts?" The notion that this is tantamount to tipping them off is absurd, at least if one operates on the assumption that the protest itself was not secret; that its organizers, who used daylight and bullhorns rather than convening in a crypt at midnight while speaking in whispers, wanted it to be noticed by others; and that some customs or immigration official or employee somewhere might pick up a free college paper or even accidentally walk through Harvard Square.

One might question the custom of calling official bodies for comment on the ground that official bodies in such cases, like eulogists and college presidents, are foreordained to say nothing interesting. This is true. But then, inconsequential and standard-issue statements are par for the course for the whole roundelay of protest and response, and I doubt anything ICE might have said would have been any more or less predictable than the statements of the protesters themselves ("definitely an issue that needs to be put into conversation," "unwavering solidarity," "the power that we have in all coming together," and so on), which the Crimson duly reported. 

The mistaken belief that calling ICE for comment on an event intended to announce loudly that ICE should be abolished amounted to reporting specific individuals to the agency's notice can at least be assuaged by the Crimson's explanation, and responded to by an appropriate apology on the part of the petition writers. Of greater concern are some other statements. According to the Crimson, the communications director for another group, a person with years of experience in journalism (and who, in fairness, said she understood the views of both sides), offered the view that "getting both sides isn't always what is fair, especially when one side has already made its views well known through the megaphones of government." I'm not sure how well this calculus applies to a story in the Crimson, for whose readers the megaphones of immigration policy protestors ring at least as loudly as those of ICE. But in any event, the notion that getting both sides is not always sufficient is not the same as saying one should not at least do that. (It's also far from justification for the petition's further demand, as far as I understood it, that the Crimson adopt a policy of not asking ICE for comment on stories for which it would normally be asked for comment.) Nor, for those who support the press and journalism as (at its infrequent best) a professional institution, is it encouraging to see various groups falling in line with the student group and pledging not to speak to the Crimson at all until it ceases "asking ICE for comment on stories about immigration activism on campus." As a former journalist, I'm all in favor of refusing to speak to the press, especially on, say, issues about which one doesn't really know much or stories that one thinks are foolish or trivial--but not as a means of trying to push a newspaper to adopt policies that will further contribute to the decline of professional standards.      

The Crimson is to be congratulated for acting unlike many contemporary institutions and instead making clear that it had no intention of changing its policy or of throwing anyone under the bus. Having done nothing wrong, why would or should it? Other papers (I doubt the New York Times will stop or slow its rapid decline as a newspaper until its standard answer to its staff's demands for town halls and meetings with top editors is "No") and not a few universities could learn from this. But we should worry at least a bit that people want from journalism what it can't and shouldn't give them--let alone that an increasing number of the people who want those things actually work in journalism. It may or may not be a dying institution; but there's little sense in sending it off to the morgue any more hastily. Of course one must make allowances for callowness or error among college students, and especially generous allowances for Ivy League students. But it's hardly suggestive of a better future for an institution we both still need, and need to get well soon.   

 

Posted by Paul Horwitz on October 23, 2019 at 02:29 PM in Paul Horwitz | Permalink | Comments (0)

Wednesday, August 07, 2019

University of Alabama School of Law Faculty Hiring Announcement

I'm delighted to pass along this hiring announcement for the University of Alabama School of Law:

The University of Alabama School of Law seeks to fill one or more entry-level/junior-lateral tenure-track positions for the 2020-21 academic year. Candidates must have outstanding academic credentials, including a J.D. from an accredited law school or an equivalent degree (such as a Ph.D. in a related field). Entry-level candidates should demonstrate potential for strong teaching and scholarship; junior-lateral candidates should have an established record of excellent teaching and distinguished scholarship. The primary focus of the search is criminal law, however, qualified applicants in other areas may be considered. We welcome applications from candidates who approach scholarship from a variety of perspectives and methods. The University embraces diversity in its faculty, students, and staff, and we welcome applications from those who would add to the diversity of our academic community.

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

Link to Ad:

https://facultyjobs.ua.edu/postings/45299

 

Posted by Paul Horwitz on August 7, 2019 at 12:42 PM in Paul Horwitz | Permalink | Comments (0)

Wednesday, May 29, 2019

Fisher & Larsen on "Virtual Briefing": A Recommendation and Some Thoughts

Jeffrey Fisher and Allison Orr Larsen have posted their forthcoming article, "Virtual Briefing at the Supreme Court." (Thanks to Larry Solum for the pointer.) It's a fine and fascinating article, necessarily speculative but with interesting details. It's commendable in seeking to open a conversation about a new phenomenon--or a new variety of an old phenomenon, but one whose own features and potential problems deserve to be studied. I have a few thoughts below, but first here is the abstract:

The open secret of Supreme Court advocacy in a digital era is that there is a new way to argue to the Justices. Today’s Supreme Court arguments are developed online: They are dissected and explored in blog posts, fleshed out in popular podcasts, and analyzed and re-analyzed by experts who do not represent parties or have even filed a brief in the case at all. This “virtual briefing” (as we call it) is intended to influence the Justices and their law clerks but exists completely outside of traditional briefing rules. This article describes virtual briefing and makes a case that the key players inside the Court are listening. In particular, we show that the Twitter patterns of law clerks indicate they are paying close attention to producers of virtual briefing, and threads of these arguments (proposed and developed online) are starting to appear in the Court’s decisions.

We argue that this “crowdsourcing” dynamic to Supreme Court decision-making is at least worth a serious pause. There is surely merit to enlarging the dialogue around the issues the Supreme Court decides - maybe the best ideas will come from new voices in the crowd. But the confines of the adversarial process have been around for centuries, and there are significant risks that come with operating outside of it particularly given the unique nature and speed of online discussions. We analyze those risks in this article and suggest it is time to think hard about embracing virtual briefing -- truly assessing what can be gained and what will be lost along the way.

In general terms the article is of a piece with Larsen's other examinations of the real-world details and dilemmas of the amicus process. It is also, to my mind, related to the writing of folks like Carissa Byrne Hessick about the intersection between social media activity and the ethics of legal scholarship. It also relates to some of the thoughts I have offered on the ethics of legal scholarship and its connection to the strategic use of multiple "platforms" for various purposes. A useful contribution in its own right, Fisher and Larsen's article is also useful when viewed in that broader context.

