Saturday, November 19, 2016

Another View of Hamilton's "Politics"

Dan Filler has an interesting take on the Pence-Hamilton pseudo-event (in Boorstin's terms). He notes a debate among "progressives," a term that still begs for definition and certainly does not necessarily mean leftists, about whether the actors' action was strategically wise or not. And he argues that we should treat "Hamilton as a piece of explicitly political art, not an anodyne feel-good musical about a founding father." I note that there need be no conflict or contradiction between the two, and I doubt there actually is in the case of the Hamilton musical. 

Perhaps I am too mired these days in my interest in social class, in the frequent cluelessness of my own class (I mean that generally, not about Dan, and I mean it at least as much about myself), and in what I will, with some deliberate provocation, call the "actual" left as opposed to liberals and progressives. But I had a somewhat different take on the politics of Hamilton and of this episode. (As a purely practical political matter, I think Jack Shafer is probably wiser than both of us in this case.) I shared it on Facebook, not here, because one can be slightly freer on Facebook and because law professors, for bad reasons and with bad consequences, are always fascinated with other law professors' politics and eager to make shallow assumptions about them, of the "supports X so must be liberal, supports Y so must be conservative; therefore a wonderful/terrible person" variety. (We are not always subtle thinkers, especially about politics.) Clearly it was wiser to post it there than here. But what I wrote fits so nicely as a counterpoint to Dan's post that I cannot resist posting it here as well, with a few of the expletives deleted:

Now that I've read the actual statement [made by the actors], it doesn't seem like a big deal. Of course the "we" is contestable, but almost every invocation of "we" in the American context is a rhetorical and political statement that involves contestable definitions, identifications, and usually inclusions and exclusions. People may agree or disagree with particular such assertions but should always understand them as political and not statements of fact. There is a broader question whether we should care what paid performers have to say, any more than I'm especially interested in my barista's view on agricultural policy. But except for the possibility [I would say here, the certainty] that caring too much about what celebrity performers have to say is a sign of a weak democracy and politics, I don't object to actors and singers and baristas having opinions. Even if I did, there's not much I can do about it.

Then there's the broad question whether we should be concerned about the politicization of the consumer marketplace, of which theatrical enterprises are one sector, just as Wal-Marts are another. But expressive businesses, like theaters and wedding photography businesses, are often involved in politically significant expression and should be able to use or not use their voices accordingly. Plus, this was a seemingly unusual and good opportunity.

What I find slightly more interesting and, given what I know about the political self-satisfaction of the class of people that can afford tickets to Hamilton, less likely to be noted outside of actual left or right circles, is what the decision to speak once necessarily implies about all the decisions not to speak. Every day, especially given both ticket prices and the nature of its audience and cultural appeal, Hamilton plays to an audience of neoliberals, militarists, wielders of economic power, beneficiaries of massive corporate corruption and economic and political inequality, people who exploit connections in a relatively closed circle of the rich and powerful, etc. And those are just the nights when Hillary Clinton catches the show! A substantial part of its consumer base and business model is brokers, corporate lawyers, legacy admits to the Ivy League, executives, managers, investors, media elites, and so on. Its audience base is people who can afford to complain about the help, or praise their nannies (who they may or may not pay well or legally), not the nannies themselves. No doubt the regular audience could do with a pointed extra-script lecture or two as well! But that would be bad for business, and disturb the audience-validating, as opposed to audience-challenging, function that is the essence of musical theater. None of this yet reaches Hamilton Inc.'s cozy relationship to President Obama, and the mutual benefits and ego-stroking that were involved in it. Maybe the PBS documentary cut this part out, but I don't recall the actors at the White House performance of Hamilton breaking script to say, "Mr. President, we, sir--we--can't help but notice that you have raided and deported the hell out of undocumented immigrants in record numbers. Also, what the [deleted] is up with the drones, or Syria, or...." I suppose that actually would have been seen as rude in people's eyes. But once you start picking and choosing your exceptions and special occasions, of course you are making a political statement, conscious or not, about all the morally complicit and dubious audiences you are happy to flatter, the number of questionable actions--deportations, assassinations, killings, etc.--you are willing to "normalize," and so on. 

Again, I think the actual remarks to Pence were far from harassing or rude, and he belongs to what I expect to be an unusually awful and dangerous administration, and so it's not a big deal for me. It runs mildly against the usual protocol of respecting the office and generally being nice to guests, but the remarks were mild and polite. But Hamilton itself should be understood as being closer to a fundamentally conservative bourgeois enterprise and not to some actual left or even especially vigorous progressive endeavor, except by those who are bemused and bedazzled by identity politics. If it were otherwise, it wouldn't be such a big hit in the first place.


Posted by Paul Horwitz on November 19, 2016 at 04:10 PM in Paul Horwitz | Permalink | Comments (0)

Friday, November 18, 2016

What Next?--Part II: Avenues of and (Mostly) Revivals in Legal Scholarship

This post on "what to do" in response to the election of Donald Trump is long but shorter than my last. It involves more easily attainable and less disruptive action, but also has little if anything to do with real-world impact. I ask here what I would like to see in the next few years by way of responsive legal scholarship that is more or less in my field.* I'll dispense with the easy stuff first and relatively quickly, then add a few suggestions about what I would like to see, and one more suggestion about what one might see. Either direction would be interesting in its own way.

It is obvious and therefore uninteresting that one may expect an uptick of interest in separation of powers and federalism. A couple of conservative legal scholars have idly wondered, on blogs and listservs, whether their calls during the last eight (or eight-plus) years for limits on presidential power, and their interest in a vigorous separation of powers and federalism, will get more respect now that the shoe is on the other foot in a rather dramatic way. My prediction on that point is somewhat depressing and perhaps too cynical. I certainly think there will be an increased interest in these positions. But I doubt somewhat that mainstream liberal law professors will draw heavily on the work of conservative legal scholars who have made even relevant and helpful arguments along these lines. I think they are more likely to draw on the existing conservative literature a little, but much less than one might expect. Instead, they will adopt a mix of the following: invoke work from past eras when progressives favored such measures; write pieces advocating separation of powers, a more restrained or constrained executive, and federalism on the basis of their own existing work and methodology, drawing on the strands that would advance the Trump-resisting project, even if and when the bulk of their conclusions in that past work runs in the other direction; give more attention and more favorable and extensive treatment to federalism- or separation-of-power-favoring liberal scholars, like Heather Gerken, than they may have up until now; and, per the usual methods of many legal scholars, treat whatever they are writing in this new political direction as "novel" or the "first" to advocate this or that, sometimes because it really is novel but more often out of genuine and/or phony amnesia. As I say, all this may be too cynical. But I do expect existing arguments from legal conservatives along lines that might restrain Trump to get less attention than one might expect. Citation and prestige networks will remain more or less as much (or as little) of a closed loop as they always are. 

I wrote here a while back, before the election, wondering whether a Trump election might presage a revolt within the civil service. I also touched on it yesterday in my post, in which I suggested that one possible response of law professors in light of the election would be to go to work as government lawyers and civil servants in the Trump administration. I do think the ground-level mechanics and sociology of the civil service, and modes of bureaucratic entrenchment and resistance to the chief executive, overt and covert, will become a growing topic of interest, which is a good thing. (One hopes people will also write about the potential long-term consequences of such a model.) In addition to the couple of things I linked to in my earlier post, check out this online piece, rather confirmatory of my general prediction, by Jennifer Nou in the Yale Journal of Regulation blog, on "Bureaucratic Resistance From Below."

A pivot between the more and less obvious things I would like to see in legal scholarship over the next few years is the possibility of a more widespread interest in things like legal pluralism, mediating institutions, and subsidiarity. That is good news for those whose excellent books on First Amendment Institutions would make a superb Thanksgiving or Christmas present. I cannot say I would have predicted this on my own. But when The New Yorker--the New Yorker! home of generalized cosmopolitanism and attachment to centralized government!--suddenly expresses a post-election interest in Charles Taylor and specifically in subsidiarity, muses that subsidiarity could help us "get a grip on our political selves, and be less inclined toward nihilism on the national scale," and titles the piece "How to Restore Your Faith in Democracy," one gets the hint that something is up. I don't want to overstate this prediction. Based on what I have seen of about half of the current political commentary, it is just as likely that scholars of a political hue will simply argue more forcefully--and more successfully this time, or so they will swear--for more of the same. But I do think there will be some increased interest in things like legal pluralism and subsidiarity, in quarters that have in recent times been somewhere between uninterested in and forcefully opposed to these ideas. 

Let me suggest three other topics or approaches I would like to see more of in the next couple of years. They're all offered sincerely enough, but since I'm interested in and working on all three things and have been for some time, my vision may be distorted by my own preferences. I deal with them after the jump, so here's a list: 1) Critical Legal Studies; 2) Robert Cover's "Justice Accused" book; and 3) social class. I'll wrap up with the possibility that, instead of any of that, mainstream legal scholars will either stick with the same-old same-old or, more strikingly, return to the conventional views of earlier and seemingly superseded generations of scholarship.  

The first possibility I'm interested in is a revival of interest in Critical Legal Studies. To the extent that that school was viewed as an organizing mechanism for thinking about resistance to a conservative (or "Liberal") status quo and saw the left (as opposed to mere liberals or "progressives") as operating from a minority position against the prevailing tide, it would be a natural time for more people to pick up an interest in it again. To the extent that the election causes a few liberals to focus more on class issues, on the legitimating effects of the current system, and on the degree to which establishment liberalism, including establishment liberal legal scholarship, partakes of these problems and structures, again this would be a natural school to focus on and revive.

Since most legal academics are establishment liberals, one shouldn't overstate the degree to which they will suddenly become interested in formerly-outre left theory. I think they should be interested in it. I have seen a fair amount of recent liberal legal scholarship that really does seem to recapitulate, in its unthinking doctrinairism and unquestioning use of contestable premises, everything the Crits wrote about and against, while operating at a fairly high level of either bad faith and denial, or amnesia. I think CLS scholarship and thinking would be worth reviving even if--perhaps especially if--the establishment liberal had won. A CLS revival certainly wouldn't have happened in that event. But at least a little revivalism is more likely now. (I'm currently working on--and tragically behind on--a piece about CLS, although it has a somewhat different focus.)  

The second, more specific item is a renewal of interest in Robert Cover's classic book Justice Accused: Antislavery and the Judicial Process. That book, which asks what a judge should do "when he must hand down a ruling based on a law that he considers unjust or oppressive," will be or seem to be of renewed interest under the current regime. And the questions it asks will be of particular interest not with respect to judges, but with respect to the mid- and lower-level government officials and civil servants I mentioned earlier. (Cover's book is of interest to me because of a long-term project on oaths and the Constitution. It remains decidedly long-term as a project. But one might expect increased interest in that general topic as well.) 

Finally, it would be nice to see an increased interest, within legal scholarship, in social class. (Final self-serving note: I'm under contract and working on a book--and, again, woefully behind on it--about social class and the American legal academy.) Certainly that topic came up, in various ways (including self-critical ones), in the Crit literature. And the ClassCrits remain interested in it, although I don't sense that they currently have a huge audience. And both the facts on the ground in the past decade and the popularity of the Piketty book have caused an uptick of interest among legal scholars about economic inequality. But that interest doesn't necessarily translate into an interest in social class as such. (A recent symposium issue of the Texas Law Review, some of which is directly about class but much of which is not, is illustrative of this point, I think.) I know a couple of rising and established legal scholars are interested specifically in social class and the law. Given one of the possible lessons of the election for members of the establishment or elite, I expect and hope that this topic will become more popular. One might well start with a recent commentary by law professor Joan Williams, who to her credit has been working on these questions for a long time.

I suggested above that mainstream, establishment legal liberals might not take a sudden interest in the Crits, and wrote that liberal "scholars of a political hue" may simply follow a substantial number of their establishment confreres in politics and political commentary and "simply argue more forcefully...for more of the same," a prospect nicely captured here. So one possibility is that nothing much will change by way of thinking, scholarly agenda, methodology, or jurisprudence among the legal liberal mainstream, elite or otherwise, although naturally some of the current issues will change. From a political and--perhaps more important for many legal academics, if less openly acknowledged--a professional standpoint, that may turn out to be perfectly sensible, even if I personally think it would be unfortunate.     

Another, more intriguing, possibility is that liberal legal scholars will instead turn to arguments and approaches from the past--arguments and approaches that in many cases have been superseded, or criticized in the intervening decades, to the extent of being pronounced dead. Much of that will depend on the precise state of play of the federal judiciary. But maybe we will see everyone suddenly writing straight doctrinal work (or more straight doctrinal work, since there has already been an uptick in doctrinalism), or invoking and acting as latter-day followers of Bickel, Wechsler, or Ely. The uncertainties of the 1970s brought us Happy Days. The current situation may bring us a revival of the Greatest Hits of Past Liberal Legal Scholarship. If this happens, it would be especially interesting if scholars writing in this re-mined vein do so un-self-consciously and as if the critiques of the past few decades didn't exist. But even if they are more self-aware than that, as times change we will inevitably end up recapitulating whole earlier histories of argument, thrust, and counter-thrust, although faster and perhaps more farcically.    

* I deal mostly with general constitutional law and theory here. I don't address my own sub-field of law and religion. I have some ideas of what might happen here, but not much. Per my post yesterday, my answer on that question is "I don't know yet." 

Posted by Paul Horwitz on November 18, 2016 at 12:22 PM in Paul Horwitz | Permalink | Comments (1)

Thursday, November 17, 2016

What Next?—Part I: Action—Some Options for (Former?) Law Professors

Orly’s post below asks, “How are you changing your scholarship, teaching, and service in light of the election?” It is a potentially interesting question and something many of us have been musing about for some time. Here are some thoughts about options for law professors in response to and in light of the election. In a separate post I’ll talk about what I would be interested in seeing in legal scholarship itself post-election.

As usual, this post is long. (It’s a big question! It demands either a long answer or a really good short one—and I doubt I’m capable of the latter.) I move back and forth to some degree below between taking as a given the assumption that Trump represents a serious threat to “X,” where X represents the rule of law, the welfare of particular vulnerable constituencies, the survival of the United States, and so on, and remaining agnostic on those questions. It seems obvious that answers to the “what next” question depend in part on one’s view on those questions, and on one’s view of both the degree of harm potentially involved and the probability that these harms will occur. One may remain agnostic about some of those questions but still decide to change one’s approach radically, if one believes that the risk of harm may be low but that the harms that might eventuate are immense and difficult to repair. For the most part, I ask about scholarship and teaching in the long run, and less about immediate pedagogical reactions in class to students in the immediate wake of the election, although that aspect of “what next” figures in some of my analysis.*

Two potential responses on the scholarly front to the question “what will you change” may not be voiced by as many people, even if many people share these answers, although they do come up in the comments to Orly’s post. The first is: “Not much, if anything at all.” Like other academics, legal academics work in particular silos and on particular subject matters. I would not expect astronomers’ scholarship to change in light of the election. Law—all law—is a more political enterprise than astronomy under present conditions, or so I assume. But one might write in a legal field or on a topic within that field that one anticipates will not change. A contract law scholar might well have this answer. I leave open the possibility that one may find, or look for, ways in which this subject might provide tools for resistance, reveal underlying structures that support or reify a class or economic structure that makes the current situation possible, and so on. Even if that is possible, one assumes both that some people have particular scholarly interests in such a field that are distant from such concerns, and that others might agree that these questions are valuable but doubt their own ability to contribute much to such work.

A second response is “I don’t know yet.” Again, surely many people would agree with such an answer, even in fields that are very much likely to be affected by the election, but they are likely to be less vocal than those who believe they already know what needs to be done in their field. But even if one has a timeline shorter than Zhou Enlai’s, one may believe it’s simply too soon to tell.

There is a third, important or consequential answer that is possible. It is relevant both to those whose subject areas are likely to be affected by the election and to those whose subjects are unlikely to be affected by it. The answer, in short, is “I’m going to quit, or take a leave from, law teaching.” And one possible thing to do upon quitting is to join the Trump administration, while another is to not do law at all. I explore the reasons why one might quit, and the kind of work one might take on, after the jump.

So: Let’s say that you believe strongly in Trump’s threat to “X,” and either disagree with or for other reasons want to resist any urge to “normalize” his election. Let’s further assume that you believe that in such circumstances, you have a moral and/or professional duty to act accordingly. Set aside, for purposes of discussion, the possibility of leaving the country, although if you believe in the “X risk” that surely is a possible and perhaps a wise response. But you intend to stay and act. For such people, leaving the legal academy, temporarily or permanently, seems like a perfectly logical response and should at least be considered. And in considering it, one should be wary of a perfectly natural and human tendency to rationalize away the reasons to disrupt one’s own life to that degree.

Why leave law teaching? If you believe strongly that there is a high risk of X and that you are obliged to act in response to it, you still have to ask how to act. And there is no reason to assume that the best way to act, the most valuable response you can offer, is in your current job. It might be. But that’s hardly pre-determined. In particular, you are (or, these days, may be) a lawyer as well as a law professor. If you believe action is necessary and that this action includes legal work, you might examine your options and conclude that you can do more important “resistance” work as a lawyer than you can as a legal academic. Maybe you will write some piece that really changes things, or effectively teach resistance strategies to a large number of students, a sufficient number of whom will use those strategies. But maybe you won’t. You almost certainly won’t accomplish the first, and the second is at least uncertain.

On the other side, you might be able to perform concrete legal work for potential victims of the new regime that will make a concrete difference in their lives. It could take a variety of forms: immigration work, criminal defense, estate or small-business planning, real estate, employment law, health law, benefits appeals, or even constitutional litigation. In any of these areas, you might be better able to effect necessary (perhaps urgently necessary) change than you can in your current job as a law professor. Resistance movements or revolutions may require house intellectuals (although they needn’t serve in the academy). But they don’t require a lot of them, and you might do more concrete good as a foot-soldier practitioner than by trying to be one of those house intellectuals. So: Just do it. Quit—or take a leave of absence, if you feel more comfortable with that—and be a foot-soldier practitioner. (A very small number of law professors are elites and unusually qualified and skilled in both practice and the academy. Maybe they would not end up as “foot soldiers,” but as generals. They, too, will have to weigh doing elite work in the academy against doing full-time elite work as a “general” in practice, and may reasonably conclude that they will do more good as the latter.)

One counter-consideration is that an increasing number of law professors have limited practice experience and that many of them have a highly academic set of skills and experience, including doctoral work in some non-legal field. This is a common complaint of critics of the legal academy, both internal and external, of course. Wherever one comes out on the normative question, there is much descriptive accuracy to it. Maybe the comparative advantage calculus will be different for these people. But the benefits to others may still favor quitting even for these individuals, at least assuming they have a JD and either belong to a bar or are eligible to join it. Others might benefit more from a competent but inexperienced lawyer, doing small things, than an expert legal historian or lawyer-sociologist dreaming of big things.

If you decide you can do more good in response to the election outside the legal academy than inside it, where would you do most good? Let me mention three possibilities, leaving aside the rare answer of being a “general.” One is, as I mentioned, as a foot-soldier: an individual lawyer handling “basic” concerns, like helping immigrants on immigration or benefits matters. You might not teach in that area or have significant practice experience in it, but you could learn, and do some concrete good for specific individuals and communities along the way. There’s no glamor or celebrity in it, but neither was there in being a member of the infantry in World War II, and we needed more infantrymen than generals, or logisticians back in Washington.

Two other options seem more intriguing and less likely to have been considered by as many people. The first is: Go to work for the Trump administration. Or, more accurately, go to work as a civil servant, whether as a lawyer or not. Again, I’m thinking of the basic bureaucrat-civil servant level rather than some fancy position. (If you don’t want to “normalize” the election, you might prefer to work at a “low” level rather than a high level.)

You might have two reasons for doing so. First, the government needs lawyers and other symbolic analysts who will loyally uphold the rule of law, follow norms of care and reason rather than arbitrary or punitive action, act consistently with and not against the Constitution and laws, etc. If you worry about this regime being lawless, you can do some good for others by being a loyal and lawful civil servant. A dinosaur has a small head and smaller brain and a big body, and messages from the head to the body take a while to get there. Even if the chief executive is dangerous, or dangerously small-brained, a lot of routine but, to its subjects, important work will continue to be done and need to be done, and a lot of it can take place before or despite whatever messages are being conveyed to the “body” of government from its head.          

Second, you might go into government specifically to resist or subvert the new president. You could do all sorts of things in this capacity: insist on the letter of the law being followed where its spirit is dangerous, and vice versa; “work to rule” where some new governmental policy ought to be slowed or resisted; leak to the press; insist on obedience to the Constitution where you think your orders compel you to violate it; and generally be a spanner in the works or a body slowing the machine. You might, in short, turn the executive branch into a vehicle for resistance to the chief executive. You might do both: work loyally and well insofar as your job allows you to serve and protect others, and act subversively insofar as orders from the top are pushing you to do otherwise.

A third job/response possibility is that the most important work you might do—more important than whatever you might accomplish as either a law professor or a lawyer—might be civic or activist work of an entirely different kind. I’ve argued here and elsewhere that there are systemic dangers to law professors and other academics tending to prefer to speak and act as “experts” rather than as plain citizens. It reinforces the sense of a status-seeking elite or of rule by technocrats, resistance to which was one factor in the election outcome; and it de-emphasizes the importance of general, mass civic action in one’s capacity as a citizen. Maybe you would do the most good, in response to the election and the risk of “X,” in your civic capacity than as either a legal academic or a lawyer. The civil rights movement needed lawyers, leaders, and planners, but it also needed bodies on the line. To call them “foot soldiers” deprives them of the dignity and importance of their efforts. But it’s still the case that any such movement needs a lot of people to follow orders, to march and/or be jailed, to storm the barricades, and so on. It needs citizens acting for civil rights by putting their bodies on the line, perhaps more than it needs “Historians for Civil Rights” or even a twenty-first or twenty-second civil rights lawyer.

You needn’t quit your job to do such work. But to the extent that you believe “X” demands action, you might believe the risk of “X” is so great that it demands full-time action, or that it needs more bodies in Montana, or south Texas, rather than Manhattan or Austin. There are at least reasons to consider the possibility that the best response is for you to become a full-time activist, or to take a job of whatever sort so you can pursue activism somewhere other than where you currently live and teach. It might also be the case that you would be too busy as a law professor, despite the luxuries of time the job generally permits, to pursue activism to the extent you believe is necessary given the urgency and importance of the threat of “X.”

You could decide, instead, to keep your job but devote more time to your activism and much less time to your official work as a professor and scholar: you could stop doing scholarship for a few years and phone it in as a teacher in order to devote more time to civic activism. Perhaps the circumstances justify it, although I’m not sure why keeping your academic job is necessarily a relevant “circumstance.” On the other hand, plenty of people want jobs as legal academics, and some of them might be better qualified than you—either in general, or better qualified to do good for the cause as law professors than you are. And tenure is not, or isn’t supposed to be, a sinecure. It’s an academic protection, not a form of job security for its own sake or a highly paid place to be a journalist, or op-ed writer, or mountain biker, while barely doing your actual work. If you are going to spend most of your time as an activist, whether in a legal capacity or not, maybe you have a moral and professional duty to give up your berth in the academy to do so. Michelle Alexander, to her everlasting credit, gave up her tenure as a law professor because she believed she could do more good elsewhere, and/or that it was more appropriate for her to give up her position for someone else if she was essentially going to pursue work as something other than a “law professor.” And that was before the election. If the election and the regime it brings to power is indeed “non-normal” and the times demand urgent and unusual action, you might decide that your work is most needed elsewhere than in the legal academy, and that under those circumstances it is also right for you to surrender your coveted spot there to someone else.    

I am not urging people to do any of this. I am suggesting that to the extent that the election was non-normal and the risk of “X” is great, not every response to it needs to be undertaken as a law professor. What you personally would like to do is, from this perspective, less important than your carefully, logically considering what needs to be done. If you run that analysis, you might conclude that you would do the most good for the most (or most vulnerable) people not as a law professor, but as a lawyer, a civil servant, or in a purely civic capacity as an activist. Maybe not! Maybe you can do the most good in response to the election by continuing in your present job, with or without changing (or chancing much) what you do on a day-to-day basis. But if you accept the operating premises I have used here, you cannot simply assume this to be the case. And in considering your options, you should avoid the tendency—again, a perfectly natural human tendency—to rationalize yourself into the conclusion that other than changing your syllabus, or picking up a new course, or doing more work on the side as a lawyer or citizen-activist, nothing really needs to change for you.

Although nothing here says any of this, I know how some people are likely to read, or read into, this post, and so I suppose it’s worth adding some denials or clarifications. I understand that few people are likely to actually take up any of these suggestions. In some cases it will be because they conclude that they can be of the most good in their current jobs—although, again, I think there is reason to second-guess such a conclusion and be wary of rationalization. People might therefore conclude that law professors who don’t do anything different, or who really only change little things rather than taking big and bold steps, are hypocrites. I’m not suggesting that. For one thing, I think accusations of hypocrisy are generally made too lightly and quickly and are a conversational dead end. For another, because most people live with and in all kinds of inconsistencies, I don’t consider such charges either especially devastating or especially interesting. In any event, my goal here is neither to set up such an accusation nor even to challenge people to take the possible steps I’ve outlined above. I simply want to offer an analysis of the options available to law teachers who sincerely believe that something needs to change in their work in response to the election, and who believe it for civic reasons and not just because they think the election poses some new questions of largely intellectual interest.

Another conclusion people might draw from law professors doing only a little in response to the election—changing their syllabus and so on—rather than acting more boldly is that these individuals really are normalizing the election, or believe the risk of “X” is smaller than their more urgent rhetoric suggests, or something like that. That may well be true for some law professors. It is surely true for at least some of them. But I would not make that a general assumption. Law professors, like everyone else, are capable of inconsistency, imperfection, devotion to considerations—family and job considerations, financial considerations, and so on—other than the needs of others, etc. Maybe academics are more prone to these tendencies, given the comfortable and enviable nature of their jobs and the relative contentment and inertia of the managerial-professional class; I don’t know. But nothing about such tendencies is unique to them. They may sincerely believe in the importance and urgency of the situation, even if they do relatively little about it. Again, my goal here is only to explore calmly some of the broader options and implications of the basic question of what law professors ought to do in light of the election.     

* Well, it was supposed to, anyway, but I didn't get around to it, so I'm adding it here. One option, or response to the options presented here, would be to envision one's primary response as offering support, sympathy, and guidance for students who are upset about the election result as such (perhaps a more academically questionable function, although I don't think sympathy, about a variety of issues, is out of place as a general function for teachers), have been made the subject of hateful and threatening remarks (easily within any teacher's purview, I think), and feel that they or their loved ones or communities are vulnerable. One can certainly understand this as a response, without any foreknowledge about whether this reaction will be indefinite or short-term and ease or increase with time. But it is not clear that it is sufficient as a reason to stay in the legal academy as opposed to choosing one of the other options discussed here. Going out of the academy and into other communities might give one an opportunity to offer the same comfort and sympathy to people who feel even more vulnerable, have been subjected to even worse threats and abusive language or conduct, and possess even less of an institutional or community support system. Obviously both possibilities are factors to be weighed. 

Posted by Paul Horwitz on November 17, 2016 at 07:34 AM in Paul Horwitz | Permalink | Comments (0)

Tuesday, November 08, 2016

Where to Riot: A Modest Proposal

As a non-citizen, I will, alas, not vote today. (I am in the process of applying for American citizenship, and the election is one but only one of the reasons why I am finally getting off my duff and applying. Another reason is that I teach con law, and am tired of introducing the Constitution by talking about "You the People.") In this election in particular, I have felt a mix of seriousness about and frustration with both the election and the state of discussion (or "discourse," to maintain my academic credentials) around and about it. I also take the view, which is a personal view and one that I do not insist applies to everyone, that following the moment-to-moment headlines, commentary, and pseudo-news on days like this does not necessarily demonstrate or indicate a commitment to politics as a serious and weighty activity. To the contrary, it may have as much to do with treating politics as a fairly weightless leisure activity or, in Stephen Carter's words, "[politics] as a hobby." (Others, in fairness, will spend the day engaged in more meaningful and direct political activity, such as going door-to-door or driving poorer voters to the polls, although they will be vastly outweighed by the hobbyists.) I will therefore spend much of the day avoiding television and social media. Instead, I will sit quietly and read Virgil--I have been spending the election season, which was coincident with recovering from surgery, reading classical literature--and Duncan Kennedy.

I do want to make one modest proposal, however, before the returns are in and before we know what will happen on the streets in response to the election. There has been much discussion and speculation--some serious and sincere, some frivolous, and probably some that is both--about whether one outcome or the other, or the absence of a definite outcome tonight, will lead to rioting. A while back, for instance, Sandy Levinson mused about possible "(justified) rioting in the streets" if Trump wins by a close vote. And there has been general discussion about the possibility of riots by the "alt-right" or populist supporters of Trump if Clinton wins. I don't welcome the prospect of rioting in either case. (Others are, perhaps, more ambivalent about it.) But I won't discuss the "will they (we)/won't they (we)" or "should they (we)/shouldn't they (we)" questions here. I address a more practical question: Where should one riot?  

My modest suggestion is that any group deciding to riot, or encourage and organize rioting, should reject the usual rioting sites: general central gathering places, the downtown or business districts, or--worst of all--the most underprivileged and vulnerable neighborhoods, which are often where rioting occurs. Instead, if people riot--which, again, I hope they don't--they should riot in the residential neighborhoods of what we might broadly call the elites or the upper middle class.

I am perhaps less concerned with rioting in downtown or business districts as such, insofar as they are more likely to lead to property damage to insured businesses than to more "personal" damage. (I am not here making the argument, popular in some circles, that violence directed against property is not "real" violence.) On the other hand, the idea of targeting these areas tends to rely on a stereotyped vision of some idealized place that consists of nothing but the headquarters of banks, brokerage houses, and multinational corporations. Perhaps that's realistic in a few places, thus suggesting among other things the tendency of the popular imagination to view all places as cities, and all cities as large cities--and, at that, all large cities as basically four or five of the largest cities, those most likely to draw a narrow class of individuals. My downtown/business district has some local branches of banks and a couple of Starbucks. But it also contains a lot of small businesses, run by individuals whose lives and resources (and those of their employees) are closely tied to making a living through those businesses. Damage to those businesses is real damage to the well-being of workers and other individuals on the ground. Even the "name-brand" consumer businesses in my downtown are more likely to be franchises owned by fairly "regular" individuals, some of them recent immigrant families. As for the more idealized version of rioting as a kind of Fight Club scenario aimed at gargantuan consumer businesses and safely empty corporate buildings, I see little evidence that it has been effective in the past, and I question whether it is especially well-aimed. In its standard-cultural-tropeness, it also may come closer to the "hobby" model of radical political action than to a serious commitment to politics, radical or otherwise.

As for rioting in the neighborhoods of the poor and disadvantaged, a tendency that may be exacerbated by residential segregation by class and race and a lack of transportation resources, it seems really poorly aimed. And its potential harm is great, striking as it does at the homes and businesses of those who are least likely to be fully protected by insurance, who live and work in these neighborhoods and can least afford damage to them, and who depend on local businesses for food and other staples. Some of these neighborhoods are still recovering from, or will never fully recover from, riots that occurred in those areas decades ago.  

In various ways, both on the left and the right and--at least in an abstract and perhaps not deeply felt (or, in a bad-faith way, actively denied) way, in the liberal and maybe the conservative center--many people believe that the causes of the current election and its discontents, and the causes of the discontents that led to the current election, can be laid at the feet of those people who have the most actual control over and power in the current political, economic, and cultural system. That doesn't just mean the 1 or 2 percent, the Kochs and Soroses. (In any event, they are most likely to be fully insulated in their homes and neighborhoods by public or private security forces and by geographical isolation.) It means something like the top ten or twenty percent of income-earners in the country. It comprises those individuals most likely to have effective political representation; to be contributors to, workers in, or complicit in big-money politics and the party establishments; to work as professionals in those institutions that reinforce or reify the current system, among which I would include the academy; and to be most effectively insulated from the costs and harms of that system and its unequal allocation of power and representation. Insofar as one might want to "bring the war home" to those who are most responsible for the current state of affairs, to force the relevant individuals and institutions to internalize the full consequences of a system whose benefits they richly enjoy and whose costs they effectively externalize, and to make more urgent the need to restructure a system that draws dissatisfaction and anger on the part of the dispossessed, those on the left and right and at least some in the center ought to consider the value, if there are riots, of literally bringing those costs "home" to the class that bears the most responsibility for an ineffective, gridlocked, more or less oligarchical and/or elite-favoring system.

If that's right, then people planning to riot or organize riots might start their planning work by looking at the many websites that provide a look at individual zip codes by household income and other socio-economic factors. The median household income in the United States in 2014 was $51,939. National averages are problematic because of variance by state and locality, but according to this measure the top 20 percent in the United States has a household income beginning at $111,000; higher up the steep curve at the top end of the distribution, the average household income of the top 10 percent begins at $155,000. I would go with the top 20 percent, but I acknowledge that there is room for debate. Whatever your starting point, if you're going to riot, or organizing a riot, or more or less gently excuse or welcome such rioting, why not start with those neighborhoods? Isn't it better and more politically relevant and responsible to riot in Park Slope, or Hancock Park or the west side of LA, or Mountain Brook in Birmingham, or Walnut Creek in the Berkeley area, or Hyde Park in Austin, or in my downtown historical district or the "north of the river" area in Tuscaloosa, than in some neighborhood whose residents are least likely to either be responsible for the current power structure or able to handle the costs of the rioting?

Social media provide a positive benefit here. They make this kind of organization more possible, and also facilitate a kind of shared civic involvement in this radical direct action. Let's say you consider such rioting "justified." One could use social media generally, or institutions like the hashtag, or sites like and other popular petition-gathering and organizing sites, to start a movement in which you acknowledge your privilege, and your complicity in and the advantages that you receive from an unjust political structure, and invite rioters to start with your high-income zip code. Just imagine the wonderful hashtags that you could use on Twitter in inviting the rioters to visit your neighborhood! "#PleaseRiotInMyNeighborhood," "#I'mWithThem," "#IGaveAtHome," "#ThePurgeStartsHere"; these are just a few suggestions. Users of social media are nothing if not inventive and clever about these sorts of things. 

Of course there will be some regrettable inconveniences. But if you are one of the people in an affected neighborhood--and I take it that many readers of this blog, including legal academics generally, will be in that class, both by virtue of the individual income of the legal academic and the likelihood that he or she is in a dual-professional-income household--you should be better able to deal with those inconveniences than others. It is easy enough to keep one's children in a safe place; they probably already enjoy disproportionate educational and other institutional advantages over others, and you probably already read to them and engage in other forms of close parental involvement in education, so they can most easily afford some time off from school; and you are probably well-protected by insurance. (In some cases, you could also retreat to a vacation home or second home.) And surely you can bear any harms more easily than genuine small-business owners whose resources are all tied up in their business--and much more easily than those who live in poor and disadvantaged areas.

It's just a modest proposal, to be sure. And, of course, there may be few or no riots. Certainly I hope that is the case, whether the riots are "justified" or not. Still, it makes a lot of logical, political, and moral sense to me.

And with that, I return to Virgil and Duncan Kennedy and wish everyone well on this election day. 




Posted by Paul Horwitz on November 8, 2016 at 09:52 AM in Paul Horwitz | Permalink | Comments (0)

Friday, November 04, 2016

A Word in Defense of "Ballot Selfie" Laws

I appreciate Andrea's post below about so-called "ballot selfies" and laws restricting them, or more specifically restricting the sharing of photographs of completed ballots. She argues that ballot selfie bans are likely to be both ineffective and unconstitutional. Her arguments on the first point seem reasonable, and as a civil libertarian I am sympathetic to her second point. (Although I think that, despite significant domestication efforts by the courts, it still makes some sense to think of at least some elements of election law as being their own subject, with their own history and vagaries, and not as wholly a creature or subset of First Amendment law. For discussion and citations on the general topic, see, for example, this article by Heather Gerken.) So I am not disagreeing with her conclusion. But I would like to say a word, if not in defense of the bans or of a particular outcome, then in favor of the proposition that there are genuine concerns about photographing and sharing completed ballots: that they are not merely a matter of ancient history, but are of continuing relevance.

This requires some background about the University of Alabama and local Tuscaloosa politics. A problem of long standing here is the existence of "the Machine," an underground or secret society that in effect serves as a coalition and coordinator of some of the older (and, yes, extremely whiter) fraternities and sororities on campus. The Greek life is a big deal on campus here, although last time I checked the numbers it involves only about a third of the students here, and only some of those students belong to Machine houses. Simply because they are coordinated, however, the Machine and its member houses exert an outsized influence on on-campus life and politics. It is all too rare that "independent" candidates for student government leadership, including African-American candidates, can win against the Machine's chosen candidate, although it sometimes happens, including recently. Aside from general tendencies toward bloc voting, various forms of social coercion, and general dirty tricks, one of the ways the Machine enforces its choice of nominee among its members has been the insistence that members of Machine houses show how they voted. Various methods have been employed by the university to cut down on this. But the demand that member students demonstrate that they voted for the Machine candidate has been a major part of its dominance over campus politics. Reforms are ongoing, and they include making clear that no student or student group can demand to see how any individual student voted.  

Unsurprisingly, especially given the general low vote turnout in local elections, enterprising local politicians have realized they can leverage this vote, by attempting to convince the Machine to support some local municipal candidate and order its member students to do likewise. Turning to interest groups or affinity groups for political support is nothing new or unusual, or even wrong in itself--although one may condemn particular means of doing so, such as the use of "walking around money," the role of "politiqueras" in South Texas Democratic politics, and other methods, and one may feel still worse about any local politician attempting to win the support of a student group, like the Machine and the houses that belong to it, that has been complicit in decades of racial segregation. And the means of winning that support can be fairly innocent, like relying on common acquaintances and backgrounds or handing out campaign T-shirts; or they can be more insidious and corrupt, such as funneling money to the Machine and/or hiring Machine officials as "campaign workers," with the fairly clear if implicit bargain that the Machine rep will earn his or her money by pressuring all the members to vote for that candidate. 

I know a little something about this because my wife served (and served very well, by all accounts) on the Tuscaloosa City Board of Education, and was defeated for re-election in 2013. She lost because an ambitious local candidate for the chair of the board secured the Machine vote, and did so in part by running a former Machine member as her opposition in our voting district, which features a large student population, including many of the Machine houses. I won't relitigate the issue here--it was litigated, and she ultimately lost at trial, although that second link (to the word "litigated") suggests some of the reasons the loss was problematic, such as the widespread ignoring of subpoenas to testify, misconduct that the judge let go without penalty or pursuing the matter further, and local opinion was unhappy about the result. I will simply say that one of the allegations in the case was that the Machine had pushed its students--many of whom, it turned out, were not even properly resident in the voting district, but voted there because they were pushed into doing so--to vote for its selected or bargained-for candidates, and promised such things as wristbands for admission to election-night parties and concert tickets to its members who returned to their house and showed a designated representative their "I Voted" sticker. Under the circumstances, that's all it could really do, given the secrecy of the ballot. (Why the students didn't simply stand up to the Machine and refuse to vote if they were not properly resident in the district or did not feel comfortable or informed voting on local issues, or vote for whoever they pleased in defiance of their orders, is a mystery to me.) But if the Machine's coordinators could have demanded, or had thought to demand, that the students provide a photograph of their ballot, to demonstrate that they actually voted for the candidates they were ordered to vote for, I don't doubt they would have. (Update: I am told that some students in Machine houses were in fact urged or required to do just that, although I can't verify it definitively.)   

The conduct, or misconduct, that was involved in that election involved a classic suite of behaviors that are of long standing in American political history, such as the offering of things of value in exchange for votes and the funneling of money toward groups whose assigned role is to guarantee votes for a particular candidate. Some of that conduct is legal and some of it is illegal. But the general system of providing and safeguarding the integrity of elections by providing for voting by secret ballot was a response to the widespread nature of this conduct. It is very much a longstanding structural mechanism to ensure the integrity and legitimacy of the vote. Some of this history is noted in Rick Hasen's editorial arguing that ballot selfies are bad for democracy.   

One may disagree with Hasen's conclusion, and I have already indicated my ambivalence given the arguable First Amendment issues at stake--although, again, I note that one should not simply and mechanically apply general First Amendment law here without noting a long set of historical practices, structural mechanisms and concerns, and somewhat sui generis, functional or institutional analysis within election law. Nor am I making any arguments about the frequency or prevalence elsewhere of the kinds of schemes that were involved in the Machine's involvement in Tuscaloosa politics, that are likely to continue until the Machine is brought above-ground or dismantled, and that certainly will continue to figure in on-campus politics here. I will simply say that our experience here suggests that the conduct that gave rise to the system of ballot secrecy in American politics has certainly not disappeared entirely. Concerns about the potential value of photos showing one's actual completed ballot in effectuating and enforcing vote-buying schemes and other efforts to interfere with genuinely independent voting are far from "purported" and should carry ongoing weight.   

A few words about my university and community, since I live and work here and would like to see it do well, yet still saw fit to publicize its problems in this post. As the New York Times article linked to in the second paragraph suggests, the makeup and nature of the university has changed a lot in the last decade or two. A major part of that change has been the influx of out-of-state students, who--I hope--are finding ways to enjoy some of the university's customs and traditions (obviously, that's not a uniquely Southern or Alabama thing; most universities have them, although in the South they do love them some customs and traditions) while changing and improving them and discarding the ones that ought to be discarded, in part because they have no inherited stake in or from-the-cradle love of those traditions. Another important element of the change has come from Southern students themselves, many of whom are disgusted by some of the conduct and traditions they have seen and would like to see the student associations they belong to become genuinely racially diverse. When it is the students themselves who are so eagerly pushing for change, I do not want to perpetuate benighted assumptions about the South that are so widely popular among people who do not live here and would reject out of hand living here, instead righteously and conveniently choosing to live in a few select parts of the country where the structural mechanisms that ensure segregation and cocooning, by class if not by race (although the two are often closely linked), are so quiet, familiar, and taken for granted that they can convince themselves they are living justly and have no moral complicity in the problems with their own community. The story here, and the place itself, is more complicated than the still-conventional stereotype suggests. I would rather have people come to live here, whether as students, professionals, or academics, take advantage of all the good things it has to offer, and work to change and improve things, in part simply by being here and thus changing the culture, than living comfortably if semi-blindly in ostensibly problem-free enclaves elsewhere. And although the university as a whole has been too slow to push for change, and sometimes adults have reinforced the very systems the students have fought against, there are also many individuals and groups, on and off campus and including key members of the university faculty and administration, that have worked and continue to work to make the place what it often is and always ought to be. The Machine is an embarrassment to the university, and will be as long as it exists in its current form; and at least some of the local politicians who rely on the Machine for their votes are an embarrassment to the city. It has an outsized influence. But it is not the whole population of Tuscaloosa, which I love and where I have found a very supportive and decent community, nor is it the whole of the university itself. Still, as long as there are sorely needed changes, I'm quite willing to acknowledge and publicize them. I just wouldn't want it to be the one and only takeaway about my university and my community. All this is beside the main point, which is that there are reasons, not just "purported" reasons or rationales, to be concerned about ballot selfies. But I felt it needed saying.        



Posted by Paul Horwitz on November 4, 2016 at 11:13 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, November 02, 2016

Our Friend and Colleague, Norman Singer

Here at the University of Alabama, we are mourning the loss of our friend Norman Singer, who taught in the Law School and the anthropology department. Norman died on Monday at the age of 78. His obituary in the local paper provides some biographical details:

He was Professor Emeritus of Law and Anthropology at the University of Alabama, and for 40 years held full tenured professorships in both departments, though he was proud that he never took salary or benefits from Arts and Sciences.

Professor Singer had a wide-ranging international career as well. After graduating from the Wharton School at the University of Pennsylvania, he worked for a year in Stockholm. A trip through Russia and into Iran introduced him to the Middle East. He returned to the States, graduated summa cum laude from Boston University Law School and in 1964 and joined the Peace Corps with his wife, the former Bethany Wasserman. They spent four years in Addis Ababa, Ethiopia where Professor Singer was a member of the first law faculty in Ethiopia and where two sons were born.

Prof. Singer joined the University of Alabama Law School in 1971 and in 1975 received the SJD from Harvard, with an anthropological/legal dissertation on traditional legal systems in Ethiopia.

While teaching full time at the University of Alabama, Professor Singer also fitted in numerous projects in countries as diverse as Albania, Cambodia, Croatia, Egypt, Fiji, Iraq, Trinidad, and Zanzibar. He became known as a major expert in restructuring land tenure in countries with poorly-organized or non-existent private land systems. He also took leave from the University to spend 1980-82 as the Ford Foundation Res. Rep. in the Sudan.

Professor Singer may be best known in the legal world as the author of a treatise, Sutherland, Statutory Construction. In recent years, he has shared authorship with his eldest son, Shambie J.D. Singer.

He was born in Boston, Mass. to the late Morris and Anna C. Singer. His first marriage ended in divorce.

He is survived by his wife, Anna Jacobs Singer; sons, Shambie, Jeremy (Nicole) and Micah (Ali); stepdaughters, Joanna Jacobs and Stephanie Jacobs; special children, Ejvis Lamani, and Anil and Aron Mujumdar; grandchildren, Sofia, Avery and Zeke Singer; and sister, Helen Silverstein.

"Some" details, I said. I would add a few more. Norman was a blast. He was boisterous and humorous. He had decades-long friendships with many of his students. His office door was always open and he was usually shouting out of it from inside to someone or other. (In a lively, not an angry, way.) And just as he was a big part of the life of the Law School, his wife, Anna, was and is a major part of the Tuscaloosa community and especially of our local synagogue; his stepdaughters, Stephanie and Joanna, were and are a big part of the local community as well.

When talking to hiring candidates about the strengths and distinctive qualities of UA and Tuscaloosa--and particularly given the difficulties of convincing hiring candidates, some of whom have lived in only a few and fairly standard places, that it is possible to move somewhere quite different (in some respects; all college towns have many shared traits) and have a good and fulfilling life--I generally focus on the strong, supportive sense of community I have found here, both at the Law School and across and beyond the university. Especially as a parent, and given all the medical issues I've faced in the past decade, it's been an extraordinarily important and rewarding aspect of life here. When I think of that, I am often reminded of one of the first visits my wife and I made here with our daughter, then about a year old, while we were still figuring out where to live and so on. Norman and Anna had us over to their house, a few blocks from where we live now, to welcome us and offer their advice. Their children had long since reached adulthood, but they found some old wooden toys for our daughter to play with while we talked. It's a little thing, I know, but a sense of community is built up from many such little things. It was a warm and welcoming visit and, between life in the Law School building itself, life in Tuscaloosa more generally, and our involvement with the temple, one of countless numbers of occasions when we were grateful for the warmth and friendship of both Norm and Anna. We will miss him, and extend our love and condolences to his family.       


Posted by Paul Horwitz on November 2, 2016 at 11:14 AM in Paul Horwitz | Permalink | Comments (0)

Friday, October 21, 2016

Tradition Project Conference: Tradition in Law and Politics

I'm in New York today for a conference called Tradition in Law and Politics. It's the kick-off conference for the Tradition Project, an intellectual enterprise under the auspices of the Center for Law and Religion at St. John's Law School, which is directed by my friends Mark Movsesian and Marc DeGirolami. Although there are obvious strong links to the study of law and religion, both the conference and the project are broader in their concerns and topics. The sessions over the next couple of days will cover the definition of tradition, the American religious tradition, the American political tradition, the common law tradition, and the constitutional law tradition. 

This is a great and timely project and topic. One assumption on hearing about this conference might be that it's timely in a rear-guard sense, in that the regnant culture and moment are antipathetic toward tradition, and the rejection of tradition as a basis or reason for doing (or not doing) something is achieving important victories in, say, decisions on substantive due process and equality and arguments about religion. (My equipment here doesn't allow me to hyperlink very easily, but one might want to take a look at Neil Siegel's Balkinization post and piece on Justice Alito's role on the Supreme Court. Although I assume Siegel is unlikely to agree very often with Alito, there are commendably scholarly and sympathetic strains, in Siegel's linked piece, of interest in and acknowledgment of the kinds of people for whom Alito may be said to be writing.)

In a different register, however, at least some of the current bewailing of the state of our political culture also involves a form of traditionalism. This time it comes from a broader leadership class, caste, or establishment that includes both establishment conservatives and establishment liberals--including the same regnant liberals who may well reject tradition in many areas. Here, although they might not talk in terms of tradition, there is a strong ongoing lament for the radical loss or disruption of a settlement, or set of customs and practices, that enabled some degree of civil and productive political discourse, compromise, fellowship within the political class and beyond, and so on. Abstracting away from the rather egregious current figurehead for challenges to that tradition, recent populist movements here and elsewhere, on both left and right, and their sometimes destructive power, have both emphasized the value of our traditions and served as a reminder of the way that those traditions can be hollowed out, or left isolated by changes in the broader culture, or be rendered vulnerable by the failure to include and involve larger communities of people: people of color, members of the working class, denizens of regions suffering from economic and/or cultural dislocation, etc. In that sense, although there's no doubt that many readers of this post, or for that matter people here at the conference table, might associate a "Tradition Project" with mourners or rear-guard fighters on the traditionalist conservative side, and have little sympathy for such a project, there are broader reasons why such a project is timely, and those reasons ought to make more people, including many who would tend to label themselves as anti-traditionalist, more sympathetic to this project than they might be inclined to be at first blush.

Unsurprisingly, there are plenty of representatives in the room of, as a speaker put it, people who are "disposed to respect tradition," many of them religious, politically and culturally conservative, or both. As I've written above, there are at least two reasons the appeal of the project and the subject should not be limited to those people: 1) if the "traditionalists" are a minority voice today, that fact can itself be interesting and worthy of study; and 2) people who see themselves as non- or anti-traditionalist may discover, upon reflection or in response to emergencies and other exigencies, that they are more traditionalist than they think. I certainly hope the makeup of the room widens, and that one of the reasons for this is that a more catholic group of scholars knock on the door and express their interest in participating. The prerequisite, such as it is, is not that one be a traditionalist, but that one be someone who takes tradition seriously. 

As per usual, I find myself in the middle. I'm convinced that there is value in tradition itself and in tradition as a subject, and concerned about any approach to law, politics, or culture that sees it as irrelevant or negative or illegitimate as a source of practice or authority. To my mind, one of the potential long-term goals or values of this project should be to explore the ways in which soi-disant rationalist liberals or progressives, or indeed anyone of whatever political stripe who sees himself or herself as operating purely rationally or empirically, end up believing in and relying on tradition, and react hostilely to challenges to those traditions they hold dear--and the ways in which they suppress or deny their own traditionalism and their own reliance on tradition as an authority. But I am also in some sense a tradition skeptic, and think it's possible both to take tradition seriously and be somewhat sympathetic to it, and to be interested in finding ways of defying it, subverting it, or introducing viruses into it. All of thes activities, of course, have a tradition of their own and are part of tradition itself.  

In any event, great topic and great conference and I'm delighted to be here. I may have more to say, but there are other bloggers here and no doubt they'll have some reactions and posts of their own.


Posted by Paul Horwitz on October 21, 2016 at 10:33 AM in Paul Horwitz | Permalink | Comments (1)

Tuesday, October 04, 2016

On "The Troublesome Use of Photographs . . . and Other Images" in Federal Court Opinions

Bear with me.

In 1997, Hampton Dellinger wrote an interesting commentary in the Harvard Law Review titled "Words Are Enough: On the Troublesome Use of Photographs, Maps, and Other Images in Supreme Court Opinions." Dellinger wrote that "visual attachments" to written opinions have potential value, including "offering the possibility of offering an impact more powerful than words." But he warned that "the unique attributes of these attachments pose special dangers." Even in cases where the accuracy of a visual attachment--a map or photograph, for instance--is not in dispute, it could still be problematic, because its "probative value [could] be outweighed by its prejudicial impact." Dellinger recommended that the Court stop using visual attachments altogether, or at least use them with great care. His article was fairly clearly directed at ostensibly useful, relevant, and probative visual attachments; judging by his discussion of Chief Justice Warren's use of photographs in Estes v. Texas that were more in the way of persuasion than directly relevant evidence, I think it's fair to say he would be even more critical of the judicial use of visual attachments that serve a purely or essentially persuasive purpose, relying on emotion rather than evidence. 

Dellinger's article has been cited a number of times. In Nancy Marder's article "The Court and the Visual: Images and Artifacts in U.S. Supreme Court Opinions," Marder is supportive of the use by Justice Kennedy, in Brown v. Plata, of a stark photograph of a metal cage in which prisoners were kept. The photograph, she writes, is "very powerful, and adds a different kind of support--beyond the statistics and the words of experts--to Justice Kennedy's opinion." Marder disagrees with Dellinger's proposal that such aids not be used at all. But she adds emphatically that "they need to be used with care," that "the image with the greatest potential harm is the photograph, which can be very powerful and can elicit a strong emotional response from viewers," and that "the justices need to exercise restraint in deciding whether to include a photo in a highly contested area of the law. The most serious potential harm with photos is that they could arouse a strong, visceral response in viewers in an area that is controversial or emotionally charged. In such cases, the photos, rather than adding to reason and argument, will undermine them."

Finally, in "Taking Images Seriously," Elizabeth Porter addressed directly the use of visual images for essentially argumentative purposes: "visual icons," or images used "for purposes that are tied more closely to rhetoric than substance." She wrote--I think descriptively not normatively, based on what follows in the article--that "the naturalness" of such images makes [them] less subject to criticism than judicial use of extraneous or rhetorical textual examples." Porter proceeded to argue that "there are significant risks to allowing images to seep into the legal vernacular," including "the risk that image-driven legal argument will vitiate the intellectual rigor and civility of legal discourse." This risk, she wrote, "is more subtle [than the other risks she sets out], but perhaps more pernicious and less susceptible to regulation." It could result in "a language that appeals to emotion over intellect." Like Marder, Porter urged judges to use great care in deciding whether to incorporate images into their opinions, especially images that are "outside the record" and "only tangentially related to the subject matter of the case." 

All this suggests a few points that seem to fall within the center of opinion about the use of images in judicial opinions. I think it also represents the general consensus among lawyers. These images should be as relevant and accurate as possible. Because they may have a great visceral and emotional impact, they should be used with great care, if at all. Judges should be especially reluctant to use them when they function essentially as an appeal to emotion, and when that appeal to emotion may overshadow the specific subject of the case. These problems are likely to be especially present and grave when the issue under review is a highly emotionally salient or hot-button one. Where a judge does so anyway, judges and scholars should be ready and willing to engage in public criticism of that judge. 

When someone (other than me, since I do it all the time) writes this much in so dry a fashion, it's a fair guess that the tl;dr approach is deliberate, and is perhaps intended to secure gradual agreement through a series of discussions and examples that are not the subject of any recent conduct that is still subject to the passions and distorted judgments of the day, before holding up precisely such an example and asking people to judge it against that standard, regardless of the politics or strong feelings involved. And that is exactly what I'm up to here.  

Here is an interview--a softball interview, unfortunately, of Jimmy Fallon-like toughness, although Fallon of course is not a journalist--between Mark Joseph Stern of Slate and Senior Judge Damon Keith of the Sixth Circuit. The interview concerns Judge Keith's dissent in a recent voting rights case, Northeast Ohio Coalition v. Husted. As Stern puts it, "Keith included in his dissent a [photographic] gallery [of] 'martyrs of the struggle of equality,' slain civil rights heroes 'whose murdered lives opened the doors of our democracy and secured our right to vote.'" In the interview, Judge Keith justifies his decision as follows:

I wanted to dramatize the racist attitude of the majority. Look at those pictures. These are men and women who died for the right to vote. I was really so hurt by the decision of the majority of the court. My grandparents lived in Georgia, and they were not allowed to vote because of racism. I thought about them. . . . I said in my dissent precisely what I thought the Ohio law was about, and I wrote about the struggle that we still have in this country for the right to vote. And I said, look at these pictures. All those men and women, white and black, Jew and gentile, gay and not-so-gay—this is what they lived for! This is what they fought for! This is what they died for!"

I cannot comment on the election law issues. I can say that the gallery of photos and captions--ten pages worth, or more than one-quarter of the dissent--is moving and powerful. I can say that built as it is on a history none of us should forget, it has a powerful visual and rhetorical impact. I can, in short, say all the things one is expected to say, not least because I feel them sincerely. That said, I find it very difficult to conclude that the inclusion of these images, from well beyond the record or the specific issues in the case, comes anywhere near the standards proposed by those scholars who have written on the issue of the use of visual images in judicial opinions. Again, I think that standard is no outlier, but fairly represents the center of lawyerly opinion on this question.

If those writers were right that the issue deserves attention, then Judge Keith's decision to include the gallery deserves attention from those who are concerned about or interested in the use of visual images in judicial opinions. It requires either public justification--principled justification consistent with past views on the subject--or public criticism. It is obvious that Stern could and should have pushed back more in the interview than he did. (The interview, the piece notes, was edited and condensed. If he did push on the point, he should have included that in the edited version.) For background purposes, Stern might have started by reading this article by his own Slate colleague, Dahlia Lithwick, in which she argues, citing Dellinger's piece, that the photographic display in Brown v. Plata was questionable given the power of the opinion itself, and questions whether "the court [should] be using visual aids to prompt emotional responses . . . in the first place."  

One long last note. I hesitated some time before posting this, for two reasons. (Well, three, but an ambitious person's fear of being viewed negatively for posting something on this topic is not a good reason.) First, Judge Keith is an extraordinary man who has had a remarkable career and contributed significantly to the law on many issues, not least those involving the American original sin of race. Even those who disagree with some or many of his rulings can and should show respect for his exceptional life and long record of public service. The second reason is his age. Judge Keith is 94 years old. Perhaps his age itself, combined with that record of a long and distinguished life, counsels respectful silence even if he erred in including the gallery, at least according to the standard offered above. Age sometimes demands its own tribute, and sometimes the tribute is to let pass what, at least on the view above, would be a lapse in exercising the best judicial judgment and temperament. Perhaps that is compounded where, from the judge's perspective and perhaps that of many others, the arguable lapse is motivated by passion over an enduring injustice, and over what it means for a long history of struggle and sacrifice. It seems to me, however, that this last point may affect the ultimate argument about whether the display was improper or whether, instead, it was justified by extraordinary circumstances; but this should form part of the discussion about the propriety of the "gallery" itself and should not affect the decision whether to publicly raise that issue or not. Really, respect for or concern over his age is the key factor here. 

Perhaps, then, a respectful silence would have been the best thing. But my decision to post anyway is itself based on respect. Whatever his age, Judge Keith still sits on the bench. Respect for him, as a judge and as a person, entails taking him seriously, and taking him seriously includes being willing to criticize him or, at a minimum, raise questions about the propriety of the gallery. Silence in these circumstances can be respectful, but it can also be patronizing, condescending, or dismissive. If he is fit to serve, and I certainly do not suggest otherwise, then he is fit to be criticized. Moreover, while I cannot help but feel his advanced age is a good human reason to be sensitive, I also note that most of the time, while we acknowledge that judges are human, we also treat their work product as that of professionals, and subject to professional commentary, questions, and criticism.

Finally, raising these questions here would have been less necessary if Stern had done his job properly. That the gallery was unusual as a matter of judicial practice and arguably involved the use of visual aids not for reasoned argument but "to prompt emotional responses" was obvious on its face. Indeed, it is likely that the unusual nature of the gallery prompted the Slate interview in the first place. Slate and other media sites these days are keen on the idea that it's not enough to just give someone an uncritical platform; the journalist has the duty to push back and ask tough questions. Stern's interview obviously fell short of that standard; it was more of a mash note. If he had done his job, readers would have had some additional and necessary context by which to judge the use of visual aids in Judge Keith's dissent. Whether they then criticized it or approved of it, they would at least have been relevantly informed. Since Stern didn't do his job, someone must.

For all that, I hesitated, both because of the powerful and sensitive issues and history that formed the subject of the gallery and because of the judge's advanced age--and, no doubt, out of a desire for professional self-preservation. But the issue deserves to be aired, so that people can consider what the proper general standard should be for the use of emotionally stirring, extra-record visual displays by judges, and either criticize the display in this case or come up with a sound reasoned justification for it.                  

Posted by Paul Horwitz on October 4, 2016 at 09:53 AM in Paul Horwitz | Permalink | Comments (0)

Thursday, September 29, 2016

Will the Civil Service Revolt, or Work to Rule, in a Trump Presidency?

For various reasons--medical, spiritual, and intellectual--I have not followed the election closely and have increasingly tried to stay away from much election commentary. Having made up my mind long, long ago who I think ought not be president in this election, much of the coverage has been fairly irrelevant to me, and therefore fallen into the unnecessary-tsuris category, or into the category of things one reads not because they constitute a form of civic education or engagement, but as a kind of luxury good or type of entertainment. I worry about that seemingly widespread taste on a normative level--and I have not found the content especially entertaining anyway. The average commentary has not interested or pleased me much for similar reasons, especially social media commentary. Friends elsewhere have suggested to me, somewhat persuasively, that for some, engaging in this commentary can serve some kind of therapeutic or emotional or self-expressive need, although the need for those people to speak has little to do with anyone else's obligation to listen. Some of it, being aimed fairly clearly at people who already hold the same view, can fall under the category of solidaristic expression, which is just something that has never interested me; oddly, although I'm a big supporter of pluralism and of institutions, I'm not much of a joiner.

And a lot of the commentary, perhaps especially on legal blogs (or maybe I just have a biased sample, since I am more likely to read legal blogs than other sources), bothers me because it strikes me as simultaneously being inexpert and attempting to trade on the ostensible authority of the writer. I feel fine about "experts" engaging in speech and action as citizens, and without the use of their "name tag"; I would like to see a lot more of it, in fact. But I'm less comfortable with "experts" who opine publicly on things outside their sphere of expertise, or ostensibly within it but drawing more (or entirely) on their personal civic and political views than on anything having to do with their expertise as such. It's not just that this strikes me as an illegitimate use of one's ostensible authority that has bad long-term consequences for democratic politics. It's that I think it serves as a kind of costless luxury good or form of entertainment for the person doing the opining him- or herself, and thus as a distraction from the kinds of things he or she should or could be doing qua citizen. Your mileage may vary, of course, or you just might not mind getting your entertainment in this particular form.

There is one question I would like to raise, though. I think it would be unfair to say I raise it as an expert. I teach constitutional law and legislation/regulation (although I'm just starting in on the latter subject), but that hardly constitutes expertise across the whole range of questions and sub-topics that this entails. It's more accurate to say I know enough to find the question interesting and to raise it, but would rely on others, hopefully more expert, for interesting answers to the question. The question is, if Donald Trump is elected president, how will the body of government employees I will generally lump as the "civil service" react? Will they faithfully implement the government's policies? Will they resist doing so, but only insofar as those policies violate professional, legal, and/or constitutional norms? Will they resign in larger numbers? Will they engage in somewhat passive resistance or "uncivil obedience," by dragging their feet on implementation in a way they would not do for another administration? Or will they rebel more directly and forcefully--if perhaps not always openly? Administration changes often see a big shift of appointed government officers into regular civil service positions, a practice called "burrowing." If Trump is elected, will this happen on a larger scale than usual, precisely to facilitate this kind of resistance?

I have not seen much on this, although I haven't searched too thoroughly. There are more stories asking what Trump will do to the civil service than asking the reverse question. There is a New York Times piece by Eric Posner--the most interesting, because most dispassionate, legal academic who has written on the election, in my opinion--on "What President Trump Could or Couldn't Do," the last three paragraphs of which address this question. It comes up in this Vox piece (although I should note in all candor, if perhaps in slightly off-topic fashion, that I loathe Vox), which notes early on that "a massive civil service bureaucracy has a will of its own--and the kind of job security that The Apprentice never had to deal with." I would be remiss if I didn't note this Glenn Harlan Reynolds piece, even if I am highly dubious of its bottom line.

If there is more, I haven't seen it, although one assumes there is more out there. In particular, I wonder whether the subject has come up on blogs, listservs, Facebook pages, and other sites for, by, and drawing (likely anonymous) commentary from career civil servants. It strikes me as an interesting and obvious question, and the kind of question for which there are at least a few experts out there who might have something to contribute that actually is expert. It also strikes me as something that has immediate positive aspects, but also obvious potential for serious negative long-term consequences. People who have seen other, useful discussions are welcome to email me with links, of course.                  

[Two updates: A friend points me to this post on Lawfare. And another friend reminds me that another form of resistance would likely be via complaining and/or leaking to Congress and the press.]  

Posted by Paul Horwitz on September 29, 2016 at 11:58 AM in Paul Horwitz | Permalink | Comments (0)

Friday, September 09, 2016

A Take on Domnarski's Posner Bio

The really quick take is that I largely agree with Peter Conti-Brown's review. But perhaps a little more content than that is okay.   

Like many ardent fans and sometime critics of Richard Posner, I was very excited by and had huge hopes for Richard Domnarski's Posner biography, which is now available. And I was equally dismayed when the physical book arrived on my doorstep. Quantity is not quality, God knows. But the book on first appearance struck me as very thin for a life that is packed with such intellectual ferment and set in such interesting times. A doorstop is not a classic by virtue of being big, but some subjects require more than a pamphlet. The structure of the book, on which more below, struck me as exacerbating the problems caused by the book's brevity. And the index is incredibly, and surprisingly, inadequate, both too small and too arbitrary. One may be somewhat charitable toward the author about this, at least if one has ever prepared one's own index. But the fact remains that someone--the author or the press, or both--released an academic biography into the world more or less lacking what I consider an obvious and necessary appurtenance.

I warmed up to the book considerably on reading it, in many respects. And, more or less like Conti-Brown, I think the best part of the book is its first two chapters--not incidentally its most traditionally biographical chapters. Posner's writing is unusually available and accessible. Of course a description and assessment of it must form much of the meat of the book. But learning about Posner the man, or about the interaction between the man and his work or the man and his times, would be something relatively new, Larissa MacFarquhar's New Yorker profile aside. And Posner gave Domnarski access to his archive and especially his correspondence, which provides many of the most interesting, human, and seemingly revealing moments in the book. More--much more--of that would have been great, but Domnarski makes very good use of it.

Especially good, perhaps, is the introduction and its weaving of themes that pop up (but could have been even better developed) throughout the book. His observation (on page 8) about Posner forcing lawyers out of their advocacy role in oral argument and thus leaving the client "suddenly without a lawyer" and giving Posner "an open field" is interesting. So is his general comment on the same page: "Looming over our look at Posner's unfolding careers as an academic, judge, and public intellectual is the fact that Posner has never thought of himself as a good fit for the law. He has described himself in an interview as not being fully socialized into the law." Of course I view these qualities as virtues, for Posner at least, and they are not news, but Domnarski uses them well in examining Posner's life and work. Generally, the interviews Domnarski conducted and the correspondence he uses provide some of the most interesting (and gossipy), if briefly used, connective tissue. And, because he is unconstrained by the structure that makes up the last two-thirds of the books, he can range more freely and insightfully in the first third into Posner's early life and professional career up to his appointment to the bench. 

After that, for the most part, an "If it's Tuesday, this must be Belgium" spirit of list-making takes over. Domnarski opens the book by writing, "If anything, [Posner] seemed destined for a literary life. The core of his life as it has unfolded has been such a literary life, even within a career in the law, so that he has always been a writer first and a lawyer second." A literary biography that proceeded purely by list-making and precis ("In late 1940, Auden wrote 'September 1, 1939.' It was about the war. In early 1941, Auden wrote...."), without either digging deeper into the most important works or analyzing them through the writer or his times in a serious way, would be the wrong approach to a writer's life. The structure Domnarski adopts for the biography, with its repeated categories and bite-sized treatments, is too close to that kind of approach, and imposes a harmful stricture on the book. Reading a two or three page summary in every chapter that lists Posner opinions taken up by the Supreme Court, with short summaries and a count of Posner's "success" or failure on review, is not a major contribution, and the repetitive nature of such such sections grows tedious. Given Posner's own skepticism toward judicial biography and at least occasional fondness for data-mining and influence assessments as substitutes for biography, one can see why Domnarski might feel caught betwixt and between in his structural choices. But Posner is first and foremost a writer, not a judge, and Domnarski should have ignored any such preferences on Posner's part. Perhaps he did, and chose the structure independently; if so, he chose wrong. I would add, Posner-style, that many of the things that Domnarski does of this sort in the book could have been relegated more efficiently to appendices, where the approach could have been more unapologetically data-driven and the narrative of the book left to develop more fully.

This is not to say there are not many good moments in last two thirds of the book. There are; if my patience flagged after the first two chapters, it didn't run out. But these promising shoots are mostly strangled by the surrounding structure instead of flourishing. And, as Conti-Brown notes quite aptly, just as the book does too little with the life of Posner, it also does too little with his times. One might argue about whether Posner's life really demands a "literary" biography, but one can't argue that, if he is to be treated as a judge and academic who engaged highly with his culture and the politics of his times, then a judicial biography of Posner must treat those issues more deeply. Not because the intramural academic fights and their relations to the times are fun and gossipy--although, hell yes, that too--but because they are relevant and revealing and place Posner and his influence in a more meaningful context.  

A last point: The key for Domnarski's book, at least in his thinking about the biography itself, shouldn't have been Posner's Cardozo study, but his 1995 book Aging and Old Age. It is not Posner's most famous book or the key to unlocking his life's work. For me, that would be the 90s trilogy of jurisprudential books, although a combination of his Economic Analysis of Law and Sex and Reason would do nicely too. But a biography of Posner appearing at this date (Posner is 77) must be, in some measure, an assessment of Posner in the winter of his years. That's especially true because, despite Domnarski's efforts to paint Posner as unchanging (albeit unchanging in his combativeness and contrarian sensibilities), Posner has been especially disputatious of late, the disputes have been especially public, and some of his quotes about the disputatious issues have been especially casual. Depending on one's perspective, it is at least reasonable to speculate about some changes in his positions, manner, approach, or concern for systemic constraints and consequences, for himself or others.

Of course Domnarski mentions this, but briefly and rather dismissively. Posner is "getting older," he notes, but "there's little direct evidence of his age having an effect" on him. And he quotes Posner saying, in a 2014 interview, "As long as my physical health holds up and senility holds off, I will continue to work as I have. I am one of those people who dread retirement. I hope I won't overstay my welcome."

That's not enough. Old age, Posner writes in his book, and the words are still true, is a subject that "carries a heavy emotional charge. . . . It is not so taboo a subject as sex [is that still true? I'm not so sure], but considerable reticence, embarrassment, and denial surrounds the public discussion of many aspects of it." The taboo should be broken, in this book of all places. To be clear, not every suggestion that a famous person of advanced years has changed, or declined, or gotten more careless in certain respects, is tantamount to a loose accusation of "senility," which in any event should not have been Posner's benchmark. Indeed, as Posner argues in the book, "A refusal to acknowledge normal, and in particular normal cognitive, aging can create exaggerated doubt about the competence of old people," by pretending there is nothing, no change or slowing in function, between total vitality and utter senility. Posner argues that federal judges show fewer signs of decline with age, for various reasons, including the nature of the job and the staff structure that has grown around them. But he also argues that the aged are on average "worse listeners and less considerate speakers than young people," "invest less in the creation of human capital and therefore have less to gain from receiving inputs of information from other people," and "have less incentive to conceal egocentrism and to engage in cooperative rather than self-aggrandizing conversation." Are Posner's recent public statements, and even some of his recent written work, so very far from those words? Are the constraints on aging effects he mentions as relevant to a judge's extrajudicial statements--or even to his judicial writing, insofar as it is not hemmed in by a clerk-driven model of judicial work?

But these kinds of questions are still largely verboten. One might expect people to be more willing to ask these questions of Posner, given the number of antagonists he has encountered over the years. But two factors, at least, inhibit them. One is that his recent animadversions have involved statements and views, on things like same-sex marriage and the failings of the late Justice Scalia or the Roberts Court, that are catnip to liberal legal academics. These individuals form the vast majority of the legal academy, which is not especially distinguished by candor or disinterestedness. And another is that most of us are well aware that Posner still has us licked in terms of smarts and productivity. (A 75-year-old with a history of "extraordinary capabilities" may still be far "capable than a mediocre 30-years-old," he writes. That observation hits home well enough.)  

And there is a third factor restraining people from asking these obvious questions, which is that Posner is a famous and much-admired judge. Law professors have long said they are all Legal Realists now, but most are, at best, a sludgy mix of Realists, courtiers, high priests, and client-less appellate lawyers. It is striking that Justice Ruth Bader Ginsburg's extrajudicial statements about the election this summer were examined from many angles--but rarely if ever from the obvious one of asking whether they signaled a decline in reasoning function or, more plausibly and charitably, an age-related decline in prudence and judgment or an indifference to institutional considerations from someone who will not be around long enough to care much about systemic consequences. Asking the obvious questions--whether about Ginsburg or Posner, and whatever the ultimate answers--would not have hurt anything other than their feelings. Those are not serious academic concerns anyway--especially for academics, who love to boast of "speaking truth to power." Does anyone doubt that judges--even the ones we like--have power?

My point is not accusatory. It's true that I have been disappointed by some of Posner's recent output, relative to my all-time favorites among his writings. But if this is decline, then, to paraphrase the lady at the diner, "I'll have what he's having." Still, a pre-posthumous biography of Posner is necessarily going to be heavily concerned with his declining years, especially given that they have been so crowded with public incident. Asking more about whether and how he has aged should be a natural part of the book. It would have contributed to a sense of Domnarski having produced a life of Posner, not just an inventory. And it would have been a proper tribute to Posner, as well as a sound biographical move, to ask those questions more forcefully and forthrightly.     



Posted by Paul Horwitz on September 9, 2016 at 08:28 AM in Paul Horwitz | Permalink | Comments (0)

Friday, September 02, 2016

Another Upside of Being an Academic: Chronic Illness

I haven't been blogging much lately. That's not unusual: it's been true for the past two or so years. Some of it has to do with exhaustion factors associated with blogging itself. (That gives me an opening to promote this upcoming collection edited by Michael Desch of Notre Dame, Public Intellectuals in the Global Arena: Professors or Pundits?, in which I have a slightly dyspeptic chapter on bloggers as public intellectuals.) The other reason is that I have been generally sick the past two years and had ankle replacement surgery this summer--a pleasant bookend to my last summer, which featured fusion surgery on my other ankle. I will say as a quick side-note that although it's relatively early, both surgeries appear to have gone very well and I'm looking forward to brighter days. 

Chronically-ill-academic pieces are kind of a genre at this point, and I've written here before on living with chronic pain and illness. Given that one of the reasons I'm blogging less is my dislike of repetition, I won't rehash (entirely--in looking back over this post I see I did limp over some well-trodden ground), although the subject, having consumed a big part of my life and energy for the past two years, is of understandable if selfish interest to me. I did want to apologize for being absent here, though, especially given how much of the burden has been shouldered by Howard and our guest bloggers, and felt somewhat compelled to say something about why I was absent. And given that my skill set as a blogger, such as it is, involves saying professionally imprudent things, but at such length that no one notices, I thought I'd add two points--one mildly contrarian, the other mildly "rude"--that I haven't seen made much of in the law professor posts I've seen on the subject of academics and chronic pain or illness. 

The first is that, all things considered, one has to be counted as damned lucky to be an academic if one has to be chronically ill. The usual narrative and counter-narrative about law professors, certainly post-2008 but before then too, involves claims on the one side that law professors, like many other academics, wallow in free time and light duties, and extravagant claims on the other about 80-hour weeks and how much harder one works as a legal academic than one did in private practice. Both are exaggerated and both obscure the single greatest academic privilege concerning the use of one's time: flexibility. With few exceptions, law professors and other academics (although we are probably even better situated) have incredibly few fixed time commitments. Sure, we sometimes work long hours (though not as much or as often as the defenders assert). But for the most part we choose whether and when to do so. And, apart from classes and some service obligations, long pauses between major professional activities are easily--no doubt too easily--available.

And then there is all that is included in the word "summer." No, it is not a vacation--at least not necessarily, although surely some or many law professors use it in that manner and there are a couple of academic summer activities that are not easily distinguishable from vacations. Certainly it shouldn't be one. The fact remains that there are few jobs in which, if you need to plan a major absence from work for medical or other reasons, you can do so as easily as academia. Since I joined the University of Alabama in 2007, I have had two joint replacements, two joint replacement resurfacings, spinal fusion, and ankle fusion. There are other things I (not to mention my long-suffering family) would rather have done with my Christmases, Thanksgivings (and the stretch between the last class in November or December and the beginning of classes in January, if not "summer," is pretty big), and summers. Some of them even involve work! Of course my colleagues and institutional officials have been supportive and my students forgiving, and that helped greatly. But much of it had to do with the seasonal academic schedule itself, and its time flexibility. (And one might note cautiously and sotto voce that the relatively low expectations of the academy itself can help too. I assume everyone is familiar with Dr. Stantz's famous quote on the subject. )

One could and perhaps must add all the usual caveats. It helps to have the "right" kind of chronic illness, I'm sure--physical, painful but not utterly debilitating, and so on. It helps if you can time your chronic illness for after tenure (although I was chronically ill before tenure, if perhaps to a lesser degree, and did not find the tenure hurdle insuperable or even terribly burdensome). It helps if you have a good support system, and if your institution is not blind to your needs or stupid or intolerant. Large universities, like other institutions and workplaces, are not always as good as their word on various things, and sometimes lag far behind decent large private workplaces in developing and implementing best practices for employee care. No doubt many will find things like this report of interest. Complaints there are aplenty and always will be.

Still, apart from "member of the idle rich," which I'm not sure is a job description, being an academic seems to me to be a pretty great job for someone with a chronic illness. Given a choice, I would not be chronically ill. But since that wasn't an option, being an academic was a stroke of luck. And not a blind stroke, either. I'm sure many people's academic vocations are encouraged, not only by whatever forced reading time and isolation accompanied their childhood if they were chronically ill then, but also by the features of the academy that make the lifestyle relatively amenable to and possible for people with chronic illnesses. In this as in much else, I am convinced of the too-often ignored point that biology, or physicality, is destiny. For every FDR, a thousand others seek careers that will not tax them physically, perhaps literally, to death. And many a dynamic and prolific scholar is also, and by no means incidentally, a physically healthy one. 

In any event, others with more expertise can add all the reasons we shouldn't be satisfied with the academy, the legal profession, or the workplace generally on questions of chronic illness. I simply want to add the mildly contrarian counter-note that all things considered, the academic is a pretty great place to be chronically ill. And this, I must say, gives me a certain amount of sympathy--not absolute, but still--with critics of law schools and/or law professors. Anyone who finds the time for six surgeries over nine years without major structural work interruptions has to have at least some sense of being privileged to have this job. Occasionally, someone who knows my situation will compliment me on managing to be so productive despite this or that. (Doubtless others with other situations, not necessarily involving their own illness but things like family commitments or care for aging parents, receive similar compliments from time to time. If not, they should.) I'm always touched by their fondness and kindness, even when I disagree with the assessment. But I surely cannot be the only similarly situated person who thinks that the wonder is not what I manage to get done, but how little some otherwise unfettered (whether by physical illness or other matters) individuals seem to do. I don't mean this churlishly, and of course many people labor under burdens others know nothing about. It is just a general observation about the enormous privilege of having this job, and perhaps about the moral and professional obligation to use all that time flexibility and luxury well and to the best of one's energy and ability. "I would like a good, happy, well-balanced life with time to smell the flowers" is not a sufficient justification for collecting, or continuing to collect, an academic salary. 

I call the second subject "rude" in the sense of something accurate and obvious said at the wrong time or place. That subject is drugs--God bless 'em. I suspect this portion of the monograph is more autobiographical than broadly helpful, except perhaps to those who will experience a shock of recognition about the subject.

I doubt my illness had much to do with it, so much as the simple passage of time, but I have grown much more attached to my students, and to teaching, over the years. I was emphatically never disdainful of teaching or anything going along with it, but a lot of the biggest personal rewards of my job have come from teaching and from being able, over time, to track the development of my students after graduation, in practice and in life. This is a part of the job that, however seriously you take it, can be less visible at first, partly because you know a smaller base of students and especially if, like me, you do enjoy the scholarship and writing side of things. It also takes some time, first to master the "script" you build around your teaching materials, and later to toss out the script and change your teaching every year in response to changing circumstances and interests. The less consuming those start-up aspects of the job are, the more unmediated and rewarding your interactions with students become. And there is one final important aspect of teaching that is perhaps under-emphasized: the sheer fear of failure. It's one thing to disappoint yourself, as far as writing goes. That activity only involves one person alone in a room. It's quite another to face a room full of students, who have paid in time and money and effort to be in that seat and have every right to expect your best. One cannot fail them. 

I think I can say that, with some but relatively few exceptions, I have not, even though the past two-plus years have unfortunately been unusually filled with pain. That's not to say I haven't had bad days, as we all do, when my energy level was lower than I wanted and so on. (I have found that if you are up-front and candid about this, students respond with great generosity. When I have told my students I'm feeling low, apologized, and asked them to supply the extra energy, they always have, to my profound gratitude. Often their energy lifted up my own. And that experience, and debt, certainly has encouraged me to look and listen more carefully for students suffering from burdens of their own, often unrevealed, and doing my best to reach out to them.) Other areas, no doubt, have suffered or required some adaptation. My office hours were more iffy, so I have relied more on setting up scheduled meetings with individual students at times when I know I will be in better shape. My inbox looks like my office: messy. I ask a thousand pardons of those afflicted by delayed or unanswered emails. But the classroom is our one major time-fixed obligation and the one thing we really can't stint on at all.

At least for those reachable by useful drug treatments, this is an area where one gives a heartfelt prayer of thanks to Big Pharma. If I may be still ruder, I have been helped immensely in the last few years by opioids and other heavy pain meds. One can go elsewhere for more wholesale condemnation of those drugs, whose increasingly strict and not always sensible regulation has made (law-abiding) doctors afraid to prescribe them and driven (law-abiding) patients through endless hoops to obtain them. But for those for whom they are needed, they are essential and return one to a semblance of life. They certainly saved my ability to function in the classroom in the way students can reasonably expect: with energy, mobility where that is possible, a joy in performance, and an ability to ignore the pain for the 50-90 minutes it takes to teach the class.

They have other problems and side-effects, of course. One of the reasons I've found the last two years so difficult is the almost impossible effort to achieve a workable balance between dealing with pain, on the one hand, and dealing with the effects of pain meds on the other. Both affect one profoundly and invisibly, and their effects have to be observed indirectly and in retrospect rather than being immediately obvious. Too little pain medication and you can't function at all. Too much, or even the right amount, and everything you do is a little more befogged. And your amount of energy and presence is affected either way.

Suffice it to say, the kind of cost in mental acuity that either pain, or pain meds, or the mix of both, imposes wreaks havoc on one's ability to write. And it has other, sometimes less visible, costs. I had a wonderful visiting semester elsewhere last spring, in which I enjoyed meeting many faculty and others, got to know many incredible students, gave a bunch of talks and participated in various activities on and off campus, and otherwise learned and enjoyed a great deal. But it was shadowed the whole time by a mix of pain and pain meds that drastically shortened my productive day by several hours on either end. I enjoyed the experience and think I did "well," in the way we talk about these things. But I wonder how much more I would have enjoyed it had I been in perfect health. Nevertheless, and without exceeding my dosage or anything of the sort, I was comforted to know that even if some of my interactions with faculty were cut short by my inability to be in the building and at my best 14 hours a day, I could time my pain pills just right so that I could give my students everything I had. I might need to collapse after that, but at least it would be on my own time.

In discussions of chronic pain by academics, I see less discussion of drugs, pain pills, and the like--let alone the presence of a dread word like "opioid"--and more general discussions of "living with" chronic pain or illness, although drugs are a key component in living with them. Hence my suspicion that there is something a bit "rude" in talking about them. I don't think it's just that their use is assumed or implicit. One may worry--I do, a little and maybe more than a little--about being typed as too sick, or as bad lateral material, or just about being vaguely associated with whatever stigma accompanies the use of serious pain meds, even when it's necessary and legitimate and helps rather than hurts one's work. I'm as ambitious as the next person, and then some, and would hate to be typed in that fashion. And I will say that one reason I'm so delighted by the latest surgeries is that they have already had an immensely beneficial effect on my general level of well-being. They have ended most of my day-to-day pain and made it possible to cut my pain meds almost to nothing. (I have one more joint on the chopping block, but not soon, I think. I'll cross that bridge when I come to it.) I am very confident that I will return to some of my best natural energy levels and use them in the classroom, on the blog, in shrinking my inbox, and God willing in more academic writing. Still, drugs helped me an immense amount and doubtless have helped many academics and others in similar situations. Yet they are rarely mentioned, possibly for the reasons I've suggested. In my view, however, anything worth carefully-not-mentioning is absolutely worth talking about.

I will close by adding that I consider myself absolutely blessed: by the drugs that helped, by the doctors and surgeons who helped too, by the institutions and students who did so much as well, and by the extreme flexibility of the academic life, which all things considered can be one of the best possible fits for the chronically ill. But not just by those things. I could have been sicker. The illness could have been something worse than chronic. It could have been chronic but of a different sort, and/or impossible to do anything about. Or, like many, I could live in a time and place where no treatment was or is available, or no access to treatment was or is available. There are many such people. No one enjoys being sick, or suffering pain, or having a heap of surgeries. But I nevertheless view the whole thing, not perhaps over but certainly in an excellent state of equilibrium right now, with a sense of having enjoyed remarkable good luck and--and I do think it's the mot juste and am unashamed to use it--blessings.                    


Posted by Paul Horwitz on September 2, 2016 at 08:20 AM in Paul Horwitz | Permalink | Comments (0)

Tuesday, August 23, 2016

University of Alabama School of Law: Hiring Notices

We have several potential openings at the University of Alabama School of Law this year, in both the "doctrinal" and "clinical" areas, and my colleagues have asked me to post notices for them. Here goes:

1) THE UNIVERSITY OF ALABAMA SCHOOL OF LAW seeks to fill entry-level/junior-lateral tenure-track positions for the 2017-2018 academic year. Candidates must have outstanding academic credentials, including a J.D. from an accredited law school or an equivalent degree (such as a Ph.D. in a related field). Entry-level candidates should demonstrate potential for strong teaching and scholarship; junior-lateral candidates should have an established record of excellent teaching and distinguished scholarship. Although positions are not necessarily limited by subject, applications from those who study and teach commercial law (including contracts and sales) or torts (including products liability) are especially welcome; business law, family law, and insurance law are also areas of interest. We welcome applications from candidates who approach scholarship from a variety of perspectives and methods (including quantitative or qualitative empiricism, formal mode ling, or historical or philosophical analysis). The University of Alabama 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, and interested applicants should apply at; the positions remain open until filled. Questions should be directed to Professor Heather Elliott, Chair of the Faculty Appointments Committee ([email protected]). The University of Alabama is an Equal Employment/Equal Educational Opportunity Institution. All qualified applicants will receive consideration for employment without regard to race, color, religion, national origin, sex, sexual orientation, gender identity, gender expression, age, genetic information, disability, or protected veteran status, and will not be discriminated against because of their protected status. Applicants to and employees of this institution are protected under federal law from discrimination on several bases. Follow this link to find out more: “EEO is the Law”      

2) Assistant/Associate Professor--Director Elder Law Clinic:

The University of Alabama seeks applicants for the position of Director for its Elder Law Clinic. The Director oversees and/or conducts all phases of legal advocacy for clinic clients, teaches and supervises clinic students, and manages law clinic staff. The position is for an appointment as assistant or associate professor of clinical legal instruction, with opportunity for promotion and security of position. MINIMUM QUALIFICATIONS: a J.D. degree from an ABA accredited law school, a distinguished academic record, and experience as a clinical teacher or practicing lawyer. Candidates must be licensed to practice law in Alabama or become licensed no later that one year after accepting the position. We seek applications from entry-level and lateral candidates with demonstrated potential for outstanding law practice, clinical education and scholarly achievement.    SALARY and RANK: will be commensurate with experience. Apply  online at
The University of Alabama is an Equal Employment/Equal Educational Opportunity Institution. All qualified applicants will receive consideration for employment without regard to race, color, religion, national origin, sex, sexual orientation, gender identity, gender expression, age, genetic information, disability, or protected veteran status, and will not be discriminated against because of their protected status. Applicants to and employees of this institution are protected under federal law from discrimination on several bases. Follow this link to find out more:
Requests for reasonable accommodation during the application/interview process should be made to Associate Dean Thomas Ksobiech at (205) 348-4509 or [email protected] The position will remain open until filled. Please refer questions about the hiring process to Professor Jenny Carroll, Chair of the Clinical Appointments Committee for the 2016-2017 academic year, at [email protected].
3) Assistant/Associate Professor--Director Domestic Violence Law Clinic:
The University of Alabama seeks applicants for the position of Director for its Domestic Violence Law Clinic. The Director oversees and/or conducts all phases of legal advocacy for clinic clients, teaches and supervises clinic students, and manages law clinic staff. The position is for an appointment as assistant or associate professor of clinical legal instruction, with opportunity for promotion and security of position. MINIMUM QUALIFICATIONS: a J.D. degree from an ABA accredited law school, a distinguished academic record, and experience as a clinical teacher or practicing lawyer. Candidates must be licensed to practice law in Alabama or become licensed no later that one year after accepting the position. We seek applications from entry-level and lateral candidates with demonstrated potential for outstanding law practice, clinical education and scholarly achievement.    SALARY and RANK: will be commensurate with experience. Apply  online at
The University of Alabama is an Equal Employment/Equal Educational Opportunity Institution. All qualified applicants will receive consideration for employment without regard to race, color, religion, national origin, sex, sexual orientation, gender identity, gender expression, age, genetic information, disability, or protected veteran status, and will not be discriminated against because of their protected status. Applicants to and employees of this institution are protected under federal law from discrimination on several bases. Follow this link to find out more:
Requests for reasonable accommodation during the application/interview process should be made to Associate Dean Thomas Ksobiech at (205) 348-4509 or [email protected] The position will remain open until filled. Please refer questions about the hiring process to Professor Jenny Carroll, Chair of the Clinical Appointments Committee for the 2016-2017 academic year, at [email protected].
Comments are closed but contact info can be found in the notices above. 

Posted by Paul Horwitz on August 23, 2016 at 04:12 PM in Paul Horwitz | Permalink | Comments (0)

Wednesday, July 13, 2016

Ginsburg's Double-Down: Not Defensible--And Also Interestingly and Problematically Elitist

Since the round of interviews I wrote about yesterday, Justice Ginsburg has doubled down, in an interview with Joan Biskupic. (Biskupic's interview, incidentally, raises the same question I noted yesterday: Who is more damaging to Justice Ginsburg--her enemies, or her friends?) I thought her last set of remarks was inappropriate, and that the new remarks are even less appropriate and less defensible. So, naturally, there have been some defenses. Those defenses are mostly wrong.  

I'll address those points in my next post. (I may be slow getting around to it, for medical reasons. For the same reason, and with apologies, I'm going to close comments.) First, I wanted to deal with some related issues--more far-flung in certain respects, perhaps, but also less likely to be remarked upon by the legal academic commentariat, which is basically conventional, non-radical, and establishment-oriented. Although these observations are less immediately related to the question whether the defenses offered on Ginsburg's behalf are sound or credible, I think they provide some useful background to that question. They also add some necessary points unlikely to be raised elsewhere, since most law professors enjoy essentially and often unconsciously privileged positions and are not likely to go in for self-wounding class warfare.

So, a couple of preliminary and certainly opinionated observations. The first has to do with the substance of Ginsburg's remarks. One understands why politeness might dictate not saying much about that. Still, one can and should ask: Do her remarks offer something new, insightful, wise, expert, or authoritative? Does she say anything that one would consider useful and novel regardless of the speaker's identity, or that draws usefully on any particular expertise? Or are her remarks essentially conventional, unexceptional, and banal? My view is that they fall easily into the latter category. This view does not depend on whether her opinions are right or wrong. I think some are right, and some buy into a conventional narrative that is so un-nuanced as to be more wrong than right. But even if they are all correct, they are still all conventional, unoriginal, and uninteresting. One remembers a fuss a while back when Justice Scalia said that he had stopped bothering to read anything other than the Wall Street Journal and the Washington Times. The opinions Ginsburg offers here are fully consistent with the views of a well-educated if impressionable person who reads, and only reads, The New York Times and The Washington Post every day, takes what is written there as conventional wisdom, and then passes it along. Apart from the identity of the speaker, there is no value-added in the substance of anything Ginsburg says in her latest interview. That's not a terribly kind thing to say, perhaps. But it is ultimately relevant to the underlying question whether her remarks are appropriate or defensible. Extraordinary extrajudicial statements may be justified because the circumstances are so novel, or (in my view, and only on rare occasions) because the remarks are so interesting and valuable that we would lose something if the judge remained silent. I'll deal with the first case later. But these remarks certainly don't fall into the second category.

Even if banal, are her comments expert? One can, of course, hold a conventional opinion that is still buttressed by expertise. Hearing it from one more expert doesn't really add all that much, but it is still an expert opinion, at least. None of Ginsburg's remarks fall into the category of expert statement. Of course she has more experience dealing with the press, with powerful people, and with fellow members of the elite than most of us could ever hope for (or, perhaps, want). But her remarks do not really seem to call seriously on any of that experiential knowledge, and certainly not on any of her legal expertise.  

So we are left with the fact that Ginsburg indulged herself in a series of statements, vastly amplified by the megaphone provided by her fame and her office, that if offered anonymously on the comments section of, say, Slate or Salon, would read like every other comment to be found there. Not that there's anything wrong with that! No one should expect people to be wise because they are smart, or original because they are wise, or brilliant because they are heroic, or to have fascinating and unconventional opinions on matters that are essentially outside their expertise. Ginsburg spoke as the average well-educated citizen-member of a certain cohort of the population offering a fundamentally conventional set of opinions. That's fine, or would be if she were simply the average citizen of this kind and was not also making use of an ethically constrained public office as a megaphone. But it certainly doesn't make her remarks vital or necessary. 

And this is the preliminary point I wanted to reach before showing why Ginsburg's defenders are wrong. Ginsburg's statements essentially present a representative, non-expert elite view--not wrong, necessarily, and perhaps quite right, but also not new or interesting. It is not an authoritative view in itself. But, because of who she is and because the statements are broadcast as coming from a Supreme Court Justice, they do trade on her authority, and get vastly more attention than they would have if coming from the average, anonymous, highly (perhaps unduly) self-confident and assertive Ivy graduate.

It's worth thinking a little about the ways in which her remarks speak to, and about, problems with class, social status, and elites. Our democracy would, in my view, be healthier if citizens paid no more attention and gave no greater weight to extrajudicial statements on non-legal matters from Justice Ginsburg than they did from the next randomly chosen person. And it might be healthier still if members of elites did not--as they so often tend to do--think of their own non-expert opinions as especially sage, interesting, courageous, or well-qualified. Failing that, if and when elites, by virtue of some office or position they occupy, are given special attention, authority, and weight by listeners when speaking in an unofficial capacity on matters outside their authority and expertise, but in circumstances which they know take advantage of their office and status, it does not seem like a heavy burden to ask them to use that status lightly--if at all. The failure to display that kind of modest silence, aside from the particular concerns that arise where a Supreme Court Justice is involved, speaks in broad terms (I am not accusing Ginsburg herself of these qualities) to the risks of arrogance and hubris that may afflict the successful members of what people sometimes think of, consciously or not, as a kind of natural aristocracy of high SAT-scorers. 

One last aspect of the overlooked elite-centric nature of Ginsburg's remarks is that they were essentially costless. Supreme Court Justices have lifetime tenure and, as many others have complained on many other occasions, are substantially insulated from the same kinds of ethical rules and requirements that would confine many another professional. They make enough money and can draw on enough resources to insulate themselves quite effectively from many other pressures of everyday life or notoriety as well, if they choose to. Ginsburg can and, famously, will retire whenever she feels like it and not before. She will not face any serious repercussions for trading on her official status and celebrity in this very public fashion, other than being condemned on blogs or subjected to angry tweets. An Army staff sergeant with a couple of mortgages who decided to throw on her uniform, head downtown to the local newspaper, and make the same remarks would....Well, most likely she would not be paid any attention at all; she's not a Supreme Court Justice, after all, just a common soldier. But if she were, she would face the risk of the kinds of serious and even devastating disciplinary and professional consequences--military discipline, perhaps dishonorable discharge--from which Ginsburg at this point is essentially completely insulated. And, unlike that staff sergeant, for every critical remark she gets, Ginsburg will also receive any number of garlands from like-minded friends, fans, and courtiers. It's always worth remembering that one reason elites sometimes, if rather rarely, "speak truth to power," whatever that phrase means exactly, is because doing so is fairly cheap for them. It seems to me that if we're going to consider fully and seriously how we feel about Ginsburg's recent escapades and whether they are defensible, we should not overlook the heavy elements of class, elite social status, and privilege that feed into the whole affair.  

More on the question whether Ginsburg's remarks were defensible, which essentially turn on two arguments--"emergencies justify extraordinary conduct," and "all citizens are entitled to speak"--in the next post. 


Posted by Paul Horwitz on July 13, 2016 at 01:04 AM in Paul Horwitz | Permalink | Comments (0)

Monday, July 11, 2016

Judges--and, Perhaps, Journalists--Behaving Badly

I was glad to see I was not the only person who thought Justice Ginsburg spoke obviously inappropriately in a couple of recent press interviews, in which she pronounced on presidential politics--although there is no particular reason to think she has any special expertise, insight, or wisdom about presidential politics--and on current cases. There is no point in loading another dollop of high moral dudgeon on about this, but there are a couple of other interesting things to be said about it.

The most interesting thing, to me, is what Jonathan Adler points out today on the Volokh Conspiracy blog. I'll just quote the relevant material from Jonathan's post:

[Ginsburg] said Heller was a “very bad decision.” As originally posted, the story reported that Justice Ginsburg added “that a chance to reconsider it could arise whenever the court considers a challenge to a gun control law.” For whatever reason, that line was removed and no longer appears in the online version of the article. [UPDATE: The missing language on Heller has not been restored to the article.]

UPDATE: It appears that this is the second time within the past week that comments from an interview with Justice Ginsburg as originally published were later removed. The other example, caught by Rick Hasen, is here.

I was going to write about the changes to the Liptak story before seeing this second example. I hate to attribute motives or actions to others on the basis of what "obviously" must have happened, because I know life is regularly more boring and contingent than that. From my brief experience in journalism, I know that although editors often help prevent reporters from screwing up, reporters nevertheless routinely have to fight editors to make sure that their edits don't introduce new inaccuracies into a story. And that was in the pre-Internet days, when one fought only one or two editors for only one or two editions of a story, rather than having to put up different versions of stories all day and struggle against a larger and less experienced cadre of editors. Still, one obvious possibility was that Justice Ginsburg, or someone from the Court, had asked Liptak or his editors to change the story between one version and the next, so that Ginsburg would not be seen as publicly trumpeting her desires and intentions for future cases. Against that, however, one has to factor in the possibility that the original version was the inaccurate one, and that the requested correction had to do with accuracy and not with saving the Justice from embarrassment. 

I still refuse to impute or ascribe motives or anything else absent much stronger evidence. But it becomes much harder to accept the charitable readings so easily in the face of the second example, noted by Rick Hasen and reported by Jonathan Adler. In both cases, it appears that the story was changed to soften some of the details provided by Justice Ginsburg, on the record in a press interview, and thus reduce the damage done by the interview. That damage includes reputational damage in both instances, at least  for those fuddy-duddy traditionalists who still think judges ought to abide by standards of dignity and discretion in extrajudicial statements. And it would include perhaps greater and broader damage in the case of the Liptak interview, since the original comments about Heller would provide a fair basis for recusal arguments in future gun-control cases. Given that both examples involve changing the story in the Justice's favor t0 make it less rather than more revealing, it is harder to simply assume that the change in both cases had to do with eliminating inaccuracies.  

From my point of view, if it is in fact the case that Justice Ginsburg, or someone in her office or acting on her behalf, or some officer of the Supreme Court, contacted both reporters to get them to try to soften their stories in subsequent editions, that itself is not blameworthy conduct--for the Justice or her proxies, that is. After all, they don't work for the paper. But if the original versions of the stories are accurate, it would be entirely blameworthy for the reporters, or their editors, to change the story because someone associated with the Justice complained about it. It is certainly not a reporter or newspaper's job to save a judge or Justice from indulging, embarrassing, or even hanging him- or herself in print. To the contrary, and I doubt any journalist would disagree with me, if Justice Ginsburg or some other judge or justice wants to say something either slightly or incredibly inappropriate in an interview, the journalist's job is to provide him or her with enough rope to effect the hanging. And there is only one reasonable journalist's response to a request or demand from a source to change a story for any reason other than that it is inaccurate. The answer is a colloquial one, and the colloquialism is "get bent," or "go to hell." Via FB I have asked Adam, a regular and generous reader of the blog, to shed some insight into how or why the change was made in his story. 

There are two words I think highly relevant but too rarely spoken or offered, due to the law's culture of flattery, in thinking about Ginsburg's recent rash of foolish public statements. The first is "senescence." Never having met Justice Ginsburg, I have an insufficient basis to think, or at least to say publicly, that she has become partly or completely senile. I also have no desire at all to speak lightly or casually about such things. But I think foolish interviews of this sort, which she has given increasingly over the last few years, do not just demonstrate a changing cultural standard that is being applied by an increasing number of judges. They also suggest, on an individual level, a possible increasing loss of the kind of judgment and restraint that Justice Ginsburg once would have displayed. I raise this not to suggest that she is not still capable of doing her job as a Justice--although this is not saying much, since I think even a pretty senescent individual can continue to fulfill the function of judge or Justice in a staff-heavy environment. But Justices are effectively managed by their staff in their official work, not their extrajudicial statements. And the increasing lack of prudence she is displaying with regard to the press, in circumstances where her staff does not or cannot run interference for her up-front, does suggest that she is no longer functioning at her best. (This, incidentally, is the kind of point we once would have expected Judge Posner to raise especially keenly, given his interest in aging and old age and his realism about judges as human beings. But I dare say that Posner's own recent extrajudicial statements suggest that he is suffering from the same condition.) 

The second word is "enabling." One wants one's friends, not one's enemies or adversaries, to look out for one and to speak up if one is behaving badly or showing signs of decline. I wonder whether all the Ginsburg fans, friends, and admirers who have enjoyed and passed along these interview remarks, or who have indulged in the fun of meme-sharing and buying trivial T-shirts and coffee-table books, recognize just how much of a disservice they are doing to the person they purport to admire. If they really admired her, they would be better advised to urge her, publicly and privately, to keep quiet off the bench.    

Posted by Paul Horwitz on July 11, 2016 at 02:05 PM in Paul Horwitz | Permalink | Comments (12)

Monday, June 27, 2016

Posner is Much More Right Than Wrong

Three passages from the new Slate Breakfast Table are getting a lot of play today among law professors. I no longer read Slate if I can help it, but this was a fun conversation. The first is from Richard Posner, complaining about a widening gap between the legal academy and the judiciary. This is the subject of his most recent book, which I reviewed here, and one is better off reading the book than the post. 

The second is a reply from Dawn Johnsen. She writes, in part:

I do not perceive law professors as pandering to the justices or as generally reluctant to speak truth to power. It may be that few employ Judge Posner’s sweeping style or reach conclusions as extreme. But the law journals are filled with substantive and harsh critiques. That’s what we do.

A better question is how much of that writing is worth reading. Is Judge Posner right that law professors are, well, too academic? At one level, I would say clearly yes—as have many others, over many years. . . . On the other hand, numerous of my academic colleagues have done serious full-time stints in government and nonprofits, typically by taking leaves. Many more engage deeply with real-world practical experience, even while teaching, be it through litigating and filing amicus briefs; serving on nonprofit boards; working with legislators and other elected and appointed officials; blogging for Slate or SCOTUSblog, Lawfare, Just Security, Volokh, or themselves. The American Constitution Society just announced a new Board of Academic Advisors filled with wonderful law professors who are deeply engaged with the world outside of the academy.

And the third is Posner's response. Again in part:

I don’t doubt that law professors are frequently active outside the classroom and that their academic work sometimes addresses practical issues, but what I’d like to see is evidence of impact. Amicus briefs? Working for nonprofits? Blogging? “Speaking truth to power?” Absurd: speak all you want, professors, power doesn’t listen to the likes of you. 

I think Posner's book is deeply flawed, as I write at length in the review, and that his initial post is overstated. That said, I think his reply is right on the money. Johnsen raises some very peculiar, perhaps tellingly peculiar, arguments in response to him. Whatever the phrase "speaking truth to power" means, it is ill-chosen here. Law professors do indeed sometimes speak truth to power. But most of the time, at best, they speak truth about power, which is not at all the same thing. Speaking truth to power requires one to speak directly to an audience of the powerful and for the powerful to be listening. Burying a criticism of the powerful in the middle of an over-long law review article in a journal likely to be read by few--few law professors, let alone lawyers, law clerks, and judges--does not require much by way of fortitude. It amounts to whispering, with footnotes, into the void.

Whatever the phrase "engage deeply with real-world practical experience" means--how does one engage with experience?--her examples are weaker than she apparently supposes. Without doubt, some law professors--even a large number, although small compared to the total number of law professors and smaller still in the top tiers of the legal academy--have practical experience and continue to make use of it. I applaud them for it. (Provided, of course, that they maintain a distinction between their legal work and their academic intellectual work, which, for better and worse, is supposed to operate by different standards.) And some law professors write amicus briefs--rather than merely signing them, which requires no practical experience and gives one no new practical wisdom. Those are exceptional cases. Some of the other examples are relevant but rare. The activities she cites that are actually most commonly engaged in by law professors have nothing to do with "engaging with practical experience." Writing an op-ed or blog post does not require practical experience and does not conduce to it. The best-placed op-eds I have written drew on my academic expertise and a soupçon of, God willing, wisdom and common sense, but not on any practical experience. I regularly receive emails with recent op-eds by Bruce Ackerman. They're very good and so is he, but they are hardly underwritten by practical experience.

The notion that serving on the ACS "Board of Academic Advisors" has much if anything to do with "engaging with practical experience" is quite absurd. Even as a list of examples of practically engaged lawyers it is questionable, since some of them have little practical experience and, for others, their primary practical experience is in public advocacy and propaganda, not lawyering. As should by now be expected, Johnsen raises as a counter-example to Posner the go-to case of Randy Barnett. He has indeed had a good deal of real-world influence. But I know no law professors who do not believe, openly or quietly (and law professors are even more polite and flattering to each other than they are to judges--far too much so), that Barnett's influence has grown proportionally as he has focused more on public advocacy and meme-propagation and less on genuine academic work. 

You can read my review to see how much I think Posner has strayed recently from his best work, and how overstated I think some of his current claims are. But I think he is generally right in his current complaint, although one can read it descriptively without sharing completely his normative views about what law professors ought to be doing. (That turns out to be, essentially, echoing Posner's own views and serving as adjuncts to the federal judiciary.) And he is right in spades in his response to these rear-guard defenses of the "relevance" and "engagement" of the legal academy. If our defense rests on "speaking truth to power," we are in serious trouble.

Interesting in both cases--with respect to Posner's posts and those of his Breakfast Table critics alike--is the focus on influence at the level of national politics or the federal judiciary. Those law professors most likely to have serious practical experience reside in the "lower" ranks of the legal academy, and they--and all of us--would be better off focusing on gaining experience and seeking for influence at the local and state level. But law professors are status-seekers, and that kind of engagement brings no rise in status. And aside from that, there is a difference, swiftly elided by all the Breakfast Table talkers, between having practical experience and seeking or wielding influence. There are plenty of reasons to favor the former, but also plenty of reasons to question the latter as a goal. I think it is right that more legal academics should have practical experience, and do not except myself from the criticism. But it is hardly clear that they should have or seek influence, especially national legal or political influence. In a moment in which large numbers of people are questioning the arrogance or blindered perspective of elites, and in which academics have lost a good deal of their academic authority by departing from serious academic standards in the interest of political engagement, surely there is room to pause before concluding that it's a good idea to stir hundreds more politically engaged, epistemically-closed elites into the mix. 



Posted by Paul Horwitz on June 27, 2016 at 10:18 AM in Paul Horwitz | Permalink | Comments (8)

Friday, June 24, 2016

Annual Law and Religion Roundtable

With Nelson Tebbe and co-blogger Rick Garnett, I have been an organizer of something called the Annual Law and Religion Roundtable ("ALRR" for short) for the past seven or so years. (Accuracy rather than modesty compels me to say that Nelson and Rick are the real heroes here and do the lion's share of the organizing work.) This kind of informal but organized subject-matter conference has become pretty common in recent years and has a been a wonderful development. I share the view of a number of participants that the ALRR is the conference I most look forward to every year; I even scheduled my annual summer surgery around the conference this year. This year the conference was held in Montreal at McGill University, with the generous support of McGill and various centers there, as well as Notre Dame Law School's Program on Church, State, and Society; the co-hosts at McGill were Jacob Levy of McGill's political science department and Victor Muniz-Fraticelli of McGill's Faculty of Law. (Check out the terrific recent books from Levy and Muniz-Fraticelli.) 

A word or two on these kinds of conferences generally and on this year's roundtable in particular. For obvious reasons, these conferences are much better than general conferences like the AALS. They are generally pay-your-own-way affairs, although McGill and Notre Dame were generous in their support of conference resources and a fabulous dinner. Our approach with the ALRR has been to hold it at a different host school every year, to spread the organizing costs, stay a step ahead of the creditors, and make sure that it's easier for folks in different regions to attend the roundtable. (I am reminded every year of Guys and Dolls and the "oldest established permanent floating crap game in New York.") The guest list is large but not too large and never entirely fixed, and we try to ensure some rotation in and out of the roster. An important aspect of the roundtable is our desire to ensure a mix of senior scholars and junior and/or up-and-coming scholars in the field. Not only do we benefit a good deal from the ideas and energy of the junior scholars, but all three of us have benefited from the kindness of senior scholars in law and religion and would like to keep the virtuous cycle going. Participants are expected to read everything before they show up and presenters (not everyone presents every year) are expected to keep their remarks short so we can focus on questions and discussion. For the past few years, we have included a "hot topics" panel or two, to focus on new developments and give an opportunity to people who want to present but don't have a developed paper in hand. We generally try to make some invites outside the legal academy, to scholars of religion, political theory, history, or what have you, although we've been less successful in that. Dropbox makes it even easier to facilitate the whole thing.  

I used to joke that the one problem with the roundtable was that there was too much damned pleasantness and agreement. Changes in the field and high-profile cases in the last three or four years have changed that to a degree, as has the fact that the composition of the room and of the broader church-state discussion has changed as more scholars who focus primarily on equality have taken up religion-related issues. That has been a valuable development on the whole, albeit one that can raise the temperature of the discussion. Over time, I have come to appreciate that one benefit of the subject-area annual roundtable is that one gets something of a real-time picture of what "problems" are coming to the fore or fading to the background and of changes in the center of gravity or consensus on law-and-religion issues.   

Two notable features of the roundtable this year were the presence, obviously, of a substantial number of Canadians, and a larger number of political theorists and other non-law-school faculty. (A personal note: I graduated, around the dawn of time, from McGill, and it was a real treat to be back on campus and have ready access to the vastly superior Montreal bagel. As a partially Canadian-trained lawyer, it was also an honor to meet Canadian scholars whose work on law and religion whose work I have followed and respected for years.) The cross-border element was incredibly useful in ways both expected and unexpected. American and Canadian scholars learned a great deal from each other on the details of cases and the similarities and differences between the two countries on church-state law. More unexpectedly, the cross-border element of the conference and the presence of more non-law scholars changed the tone and nature of the discussion, altering the map of the room and disrupting the tendency to line up on opposite sides of particular hot-button cases. It was an interesting lesson in the unanticipated benefits of comparative constitutional law.  

Thanks again to McGill, Notre Dame, Rick and Nelson, and the participants for a really fruitful and interesting discussion. If your field does not have an annual roundtable of this sort, I encourage you to start one up, and any of us would be happy to offer advice.  

Posted by Paul Horwitz on June 24, 2016 at 07:48 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, June 15, 2016

Notre Dame Law Review Symposium on Dignitatis Humanae

The symposium issue of the Notre Dame Law Review is out and available online. The symposium is titled "Religious Liberty and the Free Society: Celebrating the 50th Anniversary of Dignitatis Humanae." It includes interesting articles by John Garvey, Anna Su, Chris Lund, Tom Berg, Marc DeGirolami, and others. Enjoy.   

Posted by Paul Horwitz on June 15, 2016 at 12:31 PM in Paul Horwitz | Permalink | Comments (0)

Friday, June 10, 2016

Trump, the Goldwater Rule, and Trading on Authority

It has become a truism that a significant change in the ecology of public intellectuals in the past decades has been that where once many public intellectuals were free-standing writers with no "official" position, a lot of them have since moved into the academy. (To be clear, many public intellectuals are academics, but most academics are not public intellectuals.) It has been a related but separate concern--of mine, at least, and I'm sure I'm not alone in this--that many academics and other professionals are eager to trade on their authority and/or credentials when making public statements about matters of public concern, whether their expertise has anything to do with the particular statement or not. In this they are often abetted by the press, for its own reasons. In the legal academy this comes up in discussion of whether and when law professors should join amicus briefs or sign letters and statements, but it certainly has wider application. The two points are nicely connected in a couple of recent stories.

Section 7.3 of the American Psychiatric Association's Principles of Medical Ethics, the so-called "Goldwater Rule," states:

On occasion psychiatrists are asked for an opinion about an individual who is in the light of public attention or who has disclosed information about himself/herself through public media. In such circumstances, a psychiatrist may share with the public his or her expertise about psychiatric issues in general. However, it is unethical for a psychiatrist to offer a professional opinion unless he or she has conducted an examination and has been granted proper authorization for such a statement.

It's an entirely reasonable professional rule, calling to mind, for instance, Senator Frist's silly long-distance diagnosis of Terri Schiavo. Similar strictures cover dues-paying psychologists. It has always drawn criticism and the Trump candidacy is re-raising the issue, as in this article in FiveThirtyEight. (And here is an earlier, non-Trump-related defense of the rule.) As the article notes, a recent paper in the Journal of the American Academy of Psychiatry and the Law Online criticizes the rule, arguing that it "is not only unnecessary but distracts from the deeper dictates of ethics and professionalism." In part, the authors argue that the rule protects the interests of the profession over the psychiatrist's own moral commitments, and that "psychiatrists have a positive obligation to speak publicly in many circumstances, and the right to speak out in others." The writer of the FiveThirtyEight piece interviewed the author and summarizes it in part like this:

Kroll and his co-author, independent clinical psychiatrist Claire Pouncey, object to the way the rule stifles a psychiatrist’s ability to speak his or her mind. Certainly, Pouncey told me, psychiatrists shouldn’t run around shooting their mouths off about things they haven’t deeply studied. But it’s impossible, she said, to distinguish between the psychiatrist as a professional and the psychiatrist as a person — and that person might feel a very real ethical obligation to talk about their perspective on the mental health of a public figure angling for a position of power over the whole country. “We don’t dispute the spirit of the law,” she said. “But it’s not a real distinction and it shouldn’t be upheld by a professional body.” 

Both articles make some interesting points, especially about the non-enforcement of the rule, which with the rise of Trump's candidacy is going to be violated with increasing alacrity. But--without wanting to exceed my own expertise--it seems like a pretty sound rule to me. I suspect that one should always be suspicious whenever a professional talks about "the deeper dictates of ethics and professionalism." I also think Dr. Richard Friedman, in the Times piece I link to above defending the rule, is right to say that engaging in this kind of long-distance, drive-by diagnosis risks intellectual dishonesty.

The commentaries note that a psychiatrist or psychologist is still free to say certain things publicly, short of offering an individual diagnosis. Perhaps that's a mistake and the rule should be stricter. But at the least it means the rule's bite is not that great. And it does not appear to prevent a mental health professional from "speak[ing] his or her mind." They can do so as citizens; they simply can't do so as professionals, in a way that specifically invokes their supposed expertise to buttress their opinions and phrases it as a genuine diagnosis of an individual. The argument ad Hitlerum, which often is so unhelpful, seems useful here in judging how necessary it is to get rid of the rule. Psychiatrists, psychologists, and everyone else should have spoken out or taken action against Hitler and National Socialism, and taken other actions that have nothing to do with being mental health professionals, such as running for office, protesting, taking up arms, or assassinating him. But a statement like, "If only I had been able to offer a public mental health diagnosis of Hitler, despite never having examined him, all this could have been avoided," is clearly nonsense, and one that betrays a sort of excessive professional amour-propre at that.

It seems to me, then, that what those professionals who have spoken out, either in violation of the rule or arguing for repeal of the rule, want is not to be able to speak their conscience, but to be able to speak their conscience more successfully, by trading on their supposed expertise and authority, even when that expertise is of dubious relevance. They might be able to persuade (or manipulate, or browbeat) people more effectively if they were speaking down to them as "experts," rather than speaking to them on an equal level as fellow citizens. Our society increasingly distrusts professionals, experts, and other authoritative individuals and institutions, but it is still a credentialist society in which expertise and authority carry some additional weight. At the same time, it is one in which many professionals and professional bodies increasingly argue that they should take institutional positions that are essentially political and have little to do with their expertise as such. That's a mistake, in my view, and if professional individuals or bodies are going to make it, they should at least say that they are advocating a specifically political position that has nothing to do with their profession as such or its "deeper dictates."

In any event, the urge to trade improperly and without serious foundation on authority seems endemic, in a way that speaks to the problems with a credentialist society and its abuses. It says a lot about the rather phony use of experts in the news media as a vehicle for reporters to advance some argument rather than making it themselves. It also speaks to the erroneous conviction of many professionals, and many academics, that subject-matter expertise is the same as general intelligence or wisdom, and that because they have a political conviction about some issue that can be phrased conveniently in terms of their expertise, that opinion ought to have some special weight. That is hubris. It also suggests that even professionals themselves think of their professional status as a tool to be used and misused, not as a set of strictures and responsibilities that go along with professionalism and rightly limit the actions of those who take their professional role seriously. This kind of trading on authority is likely to exacerbate rather than reduce the general public distrust of experts, authorities, and institutions, and it should. There are arguments for and against the proposition that Trump's relative success so far indicates a kind of populist or working-class pushback of elites, and I won't weigh them here; but this kind of trading on authority does seem to encapsulate the kind of elite behavior that is likely to produce just such a pushback. 

Problems with trading on authority are in some ways greater, and in some ways lesser or more complex, with lawyers and legal academics. On the one hand, what they have "expertise" in is often closer in substance to politics and civic involvement, and so it's harder to frame a rule of conduct that would limit them too sharply in what they say. On the other hand, and for more or less the same reasons, they engage with great frequency in the public issuance of opinions that are dressed up in authority, yet do not draw in a serious way on any actual expertise. And, again precisely because so many political issues in the United States can be translated into legal terms, and because they are favorite go-tos for the press, they are asked to weigh in as "experts" on various issues far more often than, say, psychiatrists or engineers. Nothing stops them from asking the interviewer to omit their professional status from the description of them in the story, or to insist that the story make clear that they are speaking as citizens and not as experts, and that their opinion is not especially strongly related to their actual expertise. I suppose then they just wouldn't be quoted at all, but that's hardly a bad thing. One might say that readers already understand this and can disregard their opinions, but that just invites the question why the "experts" aren't explicit about it to avoid any misunderstanding--and the answer to that, I think, is that they want to trade on their authority, or perhaps have an overinflated sense of their actual authority and expertise. Legal academics ought to be wary and punctilious about this sort of thing. And the press ought to curb its unhealthy and lazy addiction to quoting law professors, except on questions that genuinely require expert opinion and on which the person interviewed is actually an expert. 

I have in mind as a partial and imperfect example in the legal field the Adam Liptak column last week in the Times on Trump and the rule of law. Mark Tushnet wrote about it last week, twice and in his usual enjoyable way. The story got a lot of Facebook prominence in my feed, unsurprisingly given who my friends are, and more surprisingly (in some ways and not others) got page one play. Headlined "Donald Trump Could Threaten U.S. Rule of Law, Scholars Say," it featured quotes backing up that assertion by what it called "legal experts across the political spectrum." In reality, this meant several politically conservative (by academic standards, anyway) and/or libertarian legal scholars and advocates. With one very important exception, I don't disagree with the general conclusion. And I believe the phrase "rule of law" and "First Amendment" has somewhat more content than Mark thinks it does. He appears to think "rule of law" is an essentially vacuous phrase with "no there there," whereas I think it's a mostly windy phrase with little there there.

Even if there's more there than that there, however, the article didn't really ask difficult questions about the rule of law and, at least on the rule of law questions, didn't actually ask questions that called for any particular expertise about the rule of law beyond that possessed by an average somewhat-informed citizen. There are relevant questions that might call for more careful expert examination and benefit from more expert speculation--specifically, whether and to what extent the larger constitutional, political, and bureaucratic structure will constrain Trump's ability to act effectively in a rule-of-law-threatening manner, in the way summarized by President Truman. A Trump presidency is bound to raise like never before the question whether those who staff the administrative state are creatures of the president or their own institution. I suspect something like uncivil obedience will be a highly relevant concept to executive-branch workers if Trump wins. This question is raised in the column, sort of, but given short shrift and not much expert consideration. Leaving aside the motives and good faith of the people quoted, I think it's hard to read the column in any other way than as one that trades on authority for persuasive purposes in service of the author's goals. That reading is even harder to avoid given the pronouncement that the article is based on discussions with experts from "across the political spectrum," and the contrasting reality that it uses conservative and libertarian law professors and advocates, clearly in order to persuade conservative and libertarian readers of Liptak's column, if any such exist. The piece is essentially a persuasive exercise, and trading on authority is clearly a key part of its persuasive arsenal. 




Posted by Paul Horwitz on June 10, 2016 at 11:35 AM in Paul Horwitz | Permalink | Comments (1)

Saturday, May 14, 2016

Class, Politics, and the Academy

I thought Nicholas Kristof's column about the value of ideological diversity in the academy the other day was not worth mention, because it was so unremarkable in its assertions. I do, however, find the letters in response to it quite interesting. One in particular struck me: a response from a law professor at an Ivy League law school (one of my alma maters, as it turns out) who writes: 

It is not the job of the university to represent all the views held in the surrounding society. The commitment to critical inquiry requires it to disfavor some views based on religious dogma, social convention or superstition. The goal of a community of mutual respect requires it to disfavor others, including those that are explicitly racist, misogynist or homophobic. Such views can be expressed in the university, but it is not a cause for concern that academics do not espouse them in their teaching and research. Much of the disparity between views in the academy and in the Republican Party is attributable to their varying social bases. Academics tend to be educated and middle class. The current Republican Party is constituted disproportionately of the undereducated and the wealthy.

That education leads people to different views is neither surprising nor, on its face, disturbing. And if it is a problem that the views of rich people are underrepresented in the academy, they have had little trouble making up for this disadvantage in the media and the political system.

There are a number of interesting things about this response. Although my main interest is in the last few sentences, the opening raises some questions too. Does the professor, who believes (rightly, in my view) that the university is not obliged to represent all views held in the surrounding society, think the university is obliged to represent all groups or individuals in the surrounding society? Or does he think that the commitment to critical inquiry is the university's primary goal and the only proper basis for hiring (or admissions?) decisions? In what circumstances does the professor think that the university should disfavor views based on religious dogma, social convention, or superstition? Very few, surely; in my experience, dogma and social convention are entirely common bases for views held and statements made by academics, critical inquiry is often championed but less often required or exercised, and in any event these things are rarely directly relevant to an academic's discipline and focus. It is possible to teach economics while believing that God was incarnated as a human being, or to teach contracts while believing that genetically modified foods are unsafe or that there is a link between vaccination and autism. One question about ideological diversity in hiring is whether hiring committees, while asserting an interest in critical inquiry, nevertheless pay attention to and disfavor one set of cues about a candidate's disciplinarily irrelevant obedience to certain dogmas and conventions while ignoring or welcoming others--whether, for instance, they are likely to look askance on an English literature candidate who notes in passing her membership in a charismatic church, while ignoring a passing reference by another candidate to Reiki or therapeutic touch. And if or when conservative candidates are disfavored, how often is it because of explicitly racist, misogynist, or homophobic statements, and how often is it because of other cues or views that are not explicitly any of those things, or because of what ought to be irrelevant factors (getting one's litigation experience at a conservative public-interest firm, rather than a liberal public-interest firm or large corporate law firm, for instance)?

I am, however, more interested in the closing arguments in the letter. It is interesting the way the letter pivots sharply and silently from the original column's concern, with liberal versus conservative ideology, to a focus on rich vs. poor. It is equally striking that the writer then describes academics as composed of the "educated and middle class," and Republicans as constituting the "undereducated and the wealthy," and pivots again to the largely irrelevant peroration about "the views of rich people [being] underrepresented in the academy." It's not clear to me whether the writer has a problem with the certainty that the poor, as opposed to the rich, are underrepresented in the academy--a point that takes on added resonance given the many barriers to successful entry into the credentials arms race posed for the poor, and perhaps takes on added weight if, as the writer would have it, giving more entree to the poor and currently undereducated might also give more entree to those holding conservative views. In any event, it should be clear to any academic that the views of, if not the rich, then certainly the more-than-"middle class," are the predominant views of the academy. The average salary for full professors in the United States was around $100,000 in 2007. I cannot begin to estimate the average salary of an Ivy League law professor, although I would take one if offered. At a minimum, I'm guessing that they are in the top ten percent, if this chart is any indication.

Although I'm sure it is unintentional, I think the letter trades heavily on an elision of the difference between being rich and being conservative, and of the difference between views held about the poor in the academy (no shortage, albeit largely of a de-haut-en-bas nature) and views, of whatever political stripe, held by the poor in the academy (heavily under-represented). Of greatest concern to me, however, is that his focus on the "rich" being under-represented in the academy elides the plain fact that the affluent are extraordinarily well-represented in the academy. If having more poor, working-class, and conservative views in the academy meant I would have to put up with more rich people in the academy as a side-effect, or if it meant thinning the faculty ranks of the wildly over-represented affluent members and products of the professional-managerial class, I would consider that a fair trade. And those people will, in any event, have little trouble making up for this disadvantage in the media and the political system, in which their views are also heavily over-represented.       


Posted by Paul Horwitz on May 14, 2016 at 08:29 PM in Paul Horwitz | Permalink | Comments (4)

Monday, May 09, 2016

Aristotle on Trolling

Lovers of virtue ethics, Internet norms, smart-assery, or all three will very much enjoy this piece in the Journal of the American Philosophical Association: Aristotle, On Trolling. Here is the opening: 


That trolling is a shameful thing, and that no one of sense would accept to be

called ‘troll’, all are agreed; but what trolling is, and how many its species are,

and whether there is an excellence of the troll, is unclear. And indeed trolling is

said in many ways; for some call ‘troll’ anyone who is abusive on the internet,

but this is only the disagreeable person, or in newspaper comments the angry old

man. And the one who disagrees loudly on the blog on each occasion is a lover of

controversy, or an attention-seeker. And none of these is the troll, or perhaps some

are of a mixed type; for there is no art in what they do. (Whether it is possible to

troll one’s own blog is unclear; for the one who poses divisive questions seems only

to seek controversy, and to do so openly; and this is not trolling but rather a kind

of clickbait.)


Well then, the troll in the proper sense is one who speaks to a community

and as being part of the community; only he is not part of it, but opposed. And

the community has some good in common, and this the troll must know, and

what things promote and destroy it: for he seeks to destroy. Hence no one would

troll the remotest Mysian, or even know how, but rather a Republican trolls a

Democratic blog and a Democrat Republicans. And he destroys the thread by

disputing what is known to be true, or abusing what is recognised as admirable;

or he creates fear about a small problem, as if it were large, or treats a necessary

matter as small; or he speaks abuse while claiming to be a friend. And in general

the troll says what is false but sounds like the truth—or rather he does not quite

say it, but rather something very close to it which is true, or partly true, or best

of all merely asks a simple question about the evidence for climate change. Hence

the modes of trolling are many: the concern-troll, the one who ‘sees the other

side’, the polite inquirer into the obvious. For the perfected troll has no need of

rudeness or abuse, or even of fallacy (this belongs rather to sophistic or eristic,

and requires making an argument): he only makes a suggestion or indication


Posted by Paul Horwitz on May 9, 2016 at 02:53 PM in Paul Horwitz | Permalink | Comments (0)

Saturday, May 07, 2016

Two Cheers for Candor

Although I found it horrifying, I also immensely enjoyed Mark Tushnet's post yesterday recommending that "liberals" abandon "defensive crouch liberal constitutionalism." It begins:

Several generations of law students and their teachers grew up with federal courts dominated by conservatives. Not surprisingly, they found themselves wandering in the wilderness, looking for any sign of hope. The result: Defensive-crouch constitutionalism, with every liberal position asserted nervously, its proponents looking over their shoulders for retaliation by conservatives (in its elevated forms, fear of a backlash against aggressively liberal positions).

It’s time to stop. Right now more than half of the judges sitting on the courts of appeals were appointed by Democratic presidents, and – though I wasn’t able to locate up-to-date numbers – the same appears to be true of the district courts. And, those judges no longer have to be worried about reversal by the Supreme Court if they take aggressively liberal positions. 

My sense as a fond and frequent reader of Mark's work, in both its earlier and later periods, is that, rather than having to choose between reading his work as being in earnest and reading it as puckish, one should read it simultaneously as both. Like all of his work, including his more puckish posts and articles, his post should be applauded for its candor. Unlike some, Mark is willing to put his cards on the table, knowing that openness about these matters from legal academics won't do much to derail such a program and not caring much, I think, even if it does. All legal academics should be so candid and careless about consequences, but, alas, they often aren't.  

I do have some critical comments about the post. The first is to urge readers to pay attention to the implicit assumption, or perhaps Freudian slip, in that first paragraph, which effectively treats all those "generations of law students and their teachers" as if they were and are all liberals. Of course they weren't and aren't. I don't worry much about such an apparent assumption appearing in Mark's work, because he is much smarter than the average bear and knows better. If I were a conservative student, I wouldn't hesitate to take one of Mark's classes. I do worry about such an assumption in the hands of a dimmer, less self-aware, or more unconsciously programmatic law professor, however. Mark's post is, among other things, an advertisement for the continuing importance of ideological diversity in the hiring of law professors and the admission of law students.    

Second, I question Mark's labeling of the post as addressing the past and future behavior of "liberals." For one thing, some liberal legalists place more emphasis on the "liberal" part of the formula, and others on the "legalist" element. For another, "liberal" obscures too many intramural differences. Although it's a close call and I don't mean to white-wash anything, I think his post is more profitably read as referring to what legal progressives or leftists ought to do than it is as giving marching orders to liberals. Making assumptions about motives is generally a fruitless enterprise. Still, there is a case to be made that the best way to understand this post is as one issued specifically from the (less powerful) left, with the hope that enough impressionable (and more powerful) liberals will be cozened into taking it seriously and doing the left's work for it. Given that the left lost the Democratic primaries, I'm not sure why the liberals should do anything of the sort, and they might consider the possibility that some of Mark's cynicism is aimed at them as well as at the right. But some of them are impressionable, after all. 

Third, I think Mark's candor obscures, or even blinds him to, the complex dynamics involved in forming legal-political views. In the area of religious fraud and the law, I have written that it is a mistake to treat the shepherd and the flock as holding identical views. A minister may mouth doctrinal views insincerely and cynically, while her flock holds those views sincerely and tries to apply them in a principled fashion. The same is true in law--for which, on the whole, thank God. Ideas, once loosed on the world, have a life of their own and cannot be controlled by those who offer them up. Someone who offers a view of judicial restraint because it will advance her current political program will generally try to offer up seemingly politically neutral and compelling justifications for those views. And whatever her own motives in advancing that argument and her insincerity in offering the justifications for her position, some people will find the justifications compelling in their own right and hold fast to them. Some will even maintain those views after circumstances have changed and the center of gravity has shifted, although certainly many will eventually come around to the new center of gravity. Even if, say, liberal originalists or believers in judicial minimalism offered their views for purely political and instrumental reasons, employing their brilliance in justifying those views only as political tools, many liberals will believe those brilliant arguments even if their progenitors do not. Indeed, some of the progenitors will end up buying their own arguments; the most powerful form of deception is self-deception. Maybe the people who end up sincerely believing in those arguments are naive; if so, two cheers for naiveté. The best safeguard against sudden volte-faces of the kind Mark argues for here is the work that is put into justifying those instrumentalist arguments in the first place, including framing them as sincere and politically neutral, and the inevitability of many people taking them seriously in their own terms. Conservatives eager to take Mark's post as evidence that liberal legalism is a sham and that every liberal legalist is in on the sham should take these dynamics into account, and vice versa. 

As for Mark's recommendations themselves, they are fairly unremarkable. The only thing interesting about them to me is, again, the interesting dynamic of sincerity and cynicism they suggest. Surely many liberals will eventually take some of these recommendations on board. But not all of them will understand themselves to be following Mark's orders, and some would no doubt angrily and sincerely deny it if it were suggested that they were doing just that. A few out there may applaud his suggestions. But if he were, a few years from now, to give a keynote address at the American Constitution Society convention that said the same thing, I'm sure many would regard it as being in terribly bad taste and even insulting. This is, of course, one reason why I like Mark's work so much. A legal academic with political inclinations should always treat upsetting her allies as one of her primary goals, and one way to distinguish interesting legal academics from hack writers of shadow-amicus briefs is to identify those who never do so.

I am also not quite on board with Mark's paragraph about the culture wars. I agree with its "they lost" point in general terms, but not with its specifics; and I think he gives too little awareness to the financial and other motives for the combatants in these wars to continue believing that they are losing or under threat, whatever the truth may be. No one gets donations or galvanizes their base by talking about how well they are doing. Nor is it quite accurate to say, anent the recommendation that liberals take a hard line on culture war issues (aside from any actual substantive and/or normative objections one might have to this recommendation; after all, we continue to have a First Amendment), that doing so "seemed to work reasonably well in Germany and Japan after 1945." Analogies are dangerous in any case, but the premise here seems almost entirely faulty. For one thing, Mark omits to mention that taking a hard line after 1918 did not go so well. For another, the Allies did not take a particularly hard line after 1945--sometimes problematically so, but often for good reason and to good effect. Depending on what Mark thinks constitutes a "hard line," he might remember that the Allies quite rightly concluded that the Morgenthau Plan was punitive and stupid, and that even mention of the idea helped galvanize German resistance to surrender. If one is going to make such an analogy, one should keep in mind the entrenchment risks of a hard line strategy. American soldiers complained that the Morgenthau Plan was worth thirty divisions to the Germans.      

Of course, I agree with Mark's last point, and think his advice about Justice Kennedy should apply to everyone, not just the left. Another good way to distinguish the academic brief-writers from the actual scholars is the amount of attention they pay to patching or redoing Justice Kennedy's writing and massaging his ego.    

Posted by Paul Horwitz on May 7, 2016 at 11:30 AM in Paul Horwitz | Permalink | Comments (8)

Wednesday, May 04, 2016

Trump and Constitutional Law

Like most members of my class, I abhor the possibility, now much stronger, that Donald Trump will become president of the United States. I tend to be an ambivalent technocrat, and so the notion of a blundering, populist, somewhat authoritarian president strikes me as frightening, if also as somewhat in the nature of just desserts for the mandarin class and its frequent distance from, if not borderline contempt for, substantial segments of the American population. I tend to think that he will be somewhat less frightening in reality than in prospect. Campaigning and governing are two separate activities, and even cult-of-personality campaigners must eventually leave many duties to an administration, some of whose senior officers will be more technocratic than Trump himself and much of which will be overseen by an entrenched civil service. Nevertheless, I do not relish the prospect of his presidency. A name like "New Haven" will take on a more literal and ironic meaning, I should think, if Trump is elected.

I am generally uninterested in law professors' politics, and quite uninterested in discussing my own, and so making such a forthright political statement is not my primary goal here. I declare my opposition to his candidacy simply as background for a more academic point, which is that a Trump presidency would be a goldmine for interest in and study of constitutional law. If he should win the presidency, I venture the following predictions:

1) There will be an immense rebirth of interest in the salutary aspects of federalism and separation of powers--on the ground, in popular conversation, and certainly in legal academic work. "Rights" talk, although never non-existent, will take a backseat to "powers" and "structure" talk. Those liberal federalists, like Heather Gerken, whose work has been admired but perhaps seen as somewhat eccentric from the main direction of constitutional study, will be joined by many new adherents, and there will be considerable conservative-liberal crossover in those fields. 

2) Sentiment about congressional gridlock, and especially about congressional gridlock as a justification for creative and unilateral executive action, will shift overnight. Mann and Ornstein will receive many new fans, albeit those new readers will, in effect, mentally convert all the negative adjectives in that book to positive ones. Lawyers and legal scholars who minimized or celebrated President Obama's fairly aggressive use of presidential power will similarly reverse polarity almost immediately.

3) All this is fairly predictable. More interesting to me will be how self-conscious or un-self-conscious the reversal will be. Many legal scholars are both doctrinally grounded--not in the sense that they write a lot about doctrine, but in the sense that their work is grounded on law as a doctrinal tool for action, not on a deeper sense of or attachment to theory--and politically oriented in their work. For such scholars--and perhaps for most of us--things like federalism and separation of powers are purely instrumental tools, to be used as the occasion demands. Given that, I expect that a good deal of this new interest in the value of federalism, separation of powers, and gridlock will be un-self-conscious at first: it will neither acknowledge nor discuss the polarity shift involved. Since some of these scholars will not have written much about structural constitutional law before, they will not have a body of their own written work to fight against, so their shift will be less dramatic, although no less real. Others will barely cite what they have written on past occasions, or distinguish it on questionable grounds.

4) But this will change over time. Constitutional and legal theory change by a process of crude reflective equilibrium. Those of us working in law and religion have had a ringside seat to that phenomenon over the past few years: a slow shift away from an earlier equilibrium happens first more or less silently; then cases with a different set of facts or plaintiffs bring strong disagreement at the level of outcome, and inspire doctrinal criticism; and eventually those criticisms beget new theoretical structures of justification and a shift in the overall center of both theoretical and doctrinal thought. Just so, the newfound interest in federalism and separation of powers as positive qualities will eventually beget new theories to justify and consolidate the shift away from the current center of gravity. How much this happens, and how long it lasts, will depend in large measure on whether Trump (if he wins) secures a second term, and on how much Trump-as-president resembles Trump-as-candidate, and whether both his own inclinations and permanent institutional structures make him less of a populist or authoritarian than people currently fear.

5) As a partial aside, some polling evidence suggests that things like campus activism have contributed somewhat to success of Trump's candidacy. So one possible conclusion will be that the current round of campus and off-campus activism will, unlike most activist movements, have a significant and immediate effect on social change--albeit the effect, with delicious irony, will be the opposite of what most of the activists want. One imagines that the result, over time, will be varied: some activists will question or moderate their attachment to such movements, others will double down on their activism, some college presidents and other establishment figures will lose patience with those movements while others will give them freer rein, and there will be an overall upsurge in polarization around these movements. Students of social movements and social change will have plenty of new data to work with.   

Posted by Paul Horwitz on May 4, 2016 at 10:27 AM in Paul Horwitz | Permalink | Comments (2)

Friday, April 15, 2016

At Least Two More Cheers for Counter-Clerks

The up-side of Facebook is that it allows me to quick-post links and ideas I don't have the time or energy to work up for public discussion. The down-side is that lots of fun potential blog posts go missing, or that, while I'm having that conversation in the limited forum of FB, which I did in this case, someone beats me to the punch in the blogosphere. Eric Segall's post on Monday, talking about Justice Scalia, raised the interesting subject of "counter-clerks": those clerks that Justice Scalia hired to provide an in-chambers "liberal" view as a lens for examination and criticism of his views or opinion drafts. Counter-clerks weren't a huge part of his post, which was mostly about Scalia's position on affirmative action and his originalism. But it did evoke interesting questions about counter-clerks. Now his co-blogger, Mike Dorf, has this post talking directly about counter-clerks and raising "two cheers" for them, concluding this way: "The bottom line is that a willingness to hire counterclerks is a modest indication that a judge takes his professional responsibilities seriously and enjoys the company of people who disagree with him, which indicate positive character traits. But that's about all."

There are a couple of things I would say about counter-clerks, but the most important is simply that the idea of having counter-clerks, especially but probably not exclusively at the Supreme Court, is worthy of much more study than it has received. Although I disagree with various aspects of it, I think Richard Posner's book Divergent Paths is right to argue that we need more study of structural, managerial, and other aspects of the (federal) judiciary. It is a valuable subject in itself, the more so as the judiciary has long since become a large, complex institution rather than a disparate collection of, to use Philip Hamburger's term, individual judicial "offices." If one also believes, pejoratively or otherwise, that the Supreme Court is a "political court," it's also useful to think about potential structural responses to this.

None of this requires one to conclude that counter-clerks are a good idea, or an effective one. But it deserves study and attention. As with thinking about judicial term limits, how to sequence discussions or votes in conference, or other such questions, it's useful in asking about the Court as an institution and what institutional features might benefit from tinkering or change. Maybe more so: lifetime tenure is a formal structural rule and thus highly visible, but in most areas legal scholars would observe that all kinds of sub-constitutional rules and practices (like the use of clerks) are at least as important as the formal ones in reflecting and channeling the work of an institution, and need to be studied.

A look for discussions of counter-clerks doesn't turn up very much. There should be more. Maybe every justice should hire a counter-clerk. Maybe it is a failing of the current Court, and the current justices, or revealing of their understanding of their job or of the current moment on the Court, that they do not all have such a practice more or less formalized. Maybe the counter-clerk idea is a good one but there are better ways to do it. It doesn't have to be organized around political ideology, for instance, although the current justices are political and perhaps it's important to have that internal check; but it could be organized around methodology, or as a matter of having a formal "Devil's advocate" clerk, period. And although I think there are fairly good reasons to hire at least one clerk who definitely does not share the justice's politics or methods, it may be that the formal role of "counter-clerk" should rotate among the clerks. In other areas, legal scholars and social scientists (beginning with Irving Janis) have argued that decision-making groups, or advisors to a decision-maker, need a formal Devil's advocate, to guard against groupthink, polarization, epistemic closure, cascades, and so on, and that the role should be rotated to make sure the advocate is not powerless or routinely dismissed. We may want to think more about whether the Court and its use of clerks needs to take the same approach. 

After the jump, some additional points informed by excellent comments about this from my FB discussion. As usual, it's tl;dr, so feel free to skip it, although the last paragraph is somewhat interesting. 

 The responses received to my post were interesting and certainly made me think of this question differently, although it doesn't alter my view that the practice of having counter-clerks deserves more attention. Let me list them here. Although I draw on that conversation, no doubt I'm not doing full justice to the nameless commenters:

1) Ineffective. Specifically, the suggestion was made that the imbalance of power between justice and clerk is too great for the counter-clerk position to function well enough. I take no position on this, other to note that it's not unique to this court or to the job of law clerk, and may be even stronger in the case of political appointees in the executive branch who are asked to provide unvarnished advice. I'll also note that it's not specific to acting as a counter-clerk: "normal" clerks may also feel pressure to tailor their work to their sense of the justice's priors or preferences, not in the sense of being a faithful amanuensis, but in the sense of failing to raise (or to spot) questions and criticisms.

2) Justice-dependent. Whether a counter-clerk is effective, or (more on this below) whether such a position is necessary as such, may depend on the justice's receptivity to criticism. A justice might have a counter-clerk but be inflexible in his or her position, or have no counter-clerks but be open to argument from his or her clerks. That seems reasonable enough, but not reason enough not to study the idea of the counter-clerk structure. Also, and this is the point of writers who have talked about Devil's advocate structures in other group deliberation situations, the view that if a bunch of agreeable people work with, and argue with, their their receptive boss/justice in an open-ended non-specific way, they will end up airing all that needs to be aired is susceptible to doubt. Whatever their good intentions, they may still collectively fall prey to groupthink or epistemic closure--indeed, egg each other on into a resultantly polarized opinion.

3) Not necessary on ideological grounds. On this view, justice X is not an ideologue, the chambers never discusses ideology, and so this whole framework is not necessary. I pretty strongly doubt the first two parts of this view. In particular, the fact that chambers discussions are about "the law" and not ideology doesn't say much about how affected they are by ideological priors and other factual and value assumptions. (That's even more true if such a chambers ever discusses "policy" as well as "law," if it's not absurd to distinguish between the two.) And I doubt that Scalia's counter-clerks were asked to talk like liberals at a political convention, so much as they were hired with the knowledge that they thought differently from Scalia on some set of political and/or jurisprudential issues and were then asked to push back as lawyers. But I agree that we shouldn't treat ideology too narrowly here, and we're certainly welcome to think about other bases for Devil's advocacy. Indeed, I think it's the idea of a structural Devil's advocate, rather than a house liberal (or conservative), that is central to thinking about why we might want to have more use of counter-clerks. But given the political nature of the Court and its members on some central set of issues, and the political elements of clerk hiring and the use of feeder judges, it's understandable that ideology is a relevant factor to think about and will often be relevant in the context of the Court. Perhaps our discussion should be about whether justices should, as a norm, hire for political diversity. But I think the counter-clerk question can be separate from that; and many people who think justices have no obligation to hire for political diversity might still think that a counter-clerk is a good idea.

4) What this says about the justices. I got a sense that there was some pushback on the counter-clerk question specifically because commenters thought Justice Scalia's hiring of counter-clerks was taken as a sign of his special or superior virtue, and as suggesting that his colleagues were in some way less virtuous for not doing so. That reaction is heightened if the view is that, despite the presence of a counter-clerk, Scalia voted politically and was jurisprudentially inconsistent. I don't care about the justices as such, for what it's worth, and it is clear to me that the legal profession, academy included and not just former Supreme Court clerks, buys way too much into a "great man/woman" vision of law and history. To an extent, I don't take Scalia's counter-clerk hiring as indicating that he was a terribly virtuous judge or as reflecting poorly on the other justices. To me, that's not the point, any more than one decides the virtues of term limits for justices by pointing to individual stories. I think the counter-clerk idea or something like it is structurally interesting and might be structurally beneficial, and I don't care what it says about the justices as such.

But it's not clear to me that Scalia's practice wasn't a good and praiseworthy practice, or that there is no basis to think the other justices are subject to reasonable criticism for not following it. It does seem to me that many former clerks, and others, are likely to take the practices at the Court when they were working there as reasonable if not normative. I would think the Court's practices are at least as subject to study and criticism as congressional or executive branch practices--probably more. And many if not most former clerks, and others, are resistant to structural criticisms that reflect badly on some or all justices, a tendency about which I've made my views clear on other occasions.

Let me make a last point. The sense in what discussions I have seen is that having a counter-clerk is rendered necessary or useful because the justices hire politically and jurisprudentially congenial people and so need to ensure a certain kind of feedback. A contrary view is that the justices (or whichever justice one clerked for) are open-minded and reasonable and engage in a productive back-and-forth with their clerks. And separately from the counter-clerk question, most people conclude that the justices are heavily influenced by their political priors. So perhaps another structural feature to think about is to get rid of the "elbow clerk" model altogether, or to junk a good deal of it. We could instead have an annual hire (perhaps by someone other than any of the justices) of 36 staff law clerks who can rotate through the justices' offices. It raises administrative questions, of course, but its benefits might still outweigh its costs. Or, for the sake of consistency and ease, one could give each justice one or two elbow clerks and require them to work with the staff law clerks for everything else. 



Posted by Paul Horwitz on April 15, 2016 at 03:33 PM in Paul Horwitz | Permalink | Comments (1)

Monday, April 11, 2016

A Jot on Gedicks, Helfand, and the Value and Limits of "Free Exercise" Doctrinalism

Howard is much better about putting up links to "jots" from his corner of Jotwell. Here's a jot from the constitutional law section, by me. In keeping with my urge to mess with the basic format, it's on two articles: Frederick Mark Gedicks's forthcoming article 'Substantial' Burdens: How Courts May (and Why They Must) Judge Burdens on Religion Under RFRA, and Michael Helfand's Identifying Substantial Burdens. Both are excellent pieces and both contain what may, depending on your definition of the word, be substantial discussions of what was thought likely, before oral argument, to be (and may still turn out to be) the principal issue in Zubik v. Burwell. The jot treats both articles as evidence, and exemplars, of a recent and valuable increase in doctrinal scholarship around the Free Exercise Clause and RFRA interpretation, as opposed to Free Exercise theory. I argue that the articles also demonstrate the limits of doctrinalism in this area (and perhaps more broadly). Here's a snippet:

Inevitably, however, both articles also show the limits of doctrinalism—perhaps in general, and certainly in this field. Not all doctrinal scholarship, to be sure, will be subject to the same severe limitations. In particular, one can imagine, and there has been a recent increase in, scholarship about doctrinalism. Scholarship recommending reforms in current doctrine, though, inevitably requires some sense of the metric against which those reforms will be measured and the values they are meant to serve. In a stable field or one with a highly specific statute, there may be substantial consensus about the relevant norms and values. But law and religion is not a stable field. The constitutional text is old and general; RFRA itself contains broad terms like “substantial burden,” and incorporates the highly contested caselaw of the Free Exercise Clause. And disputes in the field today suggest division over basic values and over the allocation of power between church and state, questions that may have been answered by prior cases but cannot settle them. Doctrinalism can channel such questions but it can hardly escape them. Questions of theory, and of policy, which also involves theory, are unavoidable here. . . .

None of this, of course, is meant as a fatal criticism. Law must be implemented as well as theorized. Too abstract a focus on theory will not provide us with adequate tools to implement that theory; and too frequent a recourse to first principles will deprive the law of stability and predictability, and steer judges’ and scholars’ time and talents away from the kinds of technical questions at which they have a comparative advantage. It makes sense that law—scholars’ law and judges’ law—will sometimes engage with higher-order questions, but that its primary development will often be smaller and more doctrinal. Questions of implementation are important, and a body of good legal scholarship can add considerably to the improvement of doctrine. Both Gedicks and Helfand contribute mightily to this task in the area of substantial burden doctrine. Their articles are both models of good work in this field. In deciding Zubik, I would not be surprised if different factions on the Court appealed to one or both articles. In the end, though, you cannot build a better mousetrap unless you have a sense of what the goal of trapping mice is, and what balances must be struck in doing so. Zubik itself, and both articles, turn on larger questions of theory, policy, and power that are unanswerable by appeals to doctrine itself. Both articles are well worth reading, and neither can tell us how to choose between them.

As I say in the jot, both articles are well worth reading. (So is another article written on essentially the same topic and at about the same time, Chad Flanders's Insubstantial Burdens. As they say in Shakespeare in Love, good title!)    

Posted by Paul Horwitz on April 11, 2016 at 11:12 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, April 06, 2016

Yes (With Caveats), Publishing a Book Review is Still a Worthwhile Endeavor for Untenured Law Professors

Following up on Chris's follow-up post, and with due appreciation for some of the points made in the comments there, my answer is yes, it is still worthwhile for untenured tenure-track law professors (an unwieldy phrase, but I don't like the increasingly common "pretenured": it may be accurate, given tenure rates, but there's a whiff behind it of unnecessary language massage and an unwillingness to hurt anybody's feelings by suggesting that anyone might not deserve and get tenure) to publish book reviews. Sure, there are cautions to be registered and prudential concerns to consider. But, as a general matter, it is still worthwhile.

The primary reason I think it's worthwhile for untenured law professors to publish book reviews--and, given time limits, the only one I want to focus on--is that I think it's worthwhile for tenured law professors to publish book reviews. Good books in one's field are, well, good, and in my view better and more rewarding than good but long articles. Engaging seriously with a good book can be an intellectually rewarding experience, and part of the way we engage is to write. It is also rewarding, especially in a field in which the currently dominant conventional law review article form is so imperfect, to experiment with different genres and forms of writing. All of these things are as true for untenured law profs as they are for law profs. It makes sense, up to a point, for untenured professors to be given sound professional advice that includes practical and pragmatic advice. But it also makes sense not to put the cart before the horse, and to be wary of the prospect that prudential advice of this sort, offered initially in a regretful, don't-like-it-but-that's-how-it-is way, will become reified and perpetuated, and that people will slowly build normative justifications around it. There ought to be room for serious book reviews in any genre of scholarship in which books are relevant. That should be true for tenured professors. And, in principle, just about any scholarly activity that might be valuable or rewarding for tenured professors, and certainly this one, should be valuable or rewarding for untenured professors.

I agree that given limited time and attention, there are reasons for untenured professors--or some of them; others write and publish a ton--to focus on what needs to get done, not just what they want to do. I don't find that terribly compelling as a general piece of advice, and it's becoming ever less compelling. The tenure clock is relatively long and has, I think, gotten longer rather than shorter. More people are coming out of doctoral studies or fellowships and, depending on what they've negotiated, already have at least one piece towards tenure. Even those whose prior publications don't count toward tenure at least have gotten some practice writing in their field and won't have the same start-up needs that someone coming in cold would. And, frankly, the number of significant pieces demanded for tenure is not huge, and doing a book review shouldn't be a make-or-break factor.

I also agree that untenured professors might want to build up some experience, skill, wisdom, and so on before writing a book review. But here too I think the conditions of the industry have changed. Whatever sense this makes in general, we can at least say that many entry-level law professors have put in some time on their subject, and published in the area, even before entering the tenure track. There's thus less reason to think it's presumptuous of them to assay a book review. Of course they should write the review as modestly as is appropriate given their relevant skills and limits. But that's true of articles as well, despite the not-infrequent immodesty of articles by entry-level profs (immodesty that is indeed noted, if forgiven, by more elderly readers in the field). Finally, one can understand that an untenured professor might want to select projects for impact and to build a voice and reputation. I think good book reviews can do that too, but I agree that articles (and, um, books) are the best way to achieve that goal. On the other hand, building a reputation should be secondary to the scholar's primary interest, which is to do scholarship. An untenured writer who thinks a book review is the right project to pursue, that it is the lesson he or she must learn or the contribution he or she must make, should worry about that first, and let reputational concerns take care of themselves. I think it is at least possible that there are people who internalize lessons about how to build a famous reputation very well, and do everything right, but little that's truly worthwhile. Better, I think, professionally speaking, to ask what your scholarly mission demands of you; if the muse tells you that the answer is "write a book review," write it. 

Perhaps all this is obvious and just goes without saying. I think it is and does. I also think the prudential advice on which people usually focus when asking these questions is mostly pretty obvious too, for that matter. I wouldn't have bothered writing about this. But, whatever the intention of the post or individual comments, I worry about the framing being such that untenured professors convince themselves that "scholar" is not a category with its own imperatives, but rather that there are two distinct categories of scholar: "untenured scholar" and "tenured scholar." I think it's important to reject that view, and that conditions are easy enough for most untenured law professors (if they get the job, which is really the hard part) that there's room enough to focus on the normative "oughts" of scholarship and not just the practical "ises." Indeed, I worry that in the legal academy many entering (and senior) academics hear, know, talk, and think more about the "ises" of scholarship than they do the "oughts."       


Posted by Paul Horwitz on April 6, 2016 at 02:23 PM in Paul Horwitz | Permalink | Comments (5)

Friday, April 01, 2016

New SSRN Paper: Five-Second Rules vs. Five-Second Standards

New today on SSRN is my draft article, Five-Second Rules vs. Five-Second Standards. It follows indirectly on my work on biases and heuristics in and epistemological questions concerning the First Amendment, as well as my interest in non-legal authority, although the proximate inspiration for the paper was more personal. Of special note is that it is the first paper to address this question in the legal literature. Here's the abstract:

The study of non-legal social norms has opened up new vistas for legal academic engagement with a variety of phenomena that, although not expressed through positive law, nevertheless have powerful implications for the facilitation and regulation of social conduct. Many of the epistemological, behavioral, and normative questions raised by positive law are placed in close relief when examined in the context of other forms of “law.” An enduring question in law is the “rules vs. standards” debate, and an enduring element of the “rules vs. standards” debate is the question whether the two stand in stark opposition to one another or exist on a continuum of ruleness and standardness. I examine this question, and raise others, through an interrogation of a classic, well-accepted, rule-like social norm: the “five-second rule,” which posits that it is acceptable to eat food that has dropped on the ground, provided that it has not remained there longer than five seconds. This is the first examination of the five-second rule in the legal academic literature, although it has been discussed in other fields.

The heart of the Article is an empirical study—the first such study in the legal literature. At a law school faculty lunch, a close count was kept of subjects’ responses upon dropping food on the ground. A variety of scenarios were involved, including inadvertent food-dropping by the experimental subjects themselves and a series of planned incidents in which the tester arranged for a sub-optimal number of cookies to be offered for dessert, and then conspicuously dropped a particularly attractive chocolate chip cookie on the ground and signaled that anyone wishing to pick it up was welcome to it. Preliminary results revealed three things: 1) most subjects observed the five-second rule, but not closely, with subjects indicating a willingness to pick up and eat food as long as seven or eight seconds after it had dropped on the ground; 2) despite prevailing norms of cooperation and civility, subjects were willing to fight, to the point of wanton brutality, over the last cookie; and 3) the primary variable affecting willingness to pick up food past the five-second point was the subject’s number of years in teaching post-tenure. Indeed, in situations where food remained on the ground past five seconds, a statistically significant cohort of senior professors waited until the room had cleared following the event, and then returned when they thought no one was looking to pick up the food and take it back to their offices. This experiment, relying as it does on a limited and non-representative sample of experimental subjects, in a situation far removed from standard real-world environments, and despite multiple failures to replicate the result, offers highly significant results that are easily generalized to suggest—for the first time in the legal literature—dramatic descriptive and normative implications.

Following a lengthy recitation of the experiment and its results, this Article spins out a number of novel conclusions appearing in this Article for the first time in the legal literature. First, and somewhat counter-intuitively, it turns out that even the five-second “rule” is, in fact, a standard. This suggests that even carefully reticulated rule specifications do not and cannot eliminate room for careful situational judgment and discretion. That conclusion has important implications for a variety of laws and social norms, including speed limits, Chevron deference, and the categoricalism vs. balancing debate in constitutional law. Second, interrogating the five-second rule has important implications for the question whether compliance with legal rules and social norms rests on an adequate epistemological or policy basis. The five-second rule remains a powerful constraint on conduct despite the fact that the rule has little basis in scientific fact and relies heavily on behavioral heuristics untethered from sound policy. Moreover, and despite its disconnection from sound or rational behavior, the rule itself reifies wider disparities and inequalities in access to relevant information. Studies in other disciplines show that while only 56 percent of men surveyed were even aware of the five-second rule, fully 70 percent of women knew of it. These gendered disparities demand additional study. Finally, and in keeping with important recent work on “sticky norms,” “sticky slopes,” “sticky defaults,” “sticky knowledge,” “sticky expectations,” “sticky metaphors,” and “sticky compliance,” the Article is the first in the legal literature to argue that the five-second rule is itself an example of a “sticky rule.” Literally.


Posted by Paul Horwitz on April 1, 2016 at 08:13 AM in Paul Horwitz | Permalink | Comments (0)

Friday, March 04, 2016

Kende on Berger on The Rhetoric of Constitutional Absolutism

At Jotwell, Mark Kende has a "jot" about Eric Berger's recent article, The Rhetoric of Constitutional Absolutism. I very much enjoyed Berger's comprehensive article, which describes a tendency toward rhetorical confidence and certainty in Supreme Court opinions, even (or especially) in divided opinions, in which the opinion "conten[ds] that a particular constitutional statement is either absolutely true or false" and confidently "insist[s] that a case has only one possible correct constitutional answer" and "often depict[s] a case as easier than it is." Berger offers several pretty convincing accounts--"strategic, institutional, and psychological"--of why this rhetoric happens, although he might have said more about the role of law clerks and the "chambers style" of an institution that relies heavily on them for opinion-writing. It is not surprising that he concludes that it is a problematic style, but he commendably totes up the benefits as well as the costs of this rhetoric. Kende offers a clear, quick, and sensitive description of Berger's article and concludes by saying that "Berger has given us a superb article that suggests that there would be much value in the Supreme Court writing less absolutist and more nuanced candid opinions." 

As Kende notes, there is an interesting existing literature relevant to Berger's article (which Berger certainly cites). I recommend especially Emily Calhoun's book Losing Twice: Harms of Indifference on the Supreme Court, and, before that, Robert Burt's The Constitution in Conflict. Calhoun's book also has a wonderful set of bibliographic essays on the topic.  


Posted by Paul Horwitz on March 4, 2016 at 08:15 AM in Paul Horwitz | Permalink | Comments (1)

Wednesday, February 17, 2016

Do Law Clerks Need Empathy?

Here is a very well-done remembrance of Antonin Scalia by Joan Larsen, one of his former clerks and now a Michigan Supreme Court justice. I've written frequently, and most recently here, that "[t]oo many former law clerks in the academy retain an adolescent love of their judges," that the kind of filial piety the clerkship relationship often induces becomes a lifelong and unhealthy habit in them. I still think that's true, but I'm not a total monster, and this is a lovely account. It raises a specific question for me I thought I'd air. Larsen writes:

Justice Scalia believed in one simple principle: That law came to the court as an is not an ought. Statutes, cases and the Constitution were to be read for what they said, not for what the judges wished they would say. Each of his opinions needed to conform to that principle and to be written clearly, forcefully and accurately. If you could help him with that, you were useful to him. If not, then not . . . . As impatient as he may have been with our missteps, he truly valued our input. He had no use for sycophants. He wanted to get things right; and, therefore, he valued clerks who would argue with him about why his initial thinking might be wrong. If you could prove your case, you could win him over. But it could not be done with appeals to emotion, or outcome, or legacy, or anything else. The only way to convince him was to show him that the law was on the other side (usually by peeking nervously over his shoulder as he read, and questioned, and then reread the cases). My proudest moment as his clerk was convincing him, with two sleepless nights of research into dusty old precedents, that a criminal defendant should win a case that none of the justices originally thought he should win. I’m pretty sure that was the moment he was most proud of me, too.

Conspicuously absent here as a desideratum for law clerks is empathy. There's plenty of talk and debate, and no doubt there will be more soon enough, about the value of empathy in judges. The law review database in Westlaw shows over 750 uses of "empathy" within the same sentence as "judge" or "judicial" since the turn of the century. But there is virtually no discussion of whether law clerks ought to have the quality of empathy. A search in the same period for the word "clerk" in the same sentence as "empathy" yields only 16 hits, most of which are irrelevant and the rest of which involve clerks remarking on their judge's empathy. There are, this crude search suggests, no discussions in this literature, at least not in those terms, about the relationship between empathy and law clerks

That's pretty striking and suggests a nice, unanswered question for someone to follow up on. For one thing, the literature on judges and empathy is already at the saturation point. For another, most people write on the assumption that clerks are something more than mere amanuenses, if something much less than full partners in the enterprise, and that they at least sometimes bring something to the job other than mere mimicry of their judges' own views; and there's probably plenty of overlap between people holding those views and people who believe that empathy is an important quality in judging. Without overstating it, I think the question whether law clerks also need empathy is an interesting and overlooked one. 

That doesn't mean the answer to the question is of an intricacy proportioned to its interest, but the answer might have interesting implications. As a first cut, there are two obvious answers here, with two different sets of implications. The first, obviously, is "no." Judges decide cases. Empathy may help them decide them better. But law clerks are not the decision-makers. Their job starts after the vote and consists of something between being an advanced amanuensis, writing as the judge would write, and being a cite-checking machine. If that's right, then the implication is that we should avoid the temptation to (over-) glorify the importance of law clerks, and also perhaps that we should take a more circumscribed view of what law clerks' duties are or should be. It also suggests something about judges' uses of law clerks. And perhaps it says something about their tenure too: If empathy is an important quality for judges, then when a judge has reached the point at which he or she leans heavily on clerks even at the voting stage and gives over the writing of opinions substantially to the clerks, then that judge is no longer capable of providing the added value that his or her empathy and experience brings to the process, and should leave the bench. 

One problem with this answer is that it is hardly fully consistent with what many law clerks actually do. They do a lot of the reasoning that publicly explains a judge's vote. Especially in some cases, like "screeners," they may do practically all of it. And Supreme Court clerks also have a substantial pre-vote role through their participation in the cert pool, as well as in briefing cases before oral argument. Empathy is important, on some views, not only in deciding how to vote, but in explaining the outcome to the winners and losers--especially the losers--and to the public. In some cases, perhaps a law clerk's empathetic understanding of a case can even influence or change the judge's vote.

If that's the reality, and/or if that's your normative position, then perhaps the answer should be "yes." Empathy is an important quality in law clerks, and should be one of the selection criteria for judges in selecting them. Perhaps it should be especially important in an era in which federal appellate judges and Justices are cast from a narrow mold--elite school-to-elite practice-to-elite lower federal court judging--and thus may need law clerks to provide some of the empathy that might not flourish in such a circumscribed existence. The implications of this position are arguably problematic too, however, quite apart from the question whether it delegates too much of the judicial task (if empathy is a key part of the judicial task) to law clerks. Law clerks are generally chosen from within an even narrower and more elite-favoring pool than judges. Just as important, empathy is not a question of background alone: it's a quality that develops with exercise and experience, something that law clerks necessarily lack. Maybe those who believe empathy is an important quality for judges ought to advocate for hiring law clerks who are not only diverse in background but older and more varied in their lifetime experience. Or maybe, interestingly, those who believe empathy is important for judging should be arguing that law clerks ought to be much more limited in their duties--that they really should be glorified secretaries and cite-checkers, and that their role in both pre-vote work, like the cert pool, and post-vote opinion writing, must be more limited than it often is today.


Posted by Paul Horwitz on February 17, 2016 at 09:23 AM in Paul Horwitz | Permalink | Comments (1)

Saturday, February 13, 2016

Good News for Long-Winded, Caveat-Spewing Canadian Legal Bloggers

A fun and interesting article about how to change people's minds, based on a study by Cornell researchers titled "Winning Arguments: Interaction Dynamics and Persuasion Strategies in Good-faith Online Discussions." A couple of findings: The researchers "find that longer replies tend to be more convincing, as do arguments that use calmer language," and "they find that hedging – using language like 'it could be the case' – is actually associated with more persuasive arguments. While hedging can signal a weaker point of view, the researchers say that it can also make an argument easier to accept by softening its tone."

Posted by Paul Horwitz on February 13, 2016 at 08:43 AM in Paul Horwitz | Permalink | Comments (0)

Friday, February 12, 2016

A Comparative Critique of "The Ultimate Unifying Approach to Complying With All Laws and Regulations"

In the new Green Bag, Daniel Solove and Woodrow Hartzog have an article titled "The Ultimate Unifying Approach to Complying With All Laws and Regulations." It's described here. This is the SSRN abstract: "There are countless laws and regulations that must be complied with, and the task of figuring out what to do to satisfy all of them seems nearly impossible. In this article, Professors Daniel Solove and Woodrow Hartzog develop a unified approach to doing so. This approach (patent pending) was developed over the course of several decades of extensive analysis of every relevant law and regulation."

As with Orin Kerr's A Theory of Law, the fun lies largely in its brevity and in the slight surprise involved in clicking through to the article. (This also means that people who want to get the joke have to download it from SSRN, at least for now and until now. It already has over 1,500 downloads.) I honor that here by offering the standard "SPOILER" alert here and continuing after the jump, where I reveal the approach, take it seriously, and critique it at slightly greater length than the article itself.

Not including the abstract, the article reads, in full:

Be reasonable.

So, how well does this approach work? Of course, like most people, I like it and try to live it, albeit more for moral and ethical reasons than out of a desire to avoid legal consequences. I find it intuitively attractive as a general Golden Rule for living under the law. Insofar as it cuts through the fog, and through reams of paper, to find a common-sense conclusion, I like it for that reason as well. Still, I'm pretty dubious.

One reason is empirical. As Solove's colleague Cynthia Lee notes in her book Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom, different individuals and communities may have different views about what constitutes reasonableness, and/or about what the reasonable member of a community would consider reasonableness. There is a large literature out there calling for more empirical study of the application of the reasonable person standard, although my quick tour through it suggests that there have been more calls than responses.

Another is, roughly speaking, political and sociological, although it's related to the empirical point. The United States is a highly pluralistic society across any number of dimensions, including political views relevant to questions about how a reasonable person should comply with the law--reasonably; with an eye toward a default assumption of minimal state power and individual liberty; with avoidance or avoision in mind; loyally; purposively; and so on. There are also varied views, exacerbated by the increasingly polarized and heated division over politics and culture, about the substance of individual laws, and that's likely to create inconsistency in and between individuals over whether a particular law or legal rule should "reasonably" be interpreted broadly and purposively or narrowly and literally. 

One might have less reason to worry about all this if the official interpretive community were sufficiently homogeneous in its views of the "reasonable person" to allow such a standard to be interpreted consistently. Decisions by judges and other legally trained officials would then be consistent, and decision by juries would likely be subject to some judge-imposed constraints. Individual actors would "be reasonable" according to their predictions about what judges, lawyers, and government officials, or maybe the professional/managerial class more generally, consider reasonable. There are obvious problems with this, however. One is the simple question whether the class of people subject to the laws is able to make these sorts of predictions. Another, lying somewhere between descriptive and normative concerns, is whether such predictions will be more difficult if there is a widening gulf between the professional/managerial class and others. On the normative side of the line, asking such a question raises obvious concerns about political legitimacy.

All that aside, is it accurate to describe the relevant interpretive community in the United States as sufficiently homogeneous?  Views differ, but I don't think so. Notwithstanding complaints that the legal profession is not sufficiently diverse, it is already (or also) the case that there is a great deal of variation and conflict in the political, social, and cultural views of lawyers, a conflict that plays itself out, among other things, in debates, divisions, and polarization within the legal community that parallel the debate and polarization within the broader political and civic community. Because law in the United States is so often political, and so many lawyers and legal thinkers are content or eager to treat it as such, or believe that they must do so rather than "unilaterally disarm," that condition is not going away any time soon. Any society, or legal interpretive community within that society, in which there is strong disagreement over something as fundamental, simple, and vital as how to interpret a statute is not well-suited to live by the injunction to "be reasonable."   

This brings me to an interesting (to me, admittedly) comparative point. Other legal interpretive communities do operate by various "be reasonable" rules. In Canada, for instance, courts often quote Elmer Driedger's book (now carried on by Ruth Sullivan) on the Construction of Statutes and its description of the "Golden Rule" of statutory interpretation: "Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament." This is essentially an injunction to "be reasonable" in the interpretation of a statute, and Canadian courts have regularly said as much. Similarly, Canadian constitutional analysis, like judicial constitutional review in many countries, relies heavily on a proportionality test, and there too reasonableness is a linchpin of the analysis.  It is sometimes lamented that American constitutional doctrine is not conducted more explicitly in terms of reasonableness, balancing, and proportionality, and Justice Breyer, among others, has argued that it should be.

My sense as a former member of the Canadian legal interpretive community, however, is that however well reasonableness functions as a guide, much of that success has to do not with the test, but with the homogeneity of the interpretive community. It's a big country, of course; moreover, one often associates it with the split between Quebec and the rest of Canada, or between English-speaking and French-speaking Canadians. My take, however, is that Canadian law, government, and administration have generally been overseen by a smaller mandarin class within which there is a fair amount of cultural similarity and political consensus. There are about 23 law schools in Canada, of which say 17 are of reasonable long standing and establishment and among which the "tiering" is nowhere near as strong as among American law schools. A larger number of faculty within those schools come from outside the country than was the case when I was a student in the early 90s; still, there is a substantial amount of cultural and especially political consensus, and unity and similarity of training, among them. And the same kind of relative educational, cultural, and political homogeneity also characterizes the political/administrative managerial class more broadly. It is still largely captured by people with similar educations and views, coming from or having lived in a relatively small number of major Canadian cities: Toronto, Vancouver, Montreal, Ottawa/Hull, maybe a couple of others. If you think "Washington" is an epithet for people captured by the Beltway culture, and are struck by the tiny number of law schools responsible for producing our Supreme Court justices, you're right. But even so, the legal and political culture here is relatively diverse and divided, even within DC, compared to the Canadian mandarinate, and notwithstanding other ways in which that group has become diverse along other dimensions such as race, ethnicity, and religion. And the American professional/managerial class lives, works, and disagrees in many other places than Washington.

Indeed, from my distant perspective, one of the most interesting and salutary things about the rise of the Conservative Party in Canada was that it revealed a gulf between the mandarin culture and at least some of the regular citizens in at least some of the regions of Canada--especially the West, which, Vancouver and Victoria aside, has different views and much less Ottