PrawfsBlawg

The Ethics of the Justices--and Their Honor

The New York Times story on the books of the Justices serves as a nice occasion to voice something that has frustrated me about the recent discussions of the Court and the conduct of individual justices. There are good reasons to subject lawyers and judges to ethical codes, of course. Not least among them is that they provide (relative) clarity for insiders and outsiders alike. But a less good reason, at least as I see it as a Canadian let loose in the U.S., is the endless American habit of turning moral and political questions into legal ones, and vice versa. The result, all too often, is that a value or course of conduct that's not codified isn't taken seriously, and if it is codified it ends up being treated as a full and adequate account of one's obligations. (This general point generated a lot of legal scholarship about constitutional and political "norms" starting around 2016, although scholarly interest in the subject seems inexplicably to have waned in the last three or four years.)

I'm not opposed as such to codifying and/or strengthening the ethical rules that apply to Supreme Court justices. But inevitably, not everything that constitutes honorable conduct by a Supreme Court justice can or will be codified as an ethical rule. Indeed, not everything that constitutes honorable or dishonorable conduct by a judge or other office-holder should be codified as an ethical rule. And there are a lot of things that we might generally agree fall within the proper scope of official ethical conduct but are dishonorable. Of course we will disagree about what constitutes honorable conduct by an official, just as, even with an ethical code in place, we disagree about what conduct falls within or outside that code. Under our current system, for instance, absent specific circumstances it is ethical for a justice to serve for a very long time. But it is arguably not always honorable, even absent scandalous motives or actions.

Our usual focus on the official ethics of office-holders, rather than on what constitutes the honorable or virtuous path for such officials, leads us either to end the discussion once we've argued the official ethical question to death, or to seek some legal hook or official "scandal" to say what we could say more easily and directly in honor language: that some way of acting, permissible or not, is wrong, a discredit to the office, and should be criticized. The legalization of the discussion tends to lead to a false binary debate, conducted by the usual online debating societies and so-so journalistic commentators, in which something is, as it were, either a legal violation or a "nothing-burger."

Judges do inhabit an honor culture and form part of an honor group, consisting at the least of both their judicial colleagues and other participants in the professional legal community. It would be nice if more of our discussion explicitly discussed not what is ethical for judges, but what is honorable or virtuous. The dubious support of Richard Painter notwithstanding, I doubt it is either unethical or dishonorable to host a pay-your-own-way Christmas party with your former clerks. I don't think it's unethical per se for a justice to write a book--even a clearly mediocre or unnecessary one, which is generally the kind of book Supreme Court justices write. (To his credit, I think the kinds of books Justice Scalia wrote while on the bench don't fall into this category. Opinions will differ as to their quality, and I have no idea whether he was paid an unreasonable amount for them, but they struck me as serious books for people interested in law. One might say the same thing about Justice Breyer's books, although, again, I don't know whether he was paid an appropriate amount for them. I am frankly and perhaps--albeit unapologetically--snobbishly disinclined to view justices' memoirs, or collections of generally vapid speeches, in the same light.) But I doubt it is honorable to engage an agent to negotiate a large advance for such a book, which almost inevitably will be watered-down pablum (even justices, after all, are expected by major publishers to justify the size of the advance), and which the prospective author knows will be pablum, and then to hawk it up and down the country. It's ethical for justices to talk about wanting to beat the record for the length of a Supreme Court tenure, or wanting to serve a long tenure to show the people who opposed their nomination that they're staying put, and to serve accordingly long tenures. But to actually engage in that conduct is dishonorable. (I say again, in a reversal of the usual phrase, "More Souters." Nineteen years is an honorable span of time to sit on the Court--and the shortest complete tenure in recent memory.) 

I don't mind the ethics debate as such, although its quality is, to say the least, variable. But there's a lot more room for honor or virtue talk when considering these questions. I would like to see more of it, especially from the justices' honor group, which includes lawyers and legal academics. It would be nice if (where this fit one's views) we saw more public discussion in which one says, about a justice whose votes one favors, that their conduct is ethical but dishonorable, and that their compliance with official ethical requirements doesn't render it any less so. We should expect much more from holders of high office than just following the rules. 

Missing From the American Coverage of the Israeli Judicial Reform Controversy

The headlines from the New York Times today put the matter succinctly: "Israeli Parliament Passes Contentious Law Limiting Judiciary." "Protest Movement Spurred by Legislation Vows to Fight On." The U.S. coverage of the controversy is entirely Israel-centered, understandably enough, with some discussion of how the controversy is affecting U.S.-Israeli relations. The overall bent of the coverage in the kinds of mainstream, politically liberal legacy press I read for my basic news is critical of the changes and of the Netanyahu government, and describes the battle as one in which "Israel's identity hangs in [the balance]."

What surprises me about all this coverage is how much the story has been treated as purely unique and internal to Israel, except in the sense of its impact on US-Israeli relations, and how little, if any, of the coverage has treated it as relevant for American debates over Supreme Court reform. One may remember that that issue was important enough to some constituencies in the 2020 election that it forced then-candidate and later President Biden to provide the official, time-honored sop of a blue-ribbon commission in order to quiet them down; that the issue certainly did not die down after Dobbs; and that it continues to fuel interesting proposals from important, albeit non-influential, corners of the party. Although the Supreme Court ethics movement and related coverage strikes me as more purely and immediately strategic, targeted, and partisan (which is not to say there's no "there" there; just that whether there is or not is not really the point for many newly enthusiastic groups and individuals), it is of course tied to the longer and larger debate. So you would think there would be a lot more connecting of the dots when an entire country is currently convulsed by actual legislative movement in the direction of judicial reform. (I use "reform" for convenience, setting aside debates over the best term to use.) 

I would think that such coverage and commentary would be interesting in part because it could fuel self-subversive thinking and realignment, pushing reporters and editors out of their customary schemas. One could imagine a story taking a positive angle on the Netanyahu government's success (on the assumption, obviously true, that most mainstream news reporting in the major papers has an angle), on the view that it shows that it is possible for government to succeed in altering the balance of power between the judicial and political departments. Or one could imagine a story taking a more wary or negative view of the Israeli protesters, either because they are interfering with what in the U.S. would be (for some) a cherished goal, or because they demonstrate how many levers those who resist such reforms might push, including some that might offer legitimate cause for concern or criticism. (Given longstanding discussions of the relative partisan skew of the membership of our armed forces, one might think that the threat of Israeli military reservists to stop serving if the Israeli judicial reforms passed would be of special concern here.)

But one doesn't have to imagine any particular angle or story to think the Israeli experience might simply provide interesting food for thought in the context of stories about American Supreme Court reform. Coverage of Supreme Court reform here, when it discusses public opinion, tends to do so at a crude level, asking whether a majority supports some reform or other but not talking much about the intensity of support or opposition or distinguishing much between bare and overwhelming majorities. In the case of Israel, President Biden has urged that for "significant changes" of the sort represented by the Israeli reforms, it is "essential" for the government to achieve "the broadest possible consensus" before moving forward. Surely that view is relevant to the ongoing American debate, and can be the subject of agreement, disagreement, and analysis in the context of American Supreme Court reform. (That view, I should add, seems consistent with the relatively hands-off, low-priority approach Biden has taken to the issue domestically.) If Congress had a majority favoring some arguably constitutionally permissible change to the structure of the Supreme Court and its relation to the political branches, and if, say, 56 percent of the public favored such a change, would it be proper, or precipitate, to go ahead with it? If American soldiers, reservists, or government employees threatened to resign en masse if the change were passed, would that sort of pressure be legitimate or illegitimate, praiseworthy or blameworthy?

I don't, of course, mean to suggest that the Israeli experience maps on to the United States experience with any exactitude. Nor do I mean to suggest there has been no such coverage. That can't possibly be the case. But if it had been even mildly present in the standard mainstream American coverage of developments in Israel, which has been voluminous, it would have been much easier to spot--and I cannot spot it, at least in the major papers and even in their opinion sections. It's a missed opportunity for interesting perspectives on and coverage of both the American and Israeli debates over the judiciary. It's also a rather bizarre absence, even if one takes into account the siloing of domestic and foreign coverage in American newspapers.     

"Powerful dissent:" the "coruscating guitar solo" of Supreme Court commentary

On the "powerful dissent" question, I would point to two sources to help better understand the phrase, other similar phrases, and their role, which I think of as lying somewhere between actual communicative effort and clearing one's throat, with a heavy added element of demonstrating the writer's status. The first is this glossary by Derek Muller, which helpfully explains "the jargon that usually accompanies Supreme Court analysis."

The second, a little further afield, is a wonderful book, The Rock Snob's Dictionary: An Essential Lexicon of Rockological Knowledge. Although a good deal of it is simply a helpful guide to things and people, often arcane, that rock snobs like to invoke (e.g. Van Dyke Parks, the Nuggets anthology, gated reverb), it also offers helpful information about the kinds of cliches that have been a staple of music critics' writing for years: "Seminal," "angular," "coruscating," and so on. (Co-author David Kamp provides a similar service for film snobs in another fine book.) As Michael Azerrad writes of rock cliches, such jargon "can make a writer feel authoritative—and it can also fool some readers into thinking the writer is authoritative." (The quote is from a book, but the link is to an article about Azerrad in Slate--appropriately enough, since Slate's house style is the confident assertion of dubious authority.) But it can also become mere habit.  

Is the guitar solo actually "coruscating" or "liquid?" Is the song truly "plangent?" Was that concert the writer attended really "incendiary?" Who knows? Sometimes even the writer doesn't. In many cases the writer thinks something like that is true, and is trying to get a sincere message across. Very often, they want to sound as if they have reached a firm judgment, and impress or cow the reader with that fact, even (or especially) when they clearly lack the wherewithal to assert such authority. But often enough this language is just a reflex, like coughing, or a sign of laziness.

"Powerful dissent," like the phrases listed in Derek's glossary, is basically that, but for "Supreme Court snobs"--those whose getting and spending of cultural or financial capital consists of the frequent delivery of evanescent popular or academic commentary about judicial opinions and other legal developments. Such phrases should not be assumed to be dishonest or esoteric. Those who use them may be banal but sincere. These cliches' role in asserting authority, both to overawe the reader and to get ahead in the writers' own status competition, should be noted, and both the authority and the opinion should be treated with skepticism. Beyond that, though, these phrases generally should simply be ignored, and writers should generally omit them.   

What Does it Mean to Be "Totally Misrepresented?"; With a Note on "Beyond the Scope"

Journalist Allison Stewart writes to complain about being cited in Justice Thomas's concurrence in SFFA. She writes that Thomas, who cited her book about Dunbar High School, engaged in a "misreading of Dunbar's legacy." She shares the words of an acquaintance who sent a text saying that Thomas had "totally misrepresent[ed] your work."And she writes, "I, too, was appalled that a book I’d written about the impact of education was used to uphold the Supreme Court justice’s anti-affirmative action argument. We are in a sad moment when cherry-picked information now passes as fact."

Two points about this. First, Stewart's heartfelt article does not, in fact, show that Thomas "totally misrepresented" her work. The passing citation comes in a footnote supporting the general argument--one that represents one of many points of common ground between Thomas and Critical Race Theory scholars and Black nationalists--that Black schools and other Black institutions can be places and sources of independent achievement and success. Thomas takes Dunbar High School as an example, primarily citing Thomas Sowell's work. He writes, citing Stewart's book, "Dunbar produced the first black General in the U. S. Army, the first black Federal Court Judge, and the first black Presidential Cabinet member."

Stewart does not contest the accuracy of the citation; for that matter, she agrees with Thomas that "Black students can achieve." Hence the necessary line about "cherry-picked information" passing "as fact." Even that is inapt. The information may be cherry-picked, but it is fact. Stewart's line would be more a propos if, say, one took statistical data about the effect of a virus on various populations and used it to propound a false factual claim about that virus being "targeted." In this case, however, citing Stewart for the purpose of noting a historical fact about Dunbar's alumni is no more "cherry-picking" as such than it would be to cite a book about the Black Plague for its statement about the number of people estimated to have died of it in 14th century Europe, even though that book is primarily concerned with the social and literary sequelae of the epidemic.

Stewart's actual complaint, it seems, is not that Thomas misrepresented or distorted her work, but that he cited it in the context of an opinion criticizing affirmative action, which Stewart supports. She is entitled to disagree with him, as anyone is, and one can understand her being discomfited or dismayed by the appearance of her book in his concurrence. But I see no misrepresentation.

That point would be barely worth making, were it not for two things: 1) the generally poor level of scrutiny of arguments that support one's own views, such that one can guarantee that Stewart's line about misrepresentation will be both widely shared and quickly inflated into a confident claim that Thomas engaged in falsehood or misstatement; and 2) the degree to which "you misunderstood my work" has itself become a kind of strategic accusation, like arguments about illegitimacy. I do not accuse Stewart of doing this. Nevertheless, I assert that strategic moves of this sort are both relatively frequent and more worrisome for contemporary trust in "fact" than anything involved in Thomas's passing citation of Stewart's book. (Building on other parts of her essay, Stewart might have developed a stronger argument that Thomas's denial that many people contribute to success, and that children deserve support and investment, is a more direct misrepresentation of her work. There are two problems with this, however. One is that it is false; Thomas denies neither proposition. The second is that the point is orthogonal to the question whether that support and investment should come through affirmative action in higher education, or through other means.)  

The other point is that while journalists and scholars are free to dislike it when someone whose policy views they disagree with accurately cites their work, just as artists are free to dislike it when someone they loathe likes their art, and all of us have experienced this in cases that don't involve actual misrepresentation, this kind of thing is a necessary element of good scholarship, just as it is of good art. At least outside of the harder sciences (and possibly there too), and apart from highly narrow factual claims, good scholarship can never guarantee a single set of implications or conclusions, policies or policy consequences. It always leaves open spaces and gives hostages to the future. My own view is that the best scholarship and journalism not only doesn't seek to avoid this: it steers into it, willingly acknowledging and exploring the ways in which the author's findings and recommendations might have perverse or undesired (from the author's perspective) or unexpected consequences, or raise questions about the larger implications of and tensions created by that work. 

One interesting and occasionally dispiriting way to figure out whether legal scholarship meets that standard is to examine the "beyond the scope of this article" footnotes that inevitably crop up in modern articles. One can ask of these notes: Is the question beyond the scope because it exceeds the author's expertise, or because it is not germane, or for some other clearly valid reason? Conversely, is the excluded question clearly germane to the article and clearly within the scope of the author's expertise--but likely to raise unwanted or uncomfortable questions, or make the author's normative claims less attractive? If so, does the author at least give the reader enough detail about what is being excluded, and why it might matter, that the author's refusal to address those questions neither misleads the reader nor prevents the reader from judging the author's refusal? If not, we may be seeing an instance of an author strategically attempting to direct and manipulate the shape and reception of his or her scholarship in a way that, on some core level, renders it a failure as scholarship. Like the novelty claim, the "beyond this scope" note is an essential clue in the critical, rather forensic reading of legal scholarship, a rug under which all manner of dirt may be swept. 

Another Blow Against "Preferred First Speakers"

From Paul Caron, this news of a successful effort to speak loudly and visibly at the same time as an event that was also and, technically, I guess, solely scheduled to take place at Harvard Law School. The alternate speakers preferred to talk about HLS professor Jody Freeman not talking and, still more specifically, how she must be fired immediately. The specific speech goal of the non-preferred-first-speakers, based on their communications, was not so much to continue speaking indefinitely-but-simultaneously with Freeman, but to "storm" the event and prevent it from taking place. This blow to the bullshit of civility came courtesy of a group called Climate Defiance, a group whose imagination appears to run the contemporary gamut from A to C--speech disruption (or simultaneous-opposite-speech, if you prefer) in the service of laudable and relatively non-specific goals, being really really active on social media, and asking for money. Also supporting the no-platforming counter-speech, if I read the reports correctly, was Extinction Rebellion Boston, which plays essentially the same trifecta and is connected to the inestimable English group Extinction Rebellion, whose founder holds that most valuable of degrees for such activities: a Ph.D in "digitally enhanced political resistance and empowerment strategies." I suppose Climate Defiance could have used the Q-and-A to raise the question why Freeman has not been fired yet, but one imagines that it is not keen on phony procedural niceties of this sort.

I take no position on whether Freeman's conduct is outrageous or on whether the issue of climate change is urgent enough to demand spectacular extra-procedural action. That seems quite beside the point. If the protesters had closed down the event and demanded that Freeman be fired out of anti-Canadian animus or pure sexism, or because it thought her article on agency coordination in shared regulatory space had been unfairly allowed to exceed the usual word limits, or because it thought she was actually this American Ninja Warrior, I don't see how they would be in a different position or have had a weaker justification, equally-preferred-second-speaker-wise. 

 

Transference, the Classroom, and the University

I wrote a while back that it would be nice--for us and for readers, and in service of the avoidance of the tedious topic and downward spiral of politics--if, despite our aging status, we posted more at Prawfs about the life of the teacher (and scholar, and renderer of institutional service), which was one of the raisons d'etre and main themes of Prawfs in its first years. On the one hand, we were particularly suited for that topic at the time because we were experiencing it from the ground up; as more senior professors, we are more secure, more complacent, and perhaps more forgetful. On the other hand, as senior professors, we are in a position to write about what we got wrong or misunderstood as junior professors (and what junior folks often may misunderstand or exaggerate as they go through the early career process)--and we are also in a position to write frankly and without regard to consequences, which is how professors should write anyway, at every stage of their careers. So here's a post on that topic. Via The New Yorker, which occasionally manages to surprise, here is a nice piece on "transference and the contemporary classroom."

The author, Merve Emre, notes the long history of connecting the psychoanalytic concepts of transference and counter-transference to the teaching relationship, the relatively brief period in which the "erotics" of that relationship (without necessarily having a specifically sexual connotation) were a frequent and fashionable subject of discussion, and the "uncomfortable climax" that this approach to the subject reached with the Jane Gallop affair, as well as the movements and necessary discussions of the past decade, which combined to put the kibosh on discussing teaching in those terms. (Here is a 2020 piece by a French [naturellement!] philosopher on the general subject.)

Emre's particular interest is in transference: how it continues to function even after we have criticized and dispensed with or sublimated the "erotic" element in favor of other models of teacher-student relationship in higher education. She writes:

Transference, then, is the baby that got thrown out with the bathwater of “the erotics of the classroom,” once that water became thoroughly sexualized and thus taboo. To reinstate it as a useful way of understanding what occurs on campuses requires recognizing what the arguments above do not: that, for the vast majority of teachers, the affective feelings of the classroom are not experienced as romantic, let alone sexual, desire. Those who teach know the variety of roles we can be conscripted into—mother, father, sibling, best friend, therapist, priest, idol, nemesis—just as we know, or at least sense, which of these roles we are willing to play at different moments in our lives, which fantasies of love we will honor and which we will deflate, ignore, or reject. I remember when my former dissertation adviser predicted that, once I had children of my own, I would no longer feel energized by acting as a foster mother to my students. She was correct; now I feel a shudder of unease when a teacher reveals, almost always on social media, that she has baked something for her class, or that she has accommodated an abnormal number of absences or late assignments, in a magnanimous gesture of “care.”

In casual conversation, especially during the pandemic, the emergent discourse of “care,” as a friend suggested to me, has emerged as the positive transferential counterpart of the negative language of “harm” and “trauma.” The teacher’s declarations of care are, at once, a way of soliciting transference-love from her students and a way of permitting herself to respond in kind. Unawareness of transference as a concept means that the teacher can remain not just ignorant of what she is doing but proud of it—of wanting to love her students and to be loved by them in return. Here, countertransference works to mask and to compensate for the disproportionate care work performed by so-called Professor Moms, whose performance of support and service disadvantaged them in assessments of their productivity.

But Emre's goal is not to rest with the basic point that "Professor Moms" are under-compensated for their care--a perfectly valid point that one sees played out in law schools and elsewhere--while leaving in place the assumption that a "care"-based vision of the student-teacher relationship is a good one. She questions that model, and suggests that "the psychological dynamics at play between teachers and students" are at work in many recent campus controversies that we see primarily as free speech or culture-war issues. In the case of Erika López Prater, for example, the adjunct professor who was fired for showing a picture of Mohammed in a global art history class, she suggests that too little attention was given to the complaining student's suggestion that a professor "is supposed to be my role model," a claim she sees as moving but not necessarily correct or without peril. She concludes:

To adjust our language to account for transference could be the first step toward a collective act of growing up. Adjustment does not involve rejection or scorn. It is easy to mock the language of harm and violence, or to dismiss it as “woke.” What is more difficult is to craft an alternative language—a language that refuses to negate the real feelings of dismay that arise when authority figures fail to live up to the fantasies or expectations projected onto them, but that also refuses to describe this failure as an act of violence, or to treat it as a punishable offense.

I don't end up in precisely the same place as Emre, but that's hardly reason not to recommend the piece. It is frank in discussing the ways in which transference and counter-transference, their complexities, and their emotional weight and consequences continue to play out in the classroom, even if we dispense with the language of erotics in favor of one of "care" or "trauma" or similar terms. My own view--consistent with hers, I think, if pitched in a different direction--is that a recognition of the needs of students does not preclude questioning seriously and critiquing any vision of the adult classroom that envisions it as a caregiving or familial space rather than a professional one. Treating it as a professional space cannot mean pretending that questions of care, or of erotics for that matter, disappear from it. They don't. Treating it as a place of care and family, on the other hand, should not preclude recognizing and confronting how dangerous, potentially explosive, and possibly misplaced that language or sensibility is in the classroom--for teacher and student alike. 

The same dynamic is at play in the larger institutional context of universities. I remember arguing with some professorial friends a couple of summers ago about whether it is sound for universities and their presidents, in the statements they so love to offer at fraught moments, to call the university a "family." The air was full of statements about the university "family" that summer. Of course one can argue that the choice of words, as in most official statements, is more or less meaningless, as all statements and press releases arguably are. I don't think it is, if it reflects an actual mistaken vision on the part of administrations. But in any event, we were not arguing on these grounds, but rather about whether the university can be said to be a family. They thought it was correct and utterly natural; I thought it was mistaken and dangerous. A postscript: They were wrong; I was right. Only a family is a family. A university is certainly an institution. And a university can be a "community," whose members' roles and mutual obligations are very close but not familial. But it is not a family, and--as Emre suggests--many campus controversies can be said to involve the perilous and counter-institutional dynamics that arise when it is treated as one. Families deal with controversies in one way; institutions in another. And adopting and trying to follow the dynamic of university as "family" is particularly dangerous--again, for students and teachers alike, as well as for universities as institutions--if, as is too often the case, administrators, for market- and character-based reasons, are weak or cowardly, and thus unwilling or unable to play the backstop role of authority that is necessary in both families and institutions. 

In any event, there's much to be gained from Emre's piece. Enjoy.   

 

On Stirring Once and Letting Sit

The New Republic has been uncontroversially awful since 2014, at the very latest. But I found this article worth a look. It's a book review on a fairly standard topic: arguments over the nature of recipes and their interpretation.

Without judging the book that serves as the review's platform, I cannot say that the review itself says anything original. (I refer to the review below rather than the book for this reason, although some of the points noted come from the book. There are precedents.) Because it's in the contemporary TNR, one has to endure the usual ritual invocation of phrases that play no actual role in the discussion, ie. "the larger inequities that underpin the systems of production," a phrase whose ritual nature is revealed in the very fact that it is intoned in passing. (We are, at least, mercifully spared the "contradictions of late capitalism" portion of the liturgy.) But it nicely lays out some of the basics of this sort of debate: whether one should or even can strictly follow a recipe, how recipes themselves change, how following a recipe itself changes, and the now-familiar, if in this case poorly phrased, point that the recipe is "a text every bit as worthy of serious attention as other forms of academic study."

What I found useful about the piece is that it almost avoids taking sides in the debate, and at least acknowledges the value of the recipe and (relative) obedience to it, and of "the repetition of familiar tasks," as such, alongside the conventional arguments against recipes. It praises the book's author for her "clever critique of psychoanalyst D.W. Winnicott’s dismissive treatment of those who follow recipes" in an essay that "derided the use of recipes as 'slavish,' the antithesis of living creatively." In doing so, it notes that the recipe that formed the basis of Winnicott's critical essay, "in its brevity[,] leaves much open to interpretation." But it doesn't, I think, see that as the core flaw of Winnicott's essay; instead, it focuses on the degree to which Winnicott's "theorizing about what it is to live 'creatively'" ignores the value of following a recipe as "part of a larger dialogue between past and present." Although the review, at least, doesn't fully develop the point, it hints at other lines of argument. Following a recipe, even "slavishly," can be preferable, for both cook and diner, to turning every act of cooking into a search for an allegedly "authentic" or "creative" act (as in the author's enjoyment of the "ethereal quality" of Krispy Kreme doughnuts, which is achieved through obedience, not deviation). Attempting to obey the recipe, and thus to live within constraint, can itself be a challenging, disciplining, and rewarding activity. More than that, the repeated effort to obey a recipe, the repeated performance of "familiar tasks," can itself be enriching, can itself be an ongoing form of "dialogue between past and present," including the past and present of the person engaged in the repeated activity of recipe-following. It can, in short, form and embody a tradition.

The review is also usefully revealing for what it does poorly and rather automatically. The headline is useful here. The oft-given advice to ignore headlines is not quite right. They can mislead as to the content of the actual writing atop which they sit. But they can reveal a lot about the thinking of the headline writer, which may indicate the views of that individual, but can also reveal what the headline writer, and the editor or publisher of that journal, thinks readers will or ought to find interesting about the piece. Even when they are wildly misleading, the ways in which they mislead can thus be worth examining. In this case, the headline is, "The Food Writer Who Wants to Free the Recipe"--a revealingly half-accurate thought, since the review and book are also about the ways in which the recipe can be freeing. In the review itself, there is a reference to cooking as an activity "through which pleasure, desire, and resistance can be expressed," and to the kitchen as "a space where freedom...and desire meet." There are standard words and phrases like "liberating," "subversive," and "blow up." That they appear alongside appreciations of the value of repetition and familiarity and criticisms of the reflexive praise of "creativity" is not a sign of intellectual richness. Rather, it's an indication of how powerful, and almost mandatory in our culture, the myths of "creativity" and "subversiveness" can be. The extent to which the review simply, unconsciously takes it for granted that things like "pleasure, desire, and resistance," freedom, subversion, and so on are positive goods, rather than qualities that can be good or bad, appropriate or inapt, is striking--not just because of what it suggests about the writer, but, again, because of what it suggests about the writer's assumptions about the audience's assumptions. It suggests, perhaps accurately as a view of the magazine's market but certainly revealingly, a level of anxiety about departing from a cultural script that praises creativity, freedom, and "resistance"--even in the context of an essay that argues that these are not the only values worth praising, that recipes are valuable, and that repeatedly following them can be an enriching activity.

It's a short review, and the topic is not new. But it's usefully thought-provoking, both in its acknowledgment of the value of both freedom and obedience, of "creativity" and tradition--and in the discomfort of both the writer and the magazine about the fact that both are valuable. 

University of Alabama Law Hiring Notice

I'm happy to pass along this message from my colleagues and betters:

The University of Alabama School of Law seeks to fill up to five tenure-track positions for the 2024-25 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. Qualified applicants in any of the following areas will be considered: civil procedure, criminal law, torts, property, environmental, business (all sub-fields), antitrust, healthcare, intellectual property, legal ethics, evidence, election law, employment/labor, state & local law, and law & economics. 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.

Salary, benefits, and research support will be nationally competitive. All applications are confidential to the extent permitted by state and federal law. These positions will remain open until filled. Questions should be directed to Benjamin McMichael, Chair of the Faculty Appointments Committee ([email protected]). Interested candidates can apply online at https://careers.ua.edu/jobs/search/law.

Visit UA’s employment website at https://careers.ua.edu/home for more information. The University of Alabama is an equal-opportunity employer (EOE), including an EOE of protected vets and individuals with disabilities.

I will add that 1) I believe the next few years will be an exciting time at my school and 2) the students are really, really incredible. 

A Correction, and a Slightly Different Take, on Roberts's Quote

I have one correction to make about the quote Steve focuses on below, and a slightly different take, spurred less by his post than by a similar conversation I saw earlier this week. My take on Roberts's (full) quote is still ultimately critical, but starts from an effort to offer a more charitable interpretation and see where it leads. 

The correction is simple and, I think, a fair one. Steve writes that Roberts "is displeased with some language in Justice Kagan's strong dissent in Biden v. Nebraska," citing as evidence the quote he excerpts in his post. Maybe he is! But the longer version of Roberts's passage is at some pains to say otherwise: "It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary....Reasonable minds may disagree with our analysis—in fact, at least three do. See post, p. ___ (KAGAN, J., dissenting). We do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country." 

I think a fair reading of the entire paragraph makes clear that: 1) Roberts does think some recent opinions have gone too far; 2) he expressly disclaims the view that Kagan's dissent does so; 3) he believes there is a difference between heartfelt disagreement and disparagement; and 4) he wants to make clear to "the public" that there is such a difference, in order to avoid "misperception." If there is a beef, it is expressly, at least officially speaking, not between "Kagan and the Chief," but between "the Chief and 'some recent opinions' other than this particular dissent by Justice Kagan." (For the same reason, I think that whatever meritorious points it may make along the way, albeit sometimes by way of diversion, this recent piece by Richard Hasen, which omits the "reasonable minds" language and obscures the language about the difference between disagreement and disparagement, is also in error.) 

My own take on Roberts's statement, as I said, is both critical and more charitable; I come neither to praise nor to bury him. My reading proceeds on the belief that when one can manage it, an effort at charitable interpretation can yield more interesting observations--including more interesting critical observations--than one that either makes casual assumptions about the writer's motives or plucks at low-hanging fruit. With due respect to Steve, I think accusations of hypocrisy are almost always the low-hanging fruit in what passes for public debate. Hypocrisy is a virtually universal human vice and, what is worse, an uninteresting one. (On the other hand, integrity is a very interesting and perhaps rare human virtue. Discussions of failures of integrity are similar to accusations of hypocrisy, but there are differences between the two, and the former subject is in my view a more interesting and valuable avenue to explore.)

What might the best version of Roberts's passage say? Not the best reading, as I make clear. Rather, if we were to try to develop the thought, what might it look like? I think it would make two or three kinds of distinctions. The first is between dissents that argue, however strongly, that the majority is dead wrong, and dissents that argue that the majority is, in effect, not even wrong, because it is not engaged in "law" at all, but simply operating lawlessly, by raw power. The second is between dissents that argue that some decision by the majority, however sincerely it was arrived at and in however lawyerly a fashion, in fact falls outside the Article III power of the federal courts, properly understood, and dissents that argue that the majority has deliberately ignored or abdicated its judicial role--that the judges themselves have deliberately cast off any sense of judicial duty in order to assert their power. The third distinction, which is perhaps just a general one that includes the first two within it, is between dissents that criticize a decision as wrong and those that criticize a decision, or the institution itself, as illegitimate.

Of course these distinctions, and the distinctions between the different types of distinction, are not firm in practice; they may not be solid conceptually (I reserve judgment on that question); and they certainly will give rise to differences of view, which no doubt will be heavily influenced by one's politics and jurisprudence, about whether a particular statement falls on one side of the line or the other. But I think they're meaningful despite those concerns.

On this view, it is absolutely fine to argue that a majority is dead wrong. A reading of the full passage makes clear that Roberts agrees. It is also, at least in my charitable reading (but see below), fine to argue that a majority is wrong in its view of the role and limits of the federal courts--that its view is either too broad or too narrow in its understanding of the judicial power. In both cases, there is a distinction between these criticisms and an argument or assertion that one's opponents are wrong not because their jurisprudence or its application is wrong in general or mistaken in application, but because they are simply indifferent to any such questions; that they have abandoned even a mistaken effort to act judicially, and are instead imposing pure will without any trace of judgment, to paraphrase Hamilton.

That is the illegitimacy criticism. This is the focus of Roberts's concern. As I noted, there will surely be differences of opinion about when a court has acted wrongly and when it has acted illegitimately. Among those with some (perhaps too much) immersion in the law and its ways of thinking, those differences will be more thoughtful, but still influenced by one's politics, one's jurisprudence, and, harder to pinpoint but I dare say just as important, one's temperament. Among those with little knowledge of or interest in the intricacies or norms of legal decision-making, the move from thinking a decision wrong to thinking that it, and the institution that issued it, is illegitimate will be reached more quickly, ignorantly, and perhaps carelessly. 

It does not seem unreasonable to me to take such distinctions seriously, even with their imperfections. Indeed, most of the critics I have seen of Roberts's sentence (I won't say "paragraph," because those criticisms rarely quote the whole thing) take those distinctions seriously themselves. They point to one statement or another by some justice--perhaps Roberts, perhaps Scalia, perhaps someone else--that they think falls on the wrong side of the line, and thus demonstrates hypocrisy or irony or some other failing on Roberts's part. (In our fallen, bumper-sticker lingo, I believe this is called "whataboutism" and is generally frowned upon. I find criticisms of "whataboutism," "both-sides-ism," and similar idiot phrases uninteresting. What I do find deficient in such accusations is that they treat what ought to be the beginning of a line of argument, one that needs to be developed and teased out and may land in unexpected places, as the end of the argument.) If those critics were actual critical types, they might end up somewhere more interesting. For instance, they might conclude that since law is the strategic exercise of rhetoric for purposes of power, it's all in the game. Accusations of illegitimacy from the judicial left or right, and counter-criticisms of accusations of illegitimacy from the judicial left or right, are all simply standard current moves to be deployed. not necessarily wisely but certainly not, so to speak, illegitimately. But they're not crits; they're legal liberals. So that move, or at least full candor on this point, is not available to them. They are obliged to have faith in the distinction, and are limited to trading accusations about whose shoe is on which foot. (In most cases, I presume, this self-limitation is sincere, even if it suggests a possible lack of self-awareness. Surely there are others for whom the accusation is indeed in bad faith; they do think it's all in the game, but are willing to accuse one side of exercising raw power even if they think that side was exercising judgment and not just will, or even if they think there is never more going on than pure will. For such critics, the failure is not one of coherence, but of honesty and integrity. If they are scholars, this would also be a professionally disqualifying failure.) 

I'm inclined to think, but without strong conviction on this point absent a serious second look, that some recent dissents have fallen on the wrong side of the line. I'm also inclined to think that some past dissents have fallen on the wrong side of that line. Again, there will be differences about when this is the case. In my view, this sometimes comes down to a matter of tone. It's easy for an argument that one's judicial colleagues have acted outside the proper scope of the judicial duty to slide into an accusation that they have acted arbitrarily or outrageously or for reasons of pure politics; it's a matter of a hot temper, a few too many angry words, and too little willingness to excise a pithy but unnecessary word or phrase. It would not be wrong, on this view, for Justice Scalia to argue in dissent that a majority was fundamentally mistaken in its view of the role of the courts. But it would also be easy for him to take a step too far, to be too enamored of his own writing, and so to turn the criticism into a personal or institutional attack. Sometimes he most definitely did so; but not every dissent that argues that the majority has misunderstood the role and duty of the courts, either by going too far or by shirking its responsibility, would qualify. 

I also think it's reasonable to worry about language in opinions being used strategically by "the public" to further some point of its own about the legitimacy of the Court, a point that the opinion writer him- or herself might disagree with. The world is full of fools, knaves, and social media accounts, with a substantial overlap among them. I doubt that a caution like the one Roberts offers here would do the slightest good; and because it doesn't, it may do some harm, by seeming (or being) fatuous or futile or defensive. But the concern it expresses is not unreasonable as such.

I find Roberts's passage weakest in three or four things. The first is debatable. He might have illustrated his point with specific examples. One can understand why he didn't, of course. Second, and here I think his passage is at its weakest and my reconstruction is at its most charitable and creative, he elides arguments that a decision is "going beyond the proper role of the judiciary" with arguments that engage in "disparagement" of the majority and the institution rather than "disagreement." The proper role of the judiciary is a legitimate subject for disagreement between judges, it can be raised without broader personal or institutional disparagement, and--as critics of Roberts's passage emphasize--it has been raised, by judges including Roberts. I think Roberts wants to say (or ought to want to say) that it should be possible to air even fundamental disagreements about the judicial role without suggesting that the ostensibly erring side simply doesn't give a damn about law or judging as such, and that a failure to make the difference clear is damaging to the institution qua institution. Maybe that's not what he wanted to say. But if it was, he could have said it more clearly. Third, I'm not sure his passage is aimed at the right target. Most of the worst stuff along these lines is not coming from dissenting judges, but from the "public" he is purporting to address.

Finally, I found his use of the phrase "the public" vacuous. I will stipulate that there is some "public" that consists of individuals who are interested enough in the Court to pay some attention, not so much to its opinions, but to commentators using and abusing language from those opinions. I'm not at all sure that this "public," which again largely has its mayfly existence on social media, is "the public" or an especially representative public. There is a much larger public that doesn't care at all about such matters, or that thinks ill of the Court as an institution in part because of current politics, in part because it has come to distrust institutions generally, and, in a broader sense, because many people seem to no longer comprehend or care about the idea of institutions as such. And then there is the "public" that consists of paid professionals, people who depend for their living or for the reputational goods they seek on either digging up real or imagined evidence that the Court is illegitimate and then broadcasting it in the most florid terms, or digging up any possible argument that the Court is not illegitimate and broadcasting it in equally florid language. Whether we should pay the slightest attention to such paid employees of the political ecosystem and its donor class, and in what sense they can be said to be "the public" at all, are separate questions. But on the whole, I doubt that "the public," as Roberts uses it here, has much descriptive value.   

Webinar on Harvard/UNC decision

The University of Texas Law School is holding today what looks like an interesting "webinar" (their name, not mine!) on the recent affirmative action decision. Details are here. It is one of what should be several recent valuable events on the decision--none of which, to be clear, are likely to be hosted by the AALS, whose programming on this and other issues this year has been glaringly bad. 

The Times Fails at History and Irony at the Same Time

As a former journalist who relies on the Times for basic news, and who believes the value of the best legacy media is particularly important in an age of cheap, bad, and disappearing journalism, I often lament weaknesses in that newspaper--many of which, ironically, stem from steps it took to fend off or hire from new media. As a Canadian and tragedian, and perhaps as a member of Gen X, I regularly bemoan Americans' remarkable lack of irony, a quality which is both a vice and a basic requirement for intelligent civilization. An awareness of history, something whose absence I also lament, is a prerequisite for both good journalism and a sense of irony. 

The Times, remarkably, shows the absence of all three in its lead story today. Anyone who writes about affirmative action ought to know about Bakke. I offer no view on the ultimate survivability of the policy discussed in today's story. But any soi-disant great newspaper whose lead headline could be rephrased as "UC-Davis Medical School Confident About its Admissions Scheme," and which does not so much as mention Bakke, clearly needs to work on its sense of history, irony, and basic quality. 

What's Funny About Compliance(?)

For different reasons than mine, Steve points to a Washington Free Beacon story describing the First Amendment training implemented for students at Stanford as "a campus joke." The training, according to the story, consisted of watching five one-hour videos and then signing a form attesting that the students had watched them. "The videos could be played on mute," the story says, "and the form—which could be accessed without opening the training—did not ask any questions about their content, letting students tune out the modules or skip them entirely." 

Steve is concerned, with justification, about students unethically lying and signing the attestation form without watching the videos. My interest lies elsewhere, with what Steve calls the "vapid requirement" itself. Let me be clear that I think the Free Beacon, an openly conservative paper, is valuable, and Aaron Sibarium, who wrote the story and did much of the original reporting on Stanford, performs a useful function, doing real reporting on stories that would have been covered by the legacy papers if they had a different spin and sometimes forcing those papers to cover them. But of course the paper, which is openly and often puerilely political, always has a spin (not uncommon, these days, in fairness; God help us, people seem to want it), and in this case Sibarium's spin of choice is that Stanford's First Amendment requirement, which was much praised when it was announced, is in reality a big joke. 

I would ask, a joke compared to what? The attestation mechanism is certainly badly arranged and subject to easy abuse. But five hours of First Amendment "training" is pretty serious! (I'm not sure the students actually needed that specific training. Five hours of civility training, accompanied by clear instruction in campus disciplinary rules, would have been much more to the point. Naturally, students would be free to challenge the notion of civility; but then, they're free to challenge the value of the First Amendment too.)

In reading the story, surely the mind of every professor, and indeed every employee of a large institution, turns to his or her own "training" in various matters. Every year my university requires me to learn and relearn basic facts about sexual harassment, hazardous materials, Internet safety and security, mandatory reporting requirements, and so on. Some of those videos can probably be muted; who bothers to remember? Many of them can be played at accelerated speeds. Most of them can be at least half-ignored; even the ones that require you to answer questions along the way are, shall we say, undemanding of one's attention. All of them signify and embody the deepest, most strongly held value of universities and other major institutions in our changing world: that such institutions should loudly announce their virtuous compliance with whatever is legally or socially required, and that every member of that institution should do his or her utmost to establish on the record that the institution is blameless for whatever happens next.

It seems to me that Stanford very seriously performed its duty here. If students (or Sibarium) think that training is a "campus joke," they should spend some time watching professors and staff receiving university-mandated "training" in other core topics. Or the law students could get an advance peek at the kinds of things that can count as continuing legal education for purposes of the California bar's gargantuan CLE requirement. (They will have to go further than the nearby faculty offices, since California exempts full-time law professors, for reasons that escape me.) I'm not a member of that bar but, based on what I have seen up close, one can accomplish an enormous amount of paperwork and cook several elaborate meals while receiving further legal education comporting with that state bar's requirements. Of course I would look unkindly on a lawyer literally lying about having watched a training video or other CLE unit. But--as with judicial ethics requirements, I would add, in light of other conversations--there can be a long gap between technical compliance and honorable, attentive compliance. The wonderful thing about most compliance requirements is that you don't have to lie, because you barely have to do anything in the first place.

I'm not quite knocking CLE requirements. I'm not quite knocking other compliance regimes. I'm not quite saying such regimes blur the line between having a value--such as concern with equity, sexual and other forms of harassment, and other things trumpeted by the kinds of institutions many of us belong to--and performing that value for purposes of PR and legal indemnification, in a way that renders those repeated institutional statements about their strongly held values rather hollow. I would say that any humor lies not in Stanford's reasonably serious effort, but in the larger universe of compliance rituals of which it is just a small part. We, in particular, ought not be surprised, given that "compliance studies" and "compliance certificates" have become a major source of law school income. 

Now *That* is a Utility Vehicle

Lawyers may be excited to learn, from a story in my home state's Al.com, that Mercedes is enabling drivers of more than 900,000 of its vehicles to access ChatGPT through the cars' voice control system. Now we will be able to enjoy the efficiency and convenience of writing briefs while we commute.  

Boudin, Berkeley Launch Center for the Study of the Matthew Effect

The actual name and purported goal of the center are different, but believe me, the interesting object of study here is the Matthew Effect. The fortunate Mr. Boudin will join countless other holders of sinecures at major law schools and more or less non-profit organizations. 

(Incidentally, this isn't the draft political post I mentioned earlier today. I deny that this is a political post. Noting the phenomenon by which social class, fame, connections, appropriate political views, and a completed or failed political career, or some combination thereof, ensure that one will always be gainfully and/or conveniently employed by fancy organizations is not political; it's merely descriptive. Cincinnatus was a sucker.)   

A Few Thoughts on Our Delightful, Antiquated Enterprise of Blogging

Brian Leiter writes today in his indispensable (?) Leiter Reports blog that "While Twitter has taken a toll on blogs generally, this one is still going remarkably strong, averaging well over three million unique visitors per year, so it seems a good time to begin phasing into blog retirement while it's still widely read and influential." He adds that it will be a "multi-year phasing." It occasions a few thoughts on the nature of the enterprise. The first, quite simply, is that I am sorry. Not being a philosopher, my reading of that blog is a little like watching a game of inside baseball while not knowing the sport well. But many posts are for more or less general readers, and they are interesting and spirited. Indeed, I wish his law school blog was more like his philosophy blog, that it more frequently tilted against whatever he may see as failings in our own corner of the academy. But it has long been a valued daily read, and if and when the time comes for it to go I shall miss it. (I suppose I could always read the Daily Nous. But I jest.) 

Second, I continue to believe the legal-academic blog fills a potentially useful space between social media and full-dress academic writing. The most important way it does so is not, as it once was, in terms of immediacy, but in terms of length: not everything worth saying is worth saying, or can be said, in 280-character stretches. (In my view, nothing worth saying can be said in 280-character stretches.) The second value it serves is its availability as a space to write about the academic life. I find academia greatly interesting as a sociological, anthropological, literary, and economic enterprise. It's in the nature of things that most articles don't say much that's new or terribly interesting, novelty claims notwithstanding. The job of the scholar as reader is thus largely one of sorting and winnowing. But how we write (or teach, or serve, or lateral, or govern, or fail to govern) I find endlessly fascinating. And all this has a direct relationship to what we write, what we don't write, often enough to why we write, whether and where this writing is published, and how it is received. It is a truism, albeit one that is selectively recalled and applied, that judges are political actors, affected by their context and bias, by the cases that come before them or are ignored or avoided, by the means of production of both judges and cases, and so on. Of course the same is true of legal scholarship, among other things we do as academics. Selectively applied, as I say. I hear a great deal about Koch money, for example, and almost nothing about Proteus Fund or Soros money; writing in non-conservative spaces about the influence on the legal academy of left-liberal heirs and plutocrats tends to be acceptable mostly if it's devoted to the past, such as writing about the influence of the Ford Foundation on clinical legal education in the late 60s and early 70s. But our choices are influenced by much more than money, and I would like to see more writing about how fads, fashions, the love of fame, and other factors leave their fingerprints all over what we do, rather than treating our work as if it emerged fully grown from Zeus's head.

There's room for more full-length writing about this in legal journals. But it's understandable that most of us, most of the time, prefer to write scholarship about the ideas themselves and not about their production. The latter can seem self-indulgent, and in any event most scholars are more interested in ideas themselves, whatever the sources of their encouragement, mediation, and corruption, than about the production of those ideas. We're not really a reflective or introspective bunch. (Given our long interdisciplinary trend, one would think there would be more room to hire and publish sociologists and anthropologists of the legal academy. But those are not the most common fields we hire from, and most of those we do hire write about the world outside their own gates. In raw numbers we probably have more people qualified to study the nature of our own enterprise than ever before, but the high-water mark of writing of this sort passed when the Crits fell out of favor.) It also might seem rude or perilous--another way in which the behind-the-scenes element affects what is seen in print. And there's yet another factor that suggests the sociological/means-of-production influence on what we do as legal scholars: such writing would have to be seen as interesting by the law students to whom we have, oddly, delegated the job of making publication decisions. Moreover, a scholar who went down that path might well be cautious or selective, given that the students themselves would surely be a subject of study, sometimes with unflattering results. (Mutually unflattering results, since student choices reflect the willingness or unwillingness of faculty to do something about them.) That kind of timorousness doesn't vanish because the space for writing is the blog--or, for that matter, Twitter, where the audience is larger and the timorousness is if anything much greater--rather than a law journal. Nevertheless, one sees more writing about these kinds of subjects in blogs than in law reviews, and I would miss it if it vanished.

Third, for me at least, one generally unstated reason to keep Prawfs going is our departed, murdered friend Dan Markel. I like it that his baby is still here. Not that I doubt Dan himself would have taken to Twitter eagerly and over-enthusiastically. But even if that makes Prawfs itself rather a historically contingent artifact, I still feel the desire and obligation to keep it alive, long past that hoped-for time when the last culpable Adelson is in prison.

Finally, I'd like to add a word to what Howard wrote on this blog a few weeks ago about legal blogs (and the legal academy generally) and political diversity and polarization. Howard asked whether Prawfs "does okay on this" and answered "yes," with room for improvement. I was sympathetic to this view, which was discussed entre nous before appearing in a post. I still am. Granted, talking about diversity among a group of small-l liberals ranging in their views from A to C may be like describing M&M's as varied because there are so many colors. But within that category, there are political and subject-matter differences among us. We don't all write with the same frequency, and that matters. But Howard's posts are different from mine, even apart from questions of economy versus excessive length, just as Howard's posts are different from Rick's and Rick's are different from other-Rick's. 

That said, I don't think I fully appreciated at the time the importance of what we write about from our varied perspectives, and the dynamic that is created once anyone writes about politics. If a person with one set of views chooses to write a post that is openly political--or, more often, a post about the law into which politics enters through the stray remark, casual imprecation, or incidental overconfident assertion about supposed matters of fact--the way diversity enters into things is that a co-blogger with different views challenges those remarks. The result is a series of posts about politics, or political posts. And then the blog becomes a place of disagreement about politics, a site whose subject is politics. That's just a politically diverse downward spiral, inasmuch as politics itself is a blindingly boring subject and our best selves are rarely on display in such disagreements. It still polarizes, simply by focusing on politics, a subject that these days is almost inherently polarizing. It also plays away from our strengths, given that law professors, like everyone else, have a lot of confidence about, but very little expertise or insight concerning, politics. God save us from a legal blog about politics, or a political legal blog, diverse or otherwise.

So I think I'd have to revise my initial agreement with Howard's post, and at least make it a "yes, but." It's good that different perspectives can be found here. It would be nice if there were even more. But the best way to avoid both the unpleasantness and the tedious and blindered nature of polarization is not to field two or more teams, but to not play the game at all. (How about a nice game of chess?) Prawfs always focused more on writing about being a legal academic than on legal academics writing about, inter alia, political subjects. That gave it a real, albeit a narrow, focus and audience. I hope that continues to be our forte and, on the whole (and with the ironic knowledge that I have a post brewing that brings in politics) our primary area. The means of production and the background influences on our work continue to be relevant to what law professors do, and those influences continue to change. The rise of fellowships as the primary path to teaching means both that entry-level professors are better-informed, but also creates new reservoirs of quite incorrect shared lore. Changes in the student body create opportunities for new ways of teaching--and new student desires that ought to be resisted or rejeced. Changes in the mission of law journals--changes apparent to everyone but discussed less openly by the professors than by the students themselves--rejig the endless status game and deserve full treatment and criticism (or praise). Fads and fashions always change: Is the proper phrase "this is the first article to..." or "this Article, the first to...?" Is there any topic to which one can't append the phrase "The Political Economy of," and how many spots in the rankings that we all loudly reject will that title choice help the article climb? The money rolls in. or rolls out, each with attendant effects. Obviously, changes in technology create new topics to explore. So, even as we grow older and wiser and thus know less and less, there is still plenty to write about in what used to be our particular sandbox, rather than focusing on the world's oldest and most boring subject.  

Steve Shiffrin and Our Luck

Mike Dorf reports that Steve Shiffrin, an emeritus professor at Cornell Law and a leading scholar on the First Amendment, has died. I am particularly grateful for his books The First Amendment, Democracy, and Romance and Dissent, Injustice, and the Meanings of America and the excellent First Amendment casebook of which he was a co-editor, and for his articles Religion and Democracy, The Pluralistic Foundations of the Religion Clauses, and The Dark Side of the First Amendment. One could add many more major contributions to the list. On a personal and a scholarly level, he will be missed.

One thing I didn't know about Steve, and discovered upon looking at his faculty page just now, is that he was a night student in law school, at Loyola Los Angeles, where he was editor of the law review and first in his class. He also did graduate work in "Speech Communication" at UCLA, but remained ABD. These are real accomplishments, and anyone who has taught night students will tell you they can be some of the finest and certainly some of the most serious and dedicated students one has the privilege of teaching. Nevertheless, they depart from the conventional paths to law teaching, then and now. His students, colleagues, and readers have cause to be grateful that this didn't stop him and that various people along the way must have seen his promise and offered him the opportunities of which he made full use. Sarah Lawsky's annual entry-level hiring report indicates that a decent number of people still emerge from elsewhere than the usual schools and fellowships but that the usual suspects remain the norm. What we get from looking under the lamppost, as we do so often when hiring, is not so much brilliance as it is safety and efficiency (as well as conventionality, although I'm not sure this is something law schools are actively seeking by putting students through the standardization process of fellowships; it may be more of a side-effect). What we lose is the potential reward of simple chance and raw promise. It's a loss to be lamented, and a reason both to look more widely when hiring and to reconsider the deadening effects of the high tenure rates that prevail in American law schools. 

Alabama Law Review Symposium: The End of Animus: The Lifespan of Impermissible Purposes--In Print

The Alabama Law Review recently published its symposium issue from last year's Law Review Symposium on "The End of Animus." I heartily recommend it. The word "end" here has two meanings. The primary meaning is temporal, asking how long a judicial finding of impermissible purpose or animus does or should remain in place and how (or whether) it can be ended. It's a question raised by several recent cases, such as Ramos v. Louisiana and Trump v. Hawaii. My general sense of the scholarly (and judicial) literature is that much more attention is devoted to the front-end question of how to get a finding of impermissible purpose than to the question of how or when it ends, and it seems to me that the latter question deserves more attention for anyone interested in questions of sound political and legal governance. The second sense of the word has to do with whether "animus" as a legal tool itself ought to be questioned and perhaps done away with. The contributors to the symposium--William Araiza, Dale Carpenter, Michael Coenen, Andrew Hayashi, Joy Milligan, and Robert Tsai--have a great deal of value to say on both questions. Read it now! (In the category of encouraging student efforts to grapple with jurisprudential questions, may I also call your attention to a recent student note, available on the same page, by Matthew T. Still, titled "St. Thomas Confounds Vermeule: A Thomistic Critique of Professor Vermeule's Conservative Anti-Originalism.")

A parting word on "print," which is never dead but often in the process of being wounded: As valuable as I find the ready accessibility of law reviews and law review articles on their own sites and at SSRN, I confess to missing the feeling of law review issues as "books" taking a physical form. Services providing law review tables of contents have faded, partly in response to technological changes and partly as a result of library budget cuts and changes. At least in my case, which I don't think is totally idiosyncratic, COVID cut back on my visit to the library to peruse the actual new print issues in their natural habitat. Another easy budget cut is for law schools to stop subsidizing the production of extra copies and for law reviews to stop sending their new print issues to each member of the faculty. All of this, I think, is a loss whose possible effects--a disconnection between a faculty and its own journal(s), a slackening of interest in individual issues planned for impact as issues, a further reduction in the number of book reviews (since they fall between the stools for both authors and editors and may have less metrical "impact," and a general contribution to our collective disembodiment--are not worried about enough. I wonder whether the sense that the notion of a "publication date" is itself something of an artifact contributes to the increasing lateness of many journals' issues, although doubtless that has a much longer history. In any event, I lament the change and encourage law schools and law libraries not to budget the physical form out of existence, and for law reviews to continue thinking of each issue as a "book" whose contents should be planned and structured accordingly, with different sorts of features within a given issue, with the physical thing itself treated as being of continuing importance, and with copies continuing to fill up mailboxes. (And I await with some eagerness the April Book Review issue of the Michigan Law Review.)    

What Were Their Billables?!?

At the VC, Eugene had two interesting posts yesterday on intersections between Chat GPT and the practice of law. The story about the lawyer who filed a brief with an assist from Chat GPT that resulted in citations to fictional cases has had some legs in legal circles. But it's the other story that interests me. It relates a message from Prof. Dennis Crouch: "I just talked to a partner at a big firm who has received memos with fake case cites from at least two different associates." The assumption, in this context, is that those fictional cases also came courtesy of Chat GPT.

My practitioner wife, who is a model to me both for her professionalism and for her kindness and compassion, takes the view that if she were the partner she would "fire their asses" immediately. That is an entirely reasonable position. She would also report them to the bar, although this, it seems to me, actually raises interesting questions about which rules they would have broken. More specifically, did they break any rules (such as the rule requiring competence in lawyering) in a way that would lead to anything on the part of the bar other than a decision not to pursue the matter further? Did their conduct rise to the level of raising substantial questions about their honesty, trustworthiness, or fitness as a lawyer, such that reporting would be mandatory? Did they actually violate the equivalent of Rule 8.4? 

But I think the first and potentially most consequential question a supervising lawyer, or a client informed that something of this sort has happened (if they are so informed), or a court or opposing counsel who encounters this sort of thing in the context of a case in which hours are recorded because attorneys' fees might be awarded, is: What were those associates' billable hours on the file? If an associate turned in to me a memo or brief that turned out to have fictional cases or other flaws or errors related to the use of Chat GPT, the first question I would have is how long they said it took them to research and write that memo or brief. I might or might not fire or report to the bar an associate who used Chat GPT as an assist with a resultant error, although I think doing so, and especially firing them, is an entirely reasonable response, especially for those who value and demand professionalism. But I sure as hell would take both actions if a lawyer used AI to "research and write" something in three hours and recorded billable time of thirteen hours. Supervising lawyers, clients, in-house counsel, opposing counsel, and judges should definitely be vigilant about the billing implications of Chat GPT along with other risks.    

A Trifle Premature

I may be missing something, but it seems to me that Howard has not only fired a load of buckshot in his post below rather than aiming or firing with any precision, he has also engaged in a sort of premature expostulation.

When I read the words “according to FIRE,” I tend to assume what follows will be supporting evidence, especially if I see hyperlinks looming just ahead. And when I see something referred to as a “test,” I tend to assume the test-taker is at least registered for the class. Of course FIRE has spoken and acted on the subjects of campus heckler’s vetoes and disinvitations of campus speakers. Both are university speech issues. I have no idea what the organization thinks about comedy club disinvitations, and the story Howard links to doesn’t tell me—perhaps because until very recently, FIRE’s mission was limited to questions of university speech, and so far as I know it hasn’t been vocal on the question of comedy clubs.

Perhaps unwisely—money and mission creep are both dangerous things for organizations that have acted usefully within a more limited scope— the organization recently announced that it would be expanding into free speech issues more generally. No doubt in the fullness of time FAIR will be confronted with various “tests” of consistency. Perhaps it would be fairer to wait until then before trying to figure out the nature of that test. Like all debates, culture-war debates are of dubious value generally, but certainly become more dubious the more untethered they are from specifics. 

(As a side issue, there is no inconsistency between the Religious Test Clause, or the First Amendment as such, and the belief that faith in God is at the heart of American values. Those who drafted and ratified the Constitution and the First Amendment would no doubt be surprised by many things, but certainly not by that. I’m not sure how much we should care what they thought, or what they would think about a United States senator pronouncing on local issues of this sort, but they certainly would not have found the assertion that religious faith is a central part of American values to be “news” or to be inconsistent with prevalent notions of constitutionalism. They would have been more surprised by a contrary assertion. Even setting the anachronism aside, I think they would have been much more surprised and bemused by Senator Rubio’s assertion that something as trivial as baseball is “tied to our nation’s values.”)

A Reply to Steve: Lost and Found in Translation

I admit that when I read the title of Steve's post below, I assumed it would be about other aspects of the rhetoric in Michael McConnell's op-ed about the constitutional aspects of the debt limit debate. In an environment in which our rhetoric is permanently at risk of inflation, such that I believe there is value in putting even (what one thinks are) true statements and strong judgments in deliberately calm and moderated tones, I would have preferred that McConnell avoid a phrase like "dangerous nonsense"--even if he thinks the argument is dangerous nonsense. I say so with some reservation, since I admire the bluntness with which writers like Noel Annan delivered their judgments, with confidence and without any pretense that they were doing something other than delivering their judgments. And I too enjoy the occasional sharply delivered judgment. On the other hand, I don't think the language served a useful persuasive purpose in this particular forum, in which heated rhetoric is likely to succeed only when its purpose is to preach to the already-faithful; I think our rhetorical environment is already so polluted with sharp language that there is an overall net value in moderating it; and I frankly do not trust Americans (Annan was English) with dangerous weapons, including sharp language. That includes educated Americans. (Possible case in point: the headline writer who repeated that language. I am assuming only for these purposes that that person would count as an educated American.)  

One thing I feel fairly confident about, though, is that what Steve is actually interested in--the use of the phrase "That is not a bad thing. It is a good thing"--is not either an accidental or an ironic quotation of Chairman Mao. The general locution simply conveys a common-sense idea or argument: that, contrary to one's first impression, some purported bad thing is actually a good thing. The locution itself is English because we are dealing with a particular English translation of the original Mandarin text. I don't doubt that one could find similar phrasing in the literature and daily speech of any language. But it is never surprising to find that a translation uses phrasing familiar or sensible to the speakers of that language. (As a somewhat roundabout example, one of the quotations in chapter 5 of the Little Red Book says, with quotation marks, "War is the continuation of politics." One has to assume Mao was quoting von Clausewitz. I don't know whether, in the original Mandarin, Mao was quoting von Clausewitz in the original German or using the common English translation of that famous phrase. But whatever the case, it can't be surprising that a translator would have used what had become a common English-language version of the phrase--or that an English-language translator would use a fairly banal pairing like "bad thing" and "good thing.") It is not surprising that a phrase like this appears in either Mao or McConnell because it is not surprising that any English language speaker would use a matched pairing like this. 

If I am wrong, then the Maoist or Maoist-ironist conspiracy runs far deeper. Fifteen cases in the "all cases" database on Westlaw use similar language; in many of those cases, the language came not as part of a considered writing process but in oral statements offered in passing in court by judges, attorneys, and laypeople. (For instance, the defendant in one criminal case, who said in court about his offer to turn his children over to the state, "It's not a bad thing. It's a good thing." Or the physician who testified in an insurance dispute, "If you've got a limb that's partially paralyzed, exercise is not a bad thing for it. It's a good thing for it.") Using a conservative (if I may) estimate, close variants of the same phrase have appeared over 50 times in the law review database on Westlaw. While it is pleasant to entertain the suspicion that the legal academy really is filled with Maoists, Occam's Razor suggests that this is just a phrase that oft was thought and also oft expressed. (In fairness, Jack Balkin was one of the writers who used this locution. Still, that doesn't account for the other 49 or so times.) I am confident that the writer who, when speaking about expert evidence, said that "looking directly at the science seems a good thing, not a bad thing" was simply using readily available language, not sending a signal to the revolutionary cadre. As for irony: speaking as a Canadian, I must say that the good-money bet is always against any American speaking ironically, let alone that many Americans and still more that many American academics. It's a sadly uncultivated, sorely missing skill in these parts. That was true even back when a young Jed Purdy was, wrongly, arguing against it. 

Finally, I might note that a Google Ngram search suggests that the phrase or close variants of it have been used by English speakers long before 1939 and on any number of occasions since. I am reasonably confident that neither the writer in Youth's Companion magazine in 1900 ("The desire to excel is not a bad thing but a good thing"), nor Liberal Chancellor of the Exchequer and later Prime Minister William Ewart Gladstone speaking on the hustings in 1865 ("And that was not a bad thing, but a good thing for the constitution"), nor Matthew Arnold, nor the commenter in the Illustrated London News in 1918, were Maoist belle-letrists avant la Maoist belle-lettre. 

In this instance, I believe, the cigar is just a cigar. 

Like Steve, I take no position on the merits. Although, having pronounced on McConnell's language, I cannot resist pointing out that it doesn't hold a candle to the vitriol of the commenters on his op-ed, and that McConnell's op-ed seems to contain far less irony, or whatever it should be called, than Laurence Tribe's op-ed of a week ago. 

Law and Psychology Review Expedited Consideration: Deadline May 10

I apologize for the late posting of this notice, but for scholars who may have articles in draft dealing with the intersection of law and behavioral or psychological studies, please note the availability of direct submission and expedited review at the Law & Psychology Review, for papers submitted by the end of the day on Wednesday, May 10. The notice is below:

LAW & PSYCHOLOGY REVIEW - CALL FOR PAPERS 

MAY 10, 2023 DEADLINE FOR EXPEDITED CONSIDERATION

The Law &Psychology Review at the University of Alabama School of Law is the leading student-edited journal exploring the intersection of behavioral and legal studies. We have a rigorous editorial review and revision process designed to strengthen the style and structure of each article that we select. As a specialized journal, we bring experience and expertise when it comes to editing works with psychological and behavioral aspects.

The Law & Psychology Review is opening a special direct submission window. Submissions (in Word or pdf format)should be emailed to [email protected]. Submissions received by May 10, 2023, at 5:00 pm CT will receive a publication decision by May 14, 2023, at 11:59 pm CT.

All submissions must include a psychological component and be relevant to law and/or policy. We prefer articles with more than 10,000 words (including references) and in Bluebook format.

If you have any questions, please do not hesitate to contact us at the email address above.

 

Property Law Teacher Sought for Spring '24 at U of Alabama

I'm happy to pass along the following notice. I will add two points: 1) Our students are excellent and it is a genuine pleasure to teach them. 2) I am reliably informed that in other parts of these United States, one may experience heavy quantities of snow in the months of January through April. We mostly avoid such unpleasantness in this state. 

* * * 

The University of Alabama School of Law is seeking a visiting faculty member from an ABA-accredited law school for a podium visit in the Spring 2024 semester to teach Property (4 credit hours) in the first-year required curriculum.  There is an option to teach a second course in an elective subject of the visitor’s interest that matches with the Law School’s needs, but it is not required.  Instruction for the Spring 2024 semester will be in-person at the School of Law in Tuscaloosa, Alabama.  This visit will include housing and visiting scholar stipend in addition to covering regular compensation at the scholar’s home institution.  The University embraces diversity in its faculty, students, and staff, and we welcome expressions of interest from and nominations of individuals who would add to the diversity of our academic community. 

Interested individuals should submit a cover letter, C.V., list of at least three references, and recent course evaluations.  Materials may be submitted via email to Associate Dean for Academic Affairs Grace Lee at [email protected].

Individuals who wish to submit nominations may email them to Associate Dean for Academic Affairs Grace Lee at [email protected].

Review of materials and nominations will begin immediately and will continue until the position is filled.

What are the Best and Worst Times to Look at History?

"The answer to both questions, I should think, it: When it's relevant and current. It's the best time to do so because it's, um, relevant. And it's the worst time because moments of currency are when most people do the worst job of looking at history and, unless they are otherwise expert in the subject and thinking clearly, are most likely to rely on a canned and imperfect narrative."

The writer is Past Paul Horwitz. I started writing this post early last week, after Adam Cohen wrote an op-ed for the Times arguing that one distressing thing about the then-current news concerning Justice Thomas and his acceptance of generosity from a billionaire friend acquired after joining the Court is "the lack of bipartisan outrage at malfeasance that corrodes the standing of the nation’s highest court." Cohen's op-ed contrasts this with the fate of Abe Fortas, who was embroiled in controversy for initially accepting a payment from Leonard Wolfson, a financier ultimately convicted of securities violations. He argues that once the worst of the revelations about Fortas came out, "Congress respond[ed] firmly and in bipartisan fashion," leading to Fortas's retirement from the Court.

Since then, more people have discussed the Fortas story. They include Steve Vladeck, here, and a Washington Post reprint of its story about Fortas's resignation. (Below, I also reference a contemporary story from the Times. What strikes me the most about both stories is that in an era when space was at a premium, both stories were longer and gave more details than contemporary news stories, and also the utter lack of evidence that the endlessly self-trumpeted move away from "objectivity" has improved the quality of journalism in either paper. If anything the reverse is true, although I'm not claiming a causal relationship.) I draw on Cohen below as my foil. I have relatively little to say directly about the question whether, as Cohen argues, Thomas's behavior was far worse. I also have little if anything to say in his defense, and make a general point that applies to both Fortas and Thomas and is critical of both. My broad point is that the Fortas story as it has been presented in its canned-narrative form is incomplete and misses a good deal, some of which disrupts the point that Cohen, at least, wants to make, and thus shows how drawing on history in the moment generally disappoints or misleads. But the fuller version does offer some interesting potential lessons, some of which might suit Cohen and some of which might not, and that certainly wouldn't suit others, either in the camp that is critical of Thomas or in the camp that wishes to portray all of this as no big deal. Find a relaxing seat; uncanned history takes time. In keeping with my views on blogging and service to readers, I have gone unbearably long, left the takeaways until the end but buried plenty of observations in the middle, and omitted a jump page.   

Let's start with Cohen's op-ed and the state of affairs circa Tuesday of last week, after the first-round story about Thomas and his friend-cum-benefactor. Strikingly, Cohen's account omits the killing of Fortas's nomination to the office of Chief Justice of the United States. At that point in Fortas's tale, the Senate had before it at least one fact that can be analogized to Thomas. Cohen describes it misleadingly as "an earlier controversy over a course he was paid $15,000 to teach at American University while on the court." (Other accounts put the payment amount at $20,000.) This leaves out the nature of that invitation. The source of the payment for that course was Fortas's former partner Paul Porter, who lined up the gig at American--with initial plans for it to run indefinitely--and raised the $30,000 needed to pay for the course from rich friends and former clients of Fortas and the firm. At the time, the payment to Fortas represented a bump-up of 40 percent over his salary as a justice. Fortas was sincere about wanting to teach, and Porter said Fortas was unaware of the identities of the donors. At a minimum, however, it's clear that a major purpose of the course and the fundraising was to address Fortas's restlessness and unhappiness on the Court and his displeasure with the large drop in his income. 

The American University payment was only one part of the ammo used against Fortas in the chief justice fight. Another was what we could call culture-war nonsense, which is how the historical record treats it. Or, as we would call it if we were describing, say, the Gorsuch nomination, we could call it tough questioning about outré substantive decisions. A third was something else that may be relevant for analogy-drawing purposes: the well-known fact of Fortas's concurrent service as justice and unpaid advisor to LBJ. This Cohen gently describes as Fortas's "unfortunate habit of continuing to offer advice to President Lyndon Johnson, whom he had long advised, even after joining the court." There was no way to deny the relationship. But it could be finessed; or, as Laura Kalman puts it in her Fortas biography, when quizzed about it in committee, he "simply lied."

In the event, it was not enough. Fortas's nomination failed to get past a cloture vote, and with the writing on the wall Fortas asked Johnson to withdraw the nomination. But we certainly had not gotten to the "firm and bipartisan" part of Cohen's story. Some Democratic Senators defended Fortas throughout the process. The Judiciary Committee's 11-6 vote to send the nomination to the floor included three Republicans for and three Democrats against. The cloture vote was 45-43, well short of the two thirds needed. The count on that vote included ten Republicans voting for cloture, and 35 Democrats voting for it as well, along with 19 Democrats voting against along with 24 Republicans. 

At this point, we could still agree with Cohen's efforts to paint the opposition to Fortas as bipartisan. But, as with the ultimate controversy that drove him from the Court, that would be misleading, because it treats late-60s Democrats and late-60s Republicans as if each were cohesive, ideologically and politically united parties. Of course, they weren't. What killed the cloture vote, and thus Fortas's nomination to be chief, was an alliance between Republicans, less those primarily moderate or liberal Republicans who split off, and the conservative southern Democrats who, with their voters, would soon enough would leave the party.      

Cohen's op-ed, as I've suggested, omits nearly all of this and focuses instead on the controversy that led Fortas to step down from the Court. That controversy involved a payment from Louis Wolfson, a sometime client of Fortas, a man seen by some as shady and whom Fortas liked, according to Kalman. Cohen eases into his account of this issue, initially describing it in the op-ed as Fortas having accepted a payment of $20,000 "to consult for a foundation working on civil rights and religious freedom." But he does note fairly quickly that the plan was for annual payments to Fortas for the rest of his life. 

Cohen does not say, however, that the payments were to go to Fortas's wife for the rest of her life if he predeceased her. Nor does he note that Wolfson's payment had as much and as little to do with sincere support for research into civil rights and religious freedom as the payment to teach at American University. In both cases, the history makes clear, a primary purpose for both payments was to supplement Fortas's income, which was a drop from what he had been making in private practice. Wolfson also wanted, at a minimum, to be close to the great and be able to brag about it, although he also attempted to trade on Fortas's name in defending himself against government investigation. The income-supplementing point would have been clearer had Cohen noted that the source of what he calls, using the passive tense, the payment "to teach at American University" was his former partner Paul Porter, who lined up the gig at American--the initial plan was for the course to run indefinitely--and raised funds from rich friends and former clients of Fortas. Cohen notes that Fortas quite the Wolfson-funded foundation he belonged to, returned the first payment, and didn't take any more. He might have pointed out that Fortas didn't disentangle himself from Wolfson until after he'd been pressed to do so by his law clerk, Daniel Levitt, and only after telling Levitt to mind his own business. (Meanwhile, Fortas was busily trying to line up other arrangements, with bodies like the Twentieth Century Fund and the Russell Sage Foundation. For reasons that always escape me, but that seem to involve a blind spot of political sympathy and an establishment-oriented sense of what is and is not au fait, we seem to have a blind spot when it comes to bien-pensant foundations, also funded by plutocrats, that bestow garlands, perks, and comforts on justices and buy access and proximity to them. Judges, academics, and law schools that speak truth to power would be lost without billionaires and multi-millionaires and their tax-reduction vehicles.) 

We now get to the nut of Cohen's argument. He notes that the Wolfson stories came out in part because of, and were pushed by, efforts by the new Nixon administration. He then notes that Democrats began joining the Republicans in calling for Fortas's resignation, and that these included moderate and liberal Democrats. This is true and perfectly commendable. But it's something of a romantic depiction. For one thing, he might have noted that the Judiciary Committee had become aware of a connection between Wolfson and Fortas in September 1968, and both the committee and Attorney General Ramsey Clark declined to pursue the issue. He might have acknowledged that even after the stories came out, some Democrats remained in Fortas's corner, privately or publicly, and others simply remained silent. He might have noted that Justice William O. Douglas, who had his own corrupt relationships and thus had some stake in the matter, urged Fortas to hold fast--and that, when the Nixon Administration pushed to impeach Douglas, House Democrats killed the effort.

Finally, Cohen might have shed some light on our propensity to overlook and forgive the faults of our friends and allies, at least until enough time has passed to safely allow a different historical judgment to form, by observing that it took years for many to think of Fortas primarily as an ethical failure rather than as a great Warren Court justice and liberal brought low by Nixonian tactics. As Lucas Powe notes in his history of the Warren Court and American politics, two years after Life Magazine had published its revelations about Fortas, it ran the results of a survey of constitutional law scholars rating Supreme Court justices prior to the ones appointed by Nixon. Powe writes: "In anticipation of the ethical blindness that would descend upon the profession generally, Fortas was rated--along with Brennan, Douglas, and Harlan--as near great."

Similarly, a look at the law review literature between Fortas's resignation and the reassessment occasioned by the passage of time, by Bruce Murphy's book about Frankfurter and Brandeis, and later by the publication of Kalman's biography shows very little scholarly interest in Fortas or his ethical lapses. He was mostly passed over in silence, as one does with embarrassments. One is never surprised when law review eulogies soft-soap their subjects, only when they don't. Nevertheless, one might note that on Fortas's death, Justice William Brennan wrote in the Yale Law Journal that Fortas's "work, career and character...exemplified the judicial role at its best," and that the other tribute it published, which stuck determinedly to Fortas's civil liberties work titled "Abe Fortas: A Man of Courage," stuck to Fortas's civil liberties work in the late 40s and 50s and was titled "Abe Fortas: A Man of Courage." That tribute may have followed the strategy of Anthony Lewis, the definitional center of establishment legal liberal opinion, whose Times column eulogizing Fortas began, "When Abe Fortas died on April 5, people inevitably thought about his service on the Supreme Court and his forced resignation. But there is reason to reflect on his earlier years as a lawyer." I'm not privy to faculty-lounge gossip from the 70s and 80s. But I suspect that in those corners, the assessment of Fortas during that period would not have seen Fortas as a villain or rogue, but as a disappointment and a fool, who (along with LBJ) stupidly gave the Nixon administration the tools to launch the Burger Court "counter-revolution."

This history is, to my mind, much more interesting than the canned narrative Cohen provides. (Of course he had much less space to work with, a point with which I have some sympathy but not much; not writing an op-ed is always an option. But it's also beside the point. The convenience of a canned narrative lies not in the fact that it's short, but in the fact that it's canned: it's conventional, neat, digestible, usable, and comforting.) It's also more instructive. I take no position on whether, at the time Cohen published the op-ed, he was right in saying that Thomas's conduct--as of the state of knowledge about it at that time--was "far more egregious in scale than Fortas's," although I do think both that Cohen can make a reasonable argument on that point and that his assertions on the point, at the time and with the information he had then, are also both contestable and overconfident. But I am happy to take the assertion that Thomas's conduct (again, as of our state of knowledge after the first ProPublica story) is as bad as or worse than Fortas's. I am happy, too, to say Cohen makes a reasonable point in saying there was more bipartisan condemnation of Fortas and that this sort of bipartisanship is devoutly to be wished for. 

But it seems to me the fuller history suggests some different points than Cohen makes. The first is a simple point of clarification. The version of the story in which Fortas's resignation as showing admirable bipartisanship and today's treatment of Thomas as showing wicked partisan complicity is overstated and (perhaps inevitably) presentist. As is almost always the case, a close-up view of the past muddies the waters and makes confident assertions of this sort difficult. It shows that bipartisanship was closer to the exception than the rule, and that much of the bipartisanship, notwithstanding Cohen's examples, had to do with the makeups of both parties being very different. (I don't think this is the entire explanation. Cohen's examples of moderate-to-liberal senators criticizing Fortas--but, note, later in the process, not necessarily during the nomination to the chief justiceship--are good ones, albeit not necessarily representative. I think it is quite possible that some norms around both the senatorial role and the expectations that office holders have for themselves and others have changed, in some ways positively and in many ways negatively. Query whether many of the desires that are strongly expressed about what one's party should do, how its representatives should behave, and who should be elected would ease or exacerbate these very problems.)

A look at how that past has been received over time also complicates matters. Cohen is free to say that the meaning of the Fortas affair is clear. But he might more properly say, "The 2023 version of the meaning of the Fortas affair is clear." A 1973 version, 0r a 1983 version, might be different. (Indeed, as I suggest below, it's not even clear that the 2023 version for Cohen is the same as Cohen's version of the lesson of the Fortas affair in 2020.) That earlier version might be the "clear" lesson that Nixon was a bastard, full stop; or that, absent stronger resistance, unscrupulous politicians will leverage scandal to force judges off the court so they can reshape it to their own ends, even if others have engaged in that behavior or the so-called bad actor returned the money or the rules or their application are unclear (which is more or less the 2020 Cohen "lesson"; or that judges should be above reproach not because we care what they did, for the most part, but so that they are not vulnerable to the underhanded tactics of their enemies. Certainly the historical judgment of Gerald Ford is not that he behaved admirably by seeking to impeach William Douglas, even if Douglas acted wrongly. And although Cohen praises some Democratic senators for criticizing Fortas, I can't think of many examples of praise for Mitchell or Nixon or the Life Magazine reporter for revealing Fortas's conduct. At the least, the fact that the received wisdom on the Fortas affair was different at different times should make us less confident of the "lessons" we draw from it today and more aware of the distortions that enter in when we render history "usable."      

A point related to this is that both structure and actual preference today favor a political alignment that encourages the kind of situation that Cohen deplores. Plenty of people and interest groups deplore ideological diversity in their own party and view so-called party moderates as false friends and bad influences who should be drummed out of the party. (They tend to approve of moderates on the other side, at least once they've been elected, while favoring and sometimes working toward the election of the more extreme members of the other party at the primary stage.) Plenty of people in both parties think presidents who nominate moderates for judgeships are failing in their duty and ceding victory to their opponents. It's possible that some of the moderate or liberal Democrats who publicly criticized Fortas would have done so no matter what, and that this represents a genuine falling-off in our politics--albeit a falling-off that many perversely desire. But it's also possible that without the Southern Democrats, the ranks would have closed around Fortas much more fully and successfully. The road to a saner response to misconduct by judges and other officials runs directly through ideological and party impurity.  Insofar as they also serve as pressures for party purity and against heterodoxy, the interest groups that play a huge role in the political ecosystem may simultaneously help to uncover and publicize ethical lapses by their adversaries and help maintain a system in which those efforts become one-sided and partisan and fail. (There are exceptions. Some groups focus on ethics from a bipartisan perspective. But of course the picture is muddier than that. CREW calls itself nonpartisan but that is a transparent  stretch. Public Citizen is supposed to be but doesn't always act like it. It's hard for a group to keep funding, support, and staff for the mere mission of holding everyone to high ethical standards.)   

Another point is that, then and now, most people who support a justice's politics will remain silent even if they privately question that justice's conduct. Today they would just need to call out numbers to justify that silence, where the numbers represent ritualized responses in the game of culture-war politics: "23," for instance, might mean, "[X] is happening in the world right now, and this is what you decide to complain about? I'm too busy focusing on [X] to talk about this," and "42" might be, "This is coming from a reporter with a clear bias, and although I've been arguing for openly political journalism, I decline to trust that journalism when it comes from the other side, so I'll wait for more before commenting." But silence has always been an option and remains so. Where they are silent, moreover, that silence might not suggest approval; on the other hand, it may well be that they quietly consider the bad actor a fool who handed over ammunition to his or her unscrupulous enemies rather than a villain. 

A further point is that the Fortas affair and its "lessons" should make us more hesitant in assigning a role to the "villains" and "heroes" in such a story, or at least moderate our interest in the relevance of that question. ProPublica is a gift to journalism, especially given how little actual journalism there is. (Even leaving aside the death of local papers, on any given day I may find a good investigative piece in the Times but will almost certainly find a piece about Succession--at least five, actually, in the last seven days--or something equally trivial and cheap to produce. (It is either ironic or indicative or both that Nikole Hannah-Jones, who once reported on a story in Tuscaloosa involving my wife for ProPublica, effectively ceased doing journalism when she joined...the New York Times.) But of course its tendencies lean liberal or left. Does it matter? If ProPublica revealed valuable and disappointing or scandalous information about Justice Thomas through actual reporting, are its politics relevant? If someone like Sheldon Whitehouse, who hasn't a nonpartisan bone in his body, uses this occasion to push for information or reform, does it matter that his main interest may be scoring points or giving a Democratic president a Supreme Court seat to fill? By extension, if--as Cohen takes to be the case--Mitchell and Nixon did indeed reveal unethical and disqualifying conduct by Fortas (a point that was of course contested at the time and later), do we care that they were acting for their own ends? Do we care that Life Magazine leaned right? We should care about the accuracy of the report, and we may care about the tactics involved in obtaining or disseminating the information, although in the latter case we care for process reasons and not because those criticisms alter the underlying facts. But should we care beyond that? It is clear that some of Thomas's defenders do, even though those questions don't alter the fact of whether Thomas acted improperly or foolishly or not.

It would seem that as of last week, Cohen does not think we should care beyond that. He praises Democratic senators who urged Fortas to resign, saying they "were more concerned with the court and the country than with their ideology or their party," and although he notes that Nixon was pushing the effort to get rid of Fortas, "including with some improper leaks," he soft-soaps the history on that point and doesn't suggest that Fortas should have stayed on that account. But in his 2020 book Supreme Inequality, Cohen gives an almost entirely different picture. There, Fortas suffered a "forced resignation" (as opposed to Earl Warren's strategic resignation, timed to allow Johnson to fill his seat, which Cohen praises as Warren's "plan for saving the Court") at the hands of the underhanded Nixon administration, whose depredations he describes in loving detail; there is no praise offered for Democratic senators who abandoned Fortas, no paeans to bipartisanship, lots of leaning on the "no technical rules broken" and "other people did it" lines of argument, and plenty of criticism of Warren for not sticking by Fortas. The Cohen of 2023 confidently describes the Fortas resignation as "a blueprint for how lawmakers could respond today." The Cohen of 2020 calls the whole episode "disreputable"--for Fortas's adversaries, to be clear, not Fortas, who gets off with a verdict of "problematic." The judgments are so different that it would be natural to assume they were written by two different people.

It seems to me that if one thinks Fortas did nothing wrong, then one can argue he could or should have stayed on the Court regardless of who was pushing for his resignation and how bipartisan the effort was. If he did do wrong, then he could or should have stepped down regardless of who was scheming for his resignation and regardless of whether his critics were bipartisan or not. Similarly, if Thomas did not act improperly (and even aside from questions of fact, the Two Cohens, like the rest of us, may have an inconsistent set of metrics for whether technical compliance, according to a technical, lawyerly interpretation, is enough, or whether impropriety sufficient to suggest resignation is a matter of the spirit or the letter), he can or should remain, without any particular regard for whether his defenders are self-interested partisans and with equal disregard for the identity of his critics. If he acted improperly, he can or should resign even if the controversy is also or even primarily an effort to find a weak link and pull on it in an effort to change the composition of the Court, and regardless of whether he has or lacks support from Republican lawmakers. The judgment of history--which, as we've seen, won't be one judgment but a shifting series of judgments, even for the same person--will be what it is. The judgment of the individual judge about what integrity and propriety demand is its own question, which can't be shaped by the composition of either one's critics or one's defenders.

A final lesson of the Fortas affair and its comparison to the Thomas affair is, I think, true and valuable and somewhat neglected in the current discussion, and has become ever more true as more stories about Thomas's relationship with Crow have come out. Much of the discussion has centered on Corruption with a capital "C," thus making it important whether Crow was a real "friend" or someone deliberately cultivating a judge who may as a result rule in favor of the causes that person supports. But I don't think Wolfson's unsavory nature was as important, as a takeaway from the Fortas affair, as the fact that he liked to be well-connected, to know people, largely for its own sake. People love to have important friends. In that group, which includes most of humanity and almost all of humanity in the professional-managerial-creative class, the people who most love being near the powerful or famous move to LA or DC and make it a lifelong pursuit. The great and wealthy and famous, who are magnets for these people, have two options: they can accept it as their due, or resist it. The fact that some of these people might become genuine friends changes nothing. It certainly does not change what matters most: the small-c corruption of it all. (I might add that although they became friends long before one became a Supreme Court reporter for NPR and the other a Supreme Court justice, even Nina Totenberg admits that remaining an intimate of Ruth Bader Ginsburg led to small-c corruption for both of them.) I have no reason to disbelieve Thomas when he says that Crow is a genuine friend, but also not much reason to care. Crow's generosity to Thomas might be both sincere and financially trivial to him, in the same way that the Aspen Institute or Salzburg Global Seminar needn't count their pennies when cultivating Justices as summer speakers and teachers. But it's just...gross, and unnecessary, and, whatever the justices themselves might think of this or that friendship or invitation and their reaction to it, corrupting. 

One wants justices to live something of the life of human beings, with the social contact that is necessary for a human being to remain sane. But for the period of their tenure, I prescribe a fairly insulated, artificially cloistered life, with the deliberate shedding of a number of old and genuine friends and acquaintances and extreme caution in making new ones. No dinners with Nina, no vacations with Harlan, no fancy holiday parties, no star appearances at ACS or FedSoc or the AALS, no bloody memoirs and no book tours, and no "A-lister" rounds of the "embassy party scene." I give full credit to Thomas for a different way in which he has remained social and fought isolation: by touring the country in his motor home. I'm all in favor of Little League and Boy Scouts and trips to the Safeway. But between a sane and social life in which new friendships, naturally enough for rich and powerful people, are going to involve other rich and powerful people, and a depressingly lonely and isolated life, I counsel the latter. That it might make them miserable is of no consequence to me. That's especially true because its cure is always at hand and involves what they all ought to be doing anyway: serve for ten or fifteen years and then move on.  

 

 

Steven R. Smith on COVID and Bar Admissions

The state of the discussion cycle being what it is, it may be hard to remember just how much talk and advocacy there was in spaces like this and elsewhere about bar admissions around the first year and a half of the pandemic. Quite understandable, of course. But the problem with moments of advocacy around urgent situations is that it's like love, futurism, and news commentary: it means never having to say you're sorry. So I'm happy to spotlight this paper by Steven R. Smith, titled COVID and Bar Admissions. Its goal is to take a retrospective look at activities and advocacy around bar admissions in the summer of 2020 and 2021, to look at the various options that states went with (with a particular focus on the diploma privilege), and to note "the 'disconnect' between some law schools and bar admission authorities" during that period.

The paper is less normative than evaluative. But it does insist on one general descriptive and normative baseline: that "[t]he core purpose of licensing is public protection" [I would have been happier if he had added the word "ostensible" somewhere in there], and that the relevant question in considering law school and state bar responses to the pandemic, and licensing reforms going forward, is the public interest. I suggested at the time that too often, discussions focused instead, and often solely, on law students, whose interests are important but must take second place to the needs and interests of clients and the public. (Arguments were made at the time that rushing graduates into practice would serve the public interest for access-to-justice reasons, because those students would somehow get funneled into serving people in pandemic-related need or free up other lawyers to serve those people. I think that was more makeweight advocacy on behalf of students than serious or plausible argument. Smith notes that there are limited data on this point but suggests that the argument does not appear to have been borne out in fact.) The interest of clients and the public, not law students, is indeed the correct measure of any short-term accommodations or longer-term reforms, and it is useful to have an evaluative paper that proceeds with that standard in mind. Smith most certainly does not reject reforms to the admissions process in this article. But he does argue that any such reforms must be about the ultimate and not the intermediate beneficiaries of bar admission: the non-lawyer, non-law-student, non-law-school public. 

I leave it to my betters to evaluate Smith's paper and its strengths and weaknesses more fully. I cannot say how it will fare upon a more critical look. I assume there are other data out there. But I wanted to call attention to this paper because it deserves that more careful look. There was so much commentary at the time, but there has been virtually no acknowledgment or mention of Smith's article so far. (It is easy to forget that there was a whole Facebook page, with hundreds of law professor members, devoted to law school pedagogy during the pandemic. It's still going--and COVID gets mentioned in passing maybe once every dozen posts or so, if that. It would be nice if the die-hards on that page mentioned a paper like this, which actually addresses the topic.) Mutual flattery, sometimes misdescribed as "support," is the order of the day on social media when law professors promote each others' papers. Occasionally the word "brave" will be used, generally to describe papers displaying no particular signs of bravery. Inasmuch as Smith's paper calmly examines an issue on which there was much strong feeling, and does so in a way that "centers" (to use a currently popular abuse of the language) the interests of people other than law students, it deserves the label more than much scholarship I see in our discipline.     

"Inflection Point, noun"

Interestingly, in the revised edition of his Devil's Dictionary, Ambrose Bierce defined "inflection point" as: "A thing whose two common traits are that it is both widely observed and nonexistent. Said to relate etymologically to a frolicsome mythical animal that appeared often on the editorial page but never in nature." 

Just the Last Paragraph

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

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

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

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

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

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

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

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

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

A Useful Opportunity for Golden-Rule Law Review Reform

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

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

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

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

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

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

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

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

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

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

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

Is Editorial Content "Workplace Conditions?"

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

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

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

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

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

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

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

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

An Excellent Passage on Seminars

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

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

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

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

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

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

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

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

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

Il Miglior Fabbro: RIP Kent Greenawalt

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"They Cite Baude, Not Balkin"

This is an enjoyable post by David Pozen, written as part of a 20th anniversary series on Balkinization. (Happy anniversary!) I appreciated both its reminder of Balkinization's role during the War on Terror and its discussion of the role of means-of-production and technological questions in the rise or fall in influence of something like Balkinization. I also agree with him that you should continue reading the blog.

But I did wonder about the aptness of this passage: "The Court’s controlling conservative bloc has no appetite for arguments promoted by left-liberal academic elites, even when framed in ostensibly congenial originalist terms. They cite Baude, not Balkin." I'm not sure this can or should be laid at the feet of "the Court's controlling conservative bloc." I do not say this to be rude. (Deflationary, perhaps.) But the reality is that none of the Justices cite Balkin--nor, as far as I can tell, have they ever, pre-or post "conservative bloc." They do cite Baude an awful lot. But Baude has been cited more often (that is, once, I believe) by current liberal Justices than Balkin has. And I would add that, on the whole and holding Justice Jackson in abeyance, based on the kinds of articles they cite, the Democratic appointees to the Supreme Court don't seem to have any particular interest in "left-liberal academic elites" either. Certainly that's true if you emphasize the "left" in "left-liberal academic elites." When they are not using academic citations to fight fire with fire, their interest, which is tepid at best, is mostly in "liberal academic elites, either centrist or writing in centrist mode, offering fairly staid and conventional doctrinal arguments of the sort that could have been written at any time in the last 70 years." The Democrats on the Court are not a "Nomos and Narrative"-citing bunch. (Mark Tushnet, who is as interesting as Cover, has been cited a couple of times in this era--for doctrinal criticisms of Roe and of the Lemon test. ) 

I don't mean this as a criticism of Balkin, God knows. For one thing, he is influential; for another, my own cite count at the Supreme Court stands at a steady and reliable zero. Most importantly, I don't see not being cited by the Supreme Court as cause for criticism. But I think the clarification is worth making, both because it suggests that this is not just about the indifference of "conservatives" and because it suggests that there might be a broader disconnect between the current state of the "academic legal left" and anyone on the Court--not just because its attentions have turned to projects like political economy, but more fundamentally because none of the sitting Justices particularly share the politics, commitments, or worldview that Pozen describes as characterizing the "academic legal left." I seriously doubt a Justice Garland would change that.

Nothing about this should be surprising; elite judges and elite academics are two different sectors of the establishment with a widening gap between them. But it does suggest limitations for the model that Pozen discerns and praises in the blog: "marrying moral commitment to legal craft" in the cause of "establish[ing], in real time, shared understandings, narratives, and positions about the biggest threats to the constitutional order." Pozen, to be fair, only suggests that the Court was or might be one "plausible part of the blog’s imagined audience or praxis." But perhaps it was always more accurate to think of it, and most legal academic blogs (this one included), as serving the more modest function of providing elite commentary that seeks to influence other elite commentators. 

Silber, Outside In: The Oral History of Guido Calabresi

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

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

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

 

And One More...

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

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

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

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

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

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

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

Coan on the Court

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

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

More "Useless" Writing, Please!

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

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

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

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

Some Generalizable Points About Institutional Crisis

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

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

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

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

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

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

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

Lest We Forget

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Schorsch] defends his model of journalism.

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

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

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

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

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

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

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

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

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

 

Twitter as Institutional and Self-Corruption

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

Integralism Gets its Soft Launch

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

RIP: Cecilia "Cissy" Marshall, 1928-2022

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

The Court and Politics: An Update

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

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

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

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

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

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

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

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

 

Please Be Interesting!

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

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

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

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

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

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

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

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

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

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

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

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

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

The Performative Judicial Opinion Style

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

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

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

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

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

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

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

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

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

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

Why Not Just Do a Better Job of Outsourcing?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  

Coenen & Coenen, Principles of Constitutional Structure

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

Jotwell: Two articles on Supreme Court communication

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

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

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

And something from the end:

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

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

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

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