A few observations. First, Fisher and Larsen are admirably open about the limits of the article and about the preliminary nature of its aim: not to make a hard recommendation, but to "lay out the problem and to trigger a conversation." They canvass some of the potential benefits as well as the potential risks of the phenomenon they discuss, and examine possible responses, including doing nothing. It should be evident that I am in sympathy with that goal. One potential response to the "open secret" they discuss is that nothing untoward is going on because nothing is going on (or nothing new, different, or coordinated). A contrary response is to "shrug" because it's an "open secret," so everyone knows what is happening already. I'm allergic to "open secrets" for these reasons. The failure to discuss them openly, candidly, and clearly (including, say, people who are deliberately attempting to influence the Court saying publicly saying that they're trying to do so, preferably in the same piece of writing) means they are either hard to verify and identify more precisely, and thus are subject to the usual rumor mill and possibly incorrect conventional wisdom, or that the most accurate knowledge about them will be confined to small and elite circles whose ability to police themselves shouldn't be assumed or trusted. As they write, whatever the right thing to do is, the phenomenon should at least be publicly recognized and discussed, rather than "allowing virtual briefing to occur unrecognized and without evaluation."

Second, Fisher and Larsen are candid about the difficulty of defining "virtual briefing." Where do social media posts, op-eds, blog posts, podcasts, and other forms of commentary fall? Within different platforms, what kinds of different types are there and which count as "virtual briefing:" "hot takes, "deep dives," disinterested analysis versus advocacy or propaganda, direct attempts to manipulate the justices' concern for their reputations, and so on? Which are better and which are worse, and why? I'm not sure I agree with all their analysis here, in part because it is not always clear whether a particular format or ostensible aim is undertaken in accordance with its own ostensible standards or involves a mixture of more questionable moves and motives. But I agree with. the basic point they make here: "We acknowledge that we are identifying a line-drawing problem, but wrestling with that line is preferable to just passively accepting a new normal without pausing to consider the consequences."

They are equally candid about the difficulty of proving that this phenomenon has any effect on the Court, or even reaches it. It seems clear, given the amount of time and effort devoted to it, that many people think this "virtual briefing" reaches the justices or their clerks, either directly or by its effect on news accounts and opinion-makers whose approval the justices may covet. (Although it's hard to say even this for sure. Much of the effort could be equally motivated by a desire to advance one's own fame, career, or sense of self or self-importance; usually it's surely a mix, given the high art to which American professionals have raised the idea of doing well while doing good.) And some of the evidence they offer is quite indirect. But some of that evidence is intriguing. Their survey of law clerks on Twitter is fascinating.  

Third, while the article is mostly concerned with the potential damage to the Court and the adversarial system, I would add my concern, as a member an academic discipline, about virtual briefing's consequences for legal scholars and scholarship. As I wrote in the article I link to above, one standard defense of such activities is that a platform is a platform, and that it hardly matters whether one places one's "lengthy and original analysis of a legal issue," to quote Erwin Chemerinsky, in an amicus brief or an article. (Although it seems to me that if an article and an amicus brief say and do the exact same thing, then one may be doing one or the other job wrong.) And a separate, not quite contrary defense is that no one thinks an op-ed or tweet is anything like a piece of legal scholarship, and that it's wholly possible for the writer to keep these activities in entirely separate categories. I do know people about whom I would say this seems true.

On the other hand, consider three factors: the very blurriness that Fisher and Larsen note above, the difficulty of defining what is and isn't a deliberate form of "virtual briefing"; the number of legal scholars who see all their work not as inevitably political but as deliberately political and "engaged"; and the blurriness of human nature, the extent to which the different activities we engage in subtly influence each other and cannot successfully be kept in separate, airtight mental containers. Even for those who don't mean to blur these lines (and surely some will), there may be some writers who, having undertaken to engage in "serious scholarship," more partisan tweets often influenced by short-term emotions and reactions, op-eds that fall in between, podcasts, and so on, find that work blurring together, and the goals and standards that are supposed to govern each activity becoming indistinct and crumbling. If they cannot recognize that this is happening, how can they act on this recognition? If they do recognize it, will they be willing to say or anything about it? I strongly doubt that virtual briefing has been good for the integrity and quality of legal scholarship or of the legal academy. If and as it becomes the undiscussed norm within and beyond elite circles, and/or an entree to those circles, it seems more likely that the phenomenon will metastasize than that it will become more restrained and self-disciplined. 

Fisher and Larsen conclude by examining several possible responses. In the end, they give the slight nod to a policy of transparency and disclosure. The data they collect about law clerks actually convinces me that it is as or more necessary to engage in internal restrictions (which they also consider). Forbidding law clerks to post on social media seems inadequate, since the real problem is not what they say but the material to which they are exposed, often highly limited material that is mostly about reinforcing their priors. It seems a good minimum idea for judges to simply require law clerks to deactivate any social media account, whether public or anonymous, altogether for the length of their clerkship. (Yes, I assume they will still read newspapers and magazines, doubtless online, along with blogs and other Internet material. While it wouldn't break my heart as a judge to insist that my clerks stay off the Internet for a year, at least the social-media rule would cut down on the hottest of hot takes and the most impulsive, transient, and unreliable reactions.) That won't address the scholarly ethics problem I discuss above, but that's a separate problem that requires its own discussion and response in any event. 

Read the article! It's a start--as it's intended to be. 

Posted by Paul Horwitz on May 29, 2019 at 01:31 PM in Paul Horwitz | Permalink | Comments (0)

Monday, May 20, 2019

"Sponsored" Symposia: A Possible Trend--and Cause for Concern--in Elite Flagship Law Review Publishing

I have been holding on to this blog post for a while, for various and mostly obvious reasons. But when a potential trend arises that deserves to be noted and discussed, and some thought given to future policies, surely someone ought to call attention to it. You can be sure that I will do my best to be careful and descriptive, note any instances in which I lack information, and add the usual layers of caveats, although mostly at the end, not the beginning. So my warning (but not apology) in advance about any entirely typical excessive length. 

In the past year, I have noticed some top-15 law reviews (by the usual rough and customary measures) doing something I have rarely if ever seen at the elite main or flagship law reviews. There are three such examples I'm aware of--three being, by journalistic tradition, enough to count as a "trend." The trend, if it is that, hardly portends the end of the world. (Neither, by the same token, would the utter disappearance of the top ten law reviews be the end of the world--but I don't doubt that would be noted and discussed.) But its importance and possible impact is larger than it might appear at first, and does have some distinctly disquieting aspects. I am less concerned with criticizing it (although I do just that) than I am with drawing it to our attention, calling for us to think about it, and suggesting that law review faculty advisors and law school administrators ought to be aware and proactive about it rather than passive or indifferent. 

The trend, roughly, is this: A number of elite flagship law reviews have been giving over issues of their volume to symposia or special issues that are 1) sponsored by or with particular groups; 2) generally, the groups have particular positions, agendas, leanings, or however you want to describe them; 3) the topic or topics of the symposium reflect that position; and 4) it seems pretty clearly reflected too in the list of speakers.

Let me describe the examples I have in mind. I did not reach out to anyone involved, for better or worse. I'm simply basing my description on the public record, which seems entirely fair. But I would be very glad to learn more, and it might change my views or alleviate my concerns. Where I offer an opinion, I make that clear and take full responsibility for it. Of course I acknowledge that people may disagree with my own assessment. I also acknowledge that, although we are talking about unusually privileged young adults who should not be immune from criticism or treated as if they should never be publicly discussed--not if we are to treat them with genuine respect, anyway--this post does involve law students. I'll save the usual list of caveats until later, but you can take it as a given that nothing here is offered in contempt or disrespect. Indeed, my primary concern is not with the students themselves but with the advice they're getting (or not getting), or pressures they're facing, from tenured and influential law professors, and with the role of law review faculty advisors and law school administrators.

Here are the three examples:

1) The November 2018 Columbia Law Review is a symposium issue titled A First Amendment For All?: Free Expression in An Age of Inequality. The symposium was co-sponsored by the Knight First Amendment Institute at Columbia and the Center for Constitutional Governance. I know very little about the latter center, although it looks general enough in mission and affiliated faculty based on its web site. I do roughly follow the work and publications of the former, which in my opinion does tend to have a particular focus and orientation. Readers can judge for themselves, but I think it is fair to say that the symposium as a whole had a thesis and an underlying belief in and desire to advance and promote that thesis. This is not, by a long shot, a knock on the quality of the articles, including those that share the thesis entirely. And there are two, by Leslie Kendrick and Louis Michael Seidman, that I think are reasonably and commendably skeptical about the value of the project (although I have long wondered whether or not the symposium organizers and other participants were or weren't truly delighted to find Seidman more or less outflanking everyone on the left, rather than from a position of mere progressivism, and from a posture of skepticism about shoehorning every political project into something involving judicial review). The listed participants at the symposium, including the moderators (I have also wondered whether they asked Philip Hamburger to participate or moderate or not, given his recent scholarly focus on speech and religion issues), seem, from my general knowledge, mostly sympathetic to the basic thesis. The print articles don't appear to feature any strong skeptics of the basic thesis, champions of a soi-disant "First Amendment Lochnerism" or strong civil libertarianism, or other genuinely heterodox (in this context) views. 

2) The 2019 UCLA Law Review Symposium, titled Latinx Communities, Race, and the Criminal Justice System, is listed as co-sponsored by the Law Review and "BruinX, Office of Equity, Diversity and Inclusion." (UCLA community members are free to correct me, but I believe BruinX is the research and development arm of UCLA's Office of Equity, Diversity and Inclusion. I can't tell from the comma whether one or both institutions were involved, although I suspect it's the former.) The subjects covered at the symposium are not in my area, so I hesitate to offer descriptions or assessments of how and whether other or different perspectives were, were not, or could have been a part of the symposium. I assume the symposium will result in a print issue, but it has not yet, so I can't say for sure. Nor can I say what its contents will be if it does land in print. 

3) The 2019 Texas Law Review Symposium, Reclaiming Constitutional Norms, is listed as having been co-sponsored by the American Constitution Society. As is, I gather, usual for ACS events, the speakers listed for each panel feature (from my outside reading and estimation, at least) several speakers likely to line up roughly on one side of an issue and/or be ACS members or regulars and one person likely to offer a different perspective. (Of course there may be differences between those who are roughly on the same side of an issue; and conversely, of course there is no guarantee that everyone invited to offer a different perspective was as "different" as one could have asked for or actually did offer a heterodox perspective on the issue. For example, I don't know whether anyone was invited to participate who is skeptical of the very idea of constitutional "norms," or at least critical of the sudden popularity of this concept and of the potentially fair-weather use to which it is currently being put.) Despite my respect for the organizers and for the commendable fact of some obvious effort to include different views here, I suppose I find this symposium especially unusual in that the ACS has its own publications, including the Harvard Law & Policy Review. Given that the ACS's mission is openly political or ideological or however one wants to describe it--and one can definitely applaud it for its candor about this--and that it has its own publications, it is perhaps especially odd to see it partnering with the prestigious general-interest law review of a large public university law school. I assume that a symposium issue of the law review will result, but again I can't say for sure; nor do I know what the contents of such an issue would be. 

If there are other recent examples of sponsored or co-sponsored symposium issues of this sort in what I will call generally elite flagship law reviews (as opposed to secondary journals at elite schools), do speak up and let me know. I think three is enough to go on, in any event, in suggesting that there are various questions we should be asking about this and various legitimate concerns we might have about it. The questions and concerns include:

1) Is this new? I assume it can't be completely new or unprecedented. But I am certainly a regular reader or browser of our legal periodicals, and it does seem unusual to me to have groups with a fairly strong, identifiable position, mission, or ideology serving as "co-sponsors" of symposia in flagship law reviews, let alone elite flagship law reviews. Again, I'm happy to be corrected. At a minimum, though, even if there are scattered examples, it is surely unusual, and the recent number of elite flagship law reviews engaged in this practice in a short period of time seems doubly worth noticing.

2) Have others noticed this? I can answer this in part: Yes, I've spoken to other law professors who have noticed this, thought it unusual, and had concerns about it, although they generally knew of only one or two and not all three examples. But I haven't seen public discussion of it anywhere. (I am no longer on That Social Media Site, so I can't say whether any discussion popped up there.) I understand that discussions of this sort sometimes happen privately, but I don't consider private inside-baseball-type discussions enough (or especially healthy).

3) Is there a reason for it? I prefer not to speculate on this point, and certainly not to speculate in pre- or over-determined directions. Obviously one could ask whether it is consistent with ideological views among (some) contemporary elite law students, but that seems insufficient; there were plenty of politically oriented students running elite law reviews in the past, but they did not often give over whole issues to particular, and partial, groups and viewpoints. One might ask whether it signals a generational change, or a general change, of view about the purposes of scholarship or the trusteeship of scholarly institutions (including elite law schools and their main law reviews), whether among students or among faculty and/or faculty advisors. One might ask whether it signals an emerging strategic approach (or, in a different strategic sense, a justification for continued funding) on the part of the institutions that have been involved in and perhaps pushed for such sponsorship opportunities. Or one might ask whether financial needs have made law review editors more open and law schools more amenable to this phenomenon. On the other hand, there are all kinds of sponsors out there, not all of which have any role in content or any interest in having such a role; law review editors could accept sponsorship from such institutions, or even from the more partial or political institutions involved in the recent examples, while insisting that clearly skeptical or opposing views be a part of the symposium; and if flagship law reviews acted likewise with corporate sponsors--say, accepting sponsorship from big defense firms for a symposium on class action law, taking advice from those firms on whom to invite, and filling most of the guest list with critics of class actions, perhaps with one or two token supporters--they would surely face public criticism and loud charges that doing so would seriously wound the journal's scholarly credibility.  

4) Is it necessary? I find it hard to see how the answer is yes, at least if the question is whether it is necessary for elite flagship law reviews to turn to such groups for "sponsored" or "co-sponsored" symposia. The most obvious reason is that elite law schools, like most law schools and then some, are not exactly lacking in secondary journals, most of which are subject-specific and a number of which tend to have a more overt point of view or mission. Texas advertises ten other journals, including one devoted to civil liberties and civil rights. The 14 other journals listed by UCLA include journals specifically devoted to "scholarly analysis of issues relevant to Chicano and Latino communities" and "current topics in criminal law, policy, and practice." Columbia has 13 other listed journals, although one (the Journal of Law & Social Problems, which is excellent) is devoted to student writing. It does not seem necessary for any of these schools' flagship law reviews, which--I would suggest, not terribly controversially--have a general mission of making themselves open to a variety of issues, subjects, and (even in symposium issues) points of view to collaborate with particular groups of the sort I've named here. (Again, as I made clear, I know less about BruinX or UCLA's Office of Equity, Diversity and Inclusion.)

I might add as well that if there is a perceived need for a new journal with a distinctive mission and open and apparent point of view, if any school can afford to start it, it would be one of these schools. I would also suggest, admittedly by way of speculation, that if the Federalist Society, which has its own publications including the Harvard Journal of Law and Public Policy, had co-sponsored a symposium run by and (I assume) seeing print in the Texas Law Review, even with an ostensible liberal on each panel, we would likely have seen more public discussion of these questions. Probably much more public discussion. And we certainly would have seen the argument that there was no justification for such a group acting as sponsor to a symposium in the flagship journal, when it had access to other publications elsewhere and could always turn to a conservative secondary journal at Texas itself.        

5) Is it healthy, unhealthy, or neither? Given that we're talking about a single symposium issue out of several issues in a volume, I could imagine the argument that even if it's not especially healthy, neither is it unhealthy; it's just not a big deal one way or the other. And from a different perspective, I can imagine arguments that it's actually salutary. Leaving out openly political arguments to that effect, one might argue that sponsorship of this sort allows for expert advice about subjects and speakers, and for a wider and more diverse range of speakers. I don't see, though, how these arguments are terribly convincing. One can seek out expert advice without accepting sponsorship, particularly from groups with fairly clear points of view or political programs. And one can similarly seek a more diverse range of speakers without accepting sponsorship, and without leaning toward any particular viewpoint at all.

On the other side, there seem to me to be lots of obvious reasons to be concerned about this.

Leaving aside their employment value for students, main elite law reviews exist to serve two primary missions: To confer status and prestige, and to advance wide-ranging scholarship on a wide range of topics and from a wide range of methods, approaches, and viewpoints, about the law. (Some would reverse the order of the missions in that sentence.) Accepting the sponsorship, and almost inevitably the influence, of a group that may well have a particular axe to grind or mission to advance, at least in a way that does not insist on the presence, participation, and publication of skeptical and outright opposing points of view, doesn't seem to me to advance the second mission, and does seem to me to undermine the scholarly and academic credibility of that journal.

As to the first mission, it is of course widely recognized that, for better or worse, publication in one of these few journals can have dramatic career-making or -advancing effects. Law professors know it (and sometimes lament it), and elite law review editors are not unaware of it either. There is no shortage of discussions out there about the ways in which elite journals in the past or present served to create and entrench certain hierarchies or subjects and confer status in some places, but not others. And that was in circumstances in which those editors rarely had some explicit mission of conferring status selectively and with deliberate partiality, and in theory were open to all subjects and viewpoints. An elite journal that gives over one sixth (or one eighth or whatever its issue-per-volume percentage works out to) of its annual space to a particular sponsoring group and, as part of that sponsored issue, gives space to one general point of view alone in selecting conference participants and authors, is quite clearly rigging its status-conferring machinery in one direction, at least for the space of that issue. If it is not deliberate on the part of the journal (although it seems pretty apparent and foreseeable to me), it certainly may be on the part of the sponsoring organization, which is another reason to avoid this kind of partnership. All of this is all the more true because if the desire is not to confer status and prestige, but to give a particular airing of a specific viewpoint on a particular issue, then, again, there are numerous secondary journals that can satisfy this purpose without departing from their proper mission and role. The only difference is that those journals are less prominent and confer less professional prestige, which ex hypothesi should be irrelevant.  

6) Are faculty advisors, general faculty, or law school administrators aware of and thinking about any of this? I was the faculty advisor to my school's law review for about a decade, and I'm happy to lay my own cards on the table here. If a group of this sort had come to me with the suggestion that it "sponsor" a symposium in Alabama's main law review, I would have said no. (I would have been tempted to use stronger language, but I'm nothing if not diplomatic.) If the group had approached the student editors directly and the students had come to me and enthusiastically agreed with that proposal, I would again have said no, and argued that it was a bad idea. In general, my philosophy as faculty advisor was that the volume belonged to the students, not the advisor or anyone else. But in this case I would have been firm, in the institutional interests of both the journal and the larger academic institution. If faculty colleagues had suggested this to the student editors, I would have declined on behalf of the journal and, in keeping with what I saw as one of my main functions as faculty advisor, would have run interference on behalf of the editors in case those colleagues attempted to cajole, pressure, or otherwise influence the students. And if I saw this happening at my journal while I was not faculty advisor, I would have gone to my colleagues, and also directly to the administration, and urged it to put its foot down and to halt any such practice altogether. 

If I were faculty advisor to any of these journals--I won't say especially any of these journals, but it's true that these journals have a uniquely if absurdly privileged position in our field, and that privilege ought to entail a strong sense of institutional responsibility on the part of the advisors--I would definitely take the same position. And if I were a faculty member at one of those schools, I likewise would raise the issue with my colleagues and with the administration. At a minimum, I would insist that it be openly debated by the faculty as a matter of policy, and I would argue for a firm rule barring these kinds of arrangements.

I welcome disagreement on any of these arguments, clarification on any of the public record, or additional information if others have heard of other journals (especially, but not limited to, flagship journals at elite schools) engaging in what seems to me a relatively new and disturbing phenomenon, or have heard of faculty either advocating or complaining about such arrangements. It's the fact of public recognition and discussion of the potential trend that matters, as far as I'm concerned. It would be terrible to slide insensibly by degrees into a change of policy of this sort. And I find in the end that a lengthy list of caveats is not necessary. I was especially worried about being unduly harsh to law students--even those who occupy unquestionably privileged positions. But it should be clear that the real concern here is with another set of actors entirely: partly the sponsoring groups, which should know better and act better, but mostly the faculty, the faculty advisors, and the law school administrations, all of whom have a responsibility to the scholarly apparatus of their discipline, including the law journals (as subject to criticism as they already are), and a duty to maintain their integrity, a duty that ultimately is salutary for the student editors themselves and that can help insulate them from any susceptibility or pressure to fall into unwise entanglements.  

  

Posted by Paul Horwitz on May 20, 2019 at 06:23 PM in Paul Horwitz | Permalink | Comments (16)

Friday, May 17, 2019

Some Suggested Questions for Fellowship and VAP Directors

I'm delighted that Jessica Erickson will be interviewing fellowship and VAP directors. I look forward to the results. I should note that a few years ago, Elizabeth Chamblee Burch and I co-chaired a panel of the AALS section on Scholarship at the annual meeting titled "The State of the Art on Placing Legal Scholarship and its Potential Consequences." A video is available here. Despite the title, as I recollect, part of the discussion was about the role of fellowships and VAPs and of fellowship and VAP directors in shaping and helping to place scholarship. I would also recommend as relevant a book which landed with a thud on my desk this morning: Ted White's third and final volume of Law in American History, specifically chapter 6, "The American Legal Academy and Jurisprudence II: From Process Theory to 'Law And.'" Among other things, it contains interesting discussions of changes in faculty hiring.

The difficulty with suggesting questions for such a series is that in our small world, with all its conventions and strategic considerations, it can be impolitic to ask the questions one actually wants answered, and being impolitic is a cardinal sin among academics, including legal academics. This is one of the academic attractions of "speaking truth to power:" it points outward, not inward, and so lets sleeping dogs lie. Some questions will necessarily reflect on the strengths and weaknesses of the fellows, who are hardly unprivileged but are also only at the beginning of their careers; I do want to ask questions about them, or about the system that produces them, but with no intent to offend or make them nervous. Some questions will reflect on the people who run those programs. In either case, those of us who want to hire these candidates and want to maintain good relations with their mentors risk damaging that goal if we are impolitic. Better, on this view, to ask those questions in private or not ask them at all, on the assumption that people in the know will, well, know--even if that means both that we entrench the usual systems of hierarchy and inside baseball, and even if it means that the people who consider themselves cognoscenti think they know the real story but are actually thin on details and thick on myths and assumptions.

But one of the obligations of academic tenure, which includes responsibility for the state of one's discipline as well as one's individual institution, is to be impolitic.  I'm not sure the questions I ask here are impolitic; I just haven't worried much about whether they are or not. One should also note that there are obvious reasons for the people Jessica will interview to be politic as well, so it's important to dig down and push back if they offer bromides or generalities. In any event, here are some questions I would be happy to have asked and almost as happy to have answered. 

1) What do we lose by relying on fellowships and VAPs in hiring? It seems to me that the answers to the question what we gain from them are much more obvious, and hence less interesting and less worth asking. I'm happy to be proved wrong by answers that teach me something new about what we gain. But many of those gains seem obvious. Most prominently for me, the average level of basic quality and polish of the candidates I have seen over the past 15 years or so has increased significantly. In addition, their commitment to an academic life is more guaranteed, with the departure from (or, alas, skipping of) legal practice and the sacrifice of time involved in a fellowship serving as proxies for the demonstration of commitment to the academic life that is one of the functions of a doctoral program. (I should note that "commitment" is not the same as "calling." Whether we hire people who have an academic calling is a separate question.) In some respects the candidates are more diverse than they would be, and were, in a system that relied more heavily on individual recommendations and sponsorship at a few schools.

But what do we lose by this system? I've previously recommended Martha Nussbaum's article Cooking for a Job: The Law School Hiring Process, which is now aged but still pertinent, if not prescient, in its concern that law school hiring might prize "quickness, glibness, and aggressiveness" and undervalue "reflectiveness, quietness, and uncertainty." Nussbaum argues in part that it would be better if candidates had writing we could judge carefully instead of focusing on their marketing skills and ability to pass "lunch." Well, we now have articles a-plenty from candidates who go through the fellowship/VAP process. But have we moved away from glibness, marketing skills, "catchy phrases and slogans," passing or flunking "lunch," and the like? Or have we rather refined and improved, through the fellowship process, the job of training candidates to show those questionable qualities, in their writing as well as their selling--the job, in sum, of "polishing" candidates? We gain, I have suggested, a higher average threshold level of quality and readiness. But do we miss rough gems--individuals who are not yet "polished" but who in time might be more likely to contribute genuinely new and heterodox ideas? Do we lose promising oddballs and eccentrics? Candidates who are more high-risk but also more high-gain? Do we lose, or let diminish, the ability to see beneath the patina and make deeper judgments? Not to mention losing those practicing lawyers who not only have longer and more meaningful legal experience but also and genuinely have an academic calling, but are not inclined to go the fellowship route?

2) If there are any such losses, do fellowship and VAP directors attempt to address and remedy them, or are these losses baked in to the current system? I think this question goes to both selection and training. On the selection level, are fellowship and VAP directors looking for rough gems and people with unconventional backgrounds? Or are they already predisposed to hire as fellows or VAPs those who have already checked the same old boxes--top five (or top three) school, law review, two federal court clerkships, work for a "suitable" firm or interest group? If it's the latter, is that really the best use of these resources--to further polish the already-fairly-polished? I am asking rather than answering this question: maybe the answer is that these are the most likely best scholars and we should want them to become law teachers, just as we select the most promising undergraduates in history for graduate programs rather than the C students. But the answer to the question seems less obvious to me than that, since a doctorate is a prerequisite to become a history professor and a fellowship, despite increasing reliance on it as a qualification, is not a prerequisite to become a law professor. At the training level, do fellowship directors talk about the difference between surface polish and serious depth? Do they discourage or encourage the use of "catchy phrases and slogans" and the like? Do they serve as a chisel or cudgel or as a chamois for their fellows? When they give references, are they willing to distinguish those of their fellows who are superficially brilliant from those who have greater depths--or at least to let the superficially brilliant speak for themselves while making a greater effort to champion those who don't lunch well but show true promise as scholars and teachers?

3) How much of the "polish" comes from the programs' leaders and faculty and how much from the fellows themselves? Just as the standard level of quality of the top-school fellows and VAPs seems higher and more standardized,  so does their facility and homogeneity in using particular tropes, approaches, strategies, and so on in their scholarship, their presentations, their FAR forms, their interviews, etc. Is this a result of what they are learning from the directors of these programs, or individual faculty mentors? Or is much of it the product of horizontal exchanges of information (and lore)?   

4) Is there any point in doing a fellowship or VAP at a school beyond the top five or ten schools? Is there sufficient justification for having a fellowship program at such schools? Again, I'm answering this question, not presuming an answer. I can speak on the level of experience about how terrific some colleagues who came from fellowships outside the top five schools have been. Nevertheless, hiring rates from those programs are surely lower than from the top schools, and whether a VAP program at such a school provides serious training, mentorship, and so on will surely vary by school. Of course the choice is up to the prospective fellow, who is an adult with a law degree and everything. But it's equally true that such a school could tally up the outcomes and evaluate the depth and quality of its program and decide it's not worth it, or not fair to would-be fellows, to maintain it. If they do maintain it, do the directors at such schools give fair warning to prospective fellows that hiring outcomes go down outside of the most recognized VAP or fellowship programs? 

5) Do top fellows and VAPs over-place their work? If so, how and why? This is another potentially impolitic question, but one on which I have heard plenty of sotto voce consensus. It is true both that the quality and the placement of articles from the candidates I have seen over past 15 years has climbed significantly, but I think the latter is more true than the former. To be clear, I am not speaking ill of the quality of the pieces I am reading by fellows and VAPs; as I said, I think their average quality level has skyrocketed and that the fellowship/VAP process has much to do with that. I would nevertheless suggest that their average level of placement seems to exceed their average level of quality and contribution. (Coming up with a new bottle for old wine, or a new label for an old bottle, has its uses but is not a deep contribution.)

Would the directors agree? (I imagine they would not, or wouldn't say so if they did. But there's no harm in asking.) What role do they, or individual faculty mentors, play in article placement for fellows and VAPs under their care? Some? None? A great deal? Should they play any role in helping their fellows with placement at all? I see excellent reasons why the answer should be no, other than advice about how best to write and frame an article and even about how best to play the placement game (although I hope they include some skepticism about that game along with their advice). I think that directors could (must, really) at least be candid about saying whether or not they or other faculty members help push or place articles. But I no longer assume that they are the sole reason. Coming from another country, I did not fully participate in the networks of elite social capital when I was beginning my career in the US or in legal academia. I certainly benefited from some of that, but I didn't have the same level of network and really wasn't aware of much that goes on--and still am not, for the most part blissfully. How much does placement for fellows or VAPs at top law reviews depend less on their program (except as a basic credential that law reviews can use for plausible justification) and more on the individual fellows' past or present acquaintance with the student editors at those journals, through law school, clerkships and clerk networks, undergraduate institutions, and other elite small-world factors? If that's what's going on, it's another excellent reason to question the law review system (and perhaps the United States) as a whole, but not something I'd lay at the feet of the programs and their directors. Still, I'd like to know more. I hate to assume anything in this area without knowledge, and it's precisely knowledge that is in short supply, or kept under wraps rather than made utterly transparent. I will add again, lest I be thought too rude in asking this question, that I have heard more than a few professors suggesting that a number of recent articles by elite fellows seem clearly overplaced, even if they are good, and certainly polished, articles. Doubtless they could all be wrong, and doubtless many of them would disagree about which articles are or aren't overplaced. But it seems odd for this observation to be simultaneously widespread and not publicly discussed.     

6) Do elite fellowship and VAP programs challenge questionable versions of "meritocracy," improve them, or entrench them, or some or all of the above? One of the advantages of these systems--at least if they are fully and generously funded, and even then one must factor in those potential candidates whose family commitments in particular places may make them less willing or able to take on a fellowship or VAP--is that it relies less on the "old boy" network (which can still be an old boy network even if it extends beyond boys) under which Dean A at Law School taps Student B on the shoulder and destines him or her for a teaching job. That was the older system, and one finds constant reference to it in the memoirs of or histories discussing mid-century law professors of note. There is no doubt that along some lines, the fellowship/VAP system is more diverse. Of course, a system in which no fellowships existed but we did have a meat market could also result in diversity of hiring, but one advantage of the fellowship system--here I'm focusing on this as a plus rather than a minus--is that it teaches some promising people some of the vocabulary and polish that others imbibed from professor parents or other sources of relevant training and social capital. Do elite fellowship directors seek out such students, or concentrate on those who already have that social capital and just polish them up a little more? (See question 2 above.) Do they look for socioeconomic as well as other forms of diversity? Do they look for ideological diversity, including giving serious weight to clerkships or legal work experience for judges or groups that don't have the cachet of certain other judges or groups? Do they do the same when it comes to the hiring process? I have noticed that some fellows who take slightly more heterodox or unpopular positions on hot-button issues have placed extremely well while still fellows, but fared less well at the hiring level. That difference also means that once they're berthed at less prestigious schools compared to those at which their more orthodox fellow fellows (pardon me) have landed, articles of comparable quality will place more poorly depending on where a fellow has ended up. Again, I don't lay that at the feet of the directors. But have they noticed this--and if so, have they worked to counter it? Ultimately, is the fellowship/VAP program a way of countering the usual reproduction of hierarchy, a way of keeping it but making it fairer and more equitable, or a way of modernizing the same old phenomenon and dressing it up in more respectable garb? Is this something that the programs, their directors, and their schools think about, worry about, and discuss?

7) How can fellowship directors cultivate a knowledge of--and an interest in on the part of prospective professors--a wider spectrum of these United States? One potential problem with a reproduction of hierarchy system is that both its senior and its junior members can be caught up in a closed loop of limited life experience. To exaggerate, a person who grows up in Brookline, shuttles between Cambridge and New Haven for his or her education, and then briefly lives and works in New York and DC before returning to Cambridge or New Haven for a fellowship may lack a more comprehensive knowledge of what possibilities lie outside that rather parochial experience. And if that person's mentor has followed the same arc, traversing the spectrum all the way from A to B, the problem is compounded. I have encountered fellows for whom the idea of teaching outside about ten schools and four cities was seemingly far from their experience, and fellows who told me about rather narrow advice they were given by elite mentors about where to teach. Do directors of these programs make an effort to learn about law schools across the country and pass on what they know? Do they encourage their fellows to think beyond a short list of schools or cities? Do they feel they know enough to do so, or that their colleagues who serve as mentors do?

I'm sure others can and will come up with other questions, but this is certainly a start.  

 

Posted by Paul Horwitz on May 17, 2019 at 05:08 PM in Paul Horwitz | Permalink | Comments (12)

Wednesday, May 08, 2019

A Few More Details on Kavanaugh and "Empathy"

I was spurred by Howard's post below, and the interesting comments on that post, to go through transcripts of the Kavanaugh confirmation hearings. It's hard to search for synonyms for (some form of) "empathy," such as, in Boolean-speak, "listen /s others." But I did search for "empath!," "civility," "discourse," and even "listen /s others." On a whim, I searched for "shoes"--which was actually a fairly productive search!

The search results are decidedly imperfect. I encourage others to do a better job. (I certainly did not watch or listen to the hearings in real time, and others might draw on their recollections, and then follow up to correct the inevitable errors in their memories.) But here's what I found:

1) "Empathy" comes up several times in the confirmation hearings. At least two friends of Kavanaugh's who testified spoke about Kavanaugh as empathetic, and one told the committee she believed Kavanaugh "has exposed himself to a wide range of people" from "a variety of backgrounds," and that he would "listen empathetically and hear their voices."

2) The number of senators I found discussing empathy is extremely small and exclusively Republican. The most prominent discussion comes from Senator Sasse. He criticizes popular invocations of "empathy" as a desired judicial quality, arguing that Congress "constantly abdicates its responsibility" to listen to, represent, and correct the concerns of citizens, and that calls for judicial empathy often amount to a call for the judiciary to do what Congress so often fails to do. He argues that the role of a judge is not "to exercise empathy" but "to follow written laws."

3) A search for "shoes" actually yields several interesting results. Kavanaugh talks at the hearings about the importance of "standing in the shoes of others," and understanding that we could each be homeless or disadvantaged. Kavanaugh also mentions his mother's judicial career as a major influence, and says, "She taught me that good judges must always stand in the shoes of others." One of the supporters I mentioned earlier discusses receiving advice from Kavanaugh during law school about the importance of standing in the shoes of others and "understand[ing] the issue from all points of view."

4) This search also yields a colloquy, again with a Republican senator. This time it is Senator Graham. He asks Kavanaugh, who has spoken about standing in the shoes of others, "Is it fair to say that your job as a judge is to not so much stand in the shoes of somebody you're sympathetic to but [to] stand in the shoes of the law?" Kavanaugh replies, "You're in the shoes of the law but with awareness of the impacts of your decisions....That's the critical distinction. You can't be unaware. When you write an opinion, how's it going to affect people?" He then emphasizes the importance of explaining oneself in a judicial opinion in a way that is not too full of oneself as a judge but rather makes an effort to show the litigant that one understands his or her situation.

5) A search for words like "civility" and "discourse" yields a lot of irrelevant results and a few relevant ones. The most relevant example is this statement from Kavanaugh: "I think civility and collegiality help make a good judge. A good judge understands that real people are affected in the real world."

Again emphasizing the imperfection of the search strategy and my willingness to be corrected by better research, I would make the following observations, which I offer neither in support of nor in criticism of Howard's post or of either Kavanaugh or his (stated or revealed) approach to judicial decision-making, but to offer additional details to Howard's post and perhaps lend further perspective:

1) Kavanaugh's discussion of something like "empathy" at the circuit conference was not new. He made the point about the importance of standing in the shoes of others several times during the (widely publicized and televised) confirmation hearings, and emphasized--as others discussing judicial empathy have before--the importance not only of listening to and attempting to understand others, but of attempting to explain one's decision to the parties, and perhaps especially the individual and/or disadvantaged litigant, in a way that may go for or against the legal claim involved but shows that one understands the litigant's perspective.

2) There was very little discussion of empathy on the part of Republican senators. This might support Howard's question whether some Republican senators (insofar as they are part of the incredibly broad and non-specific group Howard is implicitly discussing: people who opposed Obama's use of the word "empathy" and/or those who think of Kavanaugh as "the darling of the Republican judiciary") don't care all that much about the use of a word like "empathy" as such. On the other hand, Kavanaugh himself speaks in terms of standing in the shoes of others, not in terms of empathy. And at least one Republican Senator (Sasse) directly and critically addressed the idea of judicial empathy, while another (Graham) asked about it and put forward a critical distinction between standing in the shoes of others as a judge and "standing in the shoes of the law," to which Kavanaugh's response signaled partial disagreement or at least clarification: namely, that a judge. ought to stand "in the shoes of the law" but with awareness of the impact of one's decision on people in the real world.

3) I could find no Democratic senators addressing any of these points in the hearing transcripts. That doesn't mean no one did; it just means I couldn't find any evidence that they did in my rather limited searches. I found no Democratic senators referring to and praising Kavanaugh's discussion of standing in the shoes of others, none criticizing it, and none engaging in a colloquy with him about it, perhaps to clarify what he meant by it and how it would work in his judicial decision-making. This might support a similar proposition to the one Howard speculated about. It might suggest that support for "Obama's use of the term" was fair-weather support, not a matter of deep interest or "grounded in principle." Or it might not. Democratic senators on the Judiciary Committee are a tiny subset of the indistinct and undefined group of people who supported Obama's use of the word empathy, and should not lightly be assumed to be representative of that wider mass of people. They are also political actors, who might agree with or approve of what Kavanaugh said on the subject at the hearings but not say so publicly, for political reasons. If that is seemingly not a response that is "grounded in principle," neither does it prove that they have no principled interest in judicial empathy. (But that would suggest, by the same token, that there might be Republican senators on the committee who disagreed with Kavanaugh's perspective, and have what is indeed a principled opposition to that view, but said nothing, again for political reasons.).

I don't know whether this changes Howard's view. Since he spoke speculatively, if perhaps suggestively, I won't assume he has a strong or settled view on these questions. I am disinclined to lump large masses of people together, and thus disinclined to assume based on limited evidence that all Republicans or all Democrats (a grouping in which, in truth, I have very little interest) share the same view, that all people who have spoken about judicial. empathy have the same view, or that speech or silence from any one individual within this vast group indicates much if anything about the views of others within that vast group. Such an approach seems to me to lack empathy, among other problems. So I would probably worry about the last two paragraphs of Howard's post with or without this additional research.

But I would hope the research does add a little extra depth to Howard's discussion and speculation. Perhaps it will move him to second-guess or deepen his speculation. Perhaps it will also convince him that the question about the presence or absence of principled views on judicial empathy extends beyond opponents of that word or concept, and includes its supporters, who also should be subjected to critical inquiry. 

In my view, a tentative set of propositions that combines a certain amount of both charity and realism would be that there are indeed those who, on principled grounds, are supportive of or opposed to the idea or label of judicial "empathy"; that there are nuanced differences among them about what empathy entails and what role it plays in judging; that in the heat of the moment, many of those people--particularly but not exclusively elected officials--will not speak about empathy at all, favorably or critically, if it is politically inconvenient to do so, which may suggest not a lack of principle (although that's a possibility) but a lack of fortitude or integrity; and that a very small but not non-existent number of people will do so.

As I said, the research was tentative and incomplete, and so are these propositions, although they seem reasonable enough. And I emphasize again, given the difficulty of having disinterested and academic discussions in a rather politicized era, including doing so among legal academics, some of whom may inadvertently overestimate the importance of their public pronouncements about these issues and/or succumb to a tendency to reduce a discussion to the politically relevant but intellectually shallow question whether one is "for" or "against" someone or something, that none of this should be taken as indicating either praise for or criticism of Kavanaugh, or as assuming that what a judicial nominee--or a senator!--says or doesn't say on a public occasion is strong evidence of what that person believes, cares about, or will actually do in practice. 

Posted by Paul Horwitz on May 8, 2019 at 09:34 AM in Paul Horwitz | Permalink | Comments (1)

Monday, April 15, 2019

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

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

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

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

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

Here's the abstract for my piece:

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

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

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

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

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

 

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

Monday, April 08, 2019

"Honor, Oath, and Office"

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

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

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

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

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

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

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

Thursday, April 04, 2019

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

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

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

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

Friday, March 22, 2019

"A Grimace and a Shrug"

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

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

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

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

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

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

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

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

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

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

 

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

Tuesday, February 05, 2019

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

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

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

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

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

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

Monday, February 04, 2019

The Upside of YA Literature's Internecine Warfare

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

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

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

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

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

  

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

Tuesday, January 22, 2019

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

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

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

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

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

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

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

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

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

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

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

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

 

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

Wednesday, January 16, 2019

A Good Start?

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

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

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

Tuesday, January 15, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

Saturday, January 12, 2019

Moyn and His Critics on Law Schools and Democracy

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  

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

Wednesday, January 02, 2019

Happy (and Crabby) New Year, Canadian Edition

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

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

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

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

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

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

Wednesday, December 19, 2018

CoOp and Prawfs, Blogging and Twitter

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

  

Posted by Paul Horwitz on December 19, 2018 at 12:36 PM in Paul Horwitz | Permalink | Comments (25)

Friday, July 20, 2018

Marquette Law Review Symposium on The Ethics of Legal Scholarship

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

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

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

Here is the table of contents for the issue:

 

  

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

Monday, June 18, 2018

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

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

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

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

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

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

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

 

 

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

Wednesday, May 23, 2018

On Diversifying Academic Panels and Conferences

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

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

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

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

Wednesday, May 16, 2018

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

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

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

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

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

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

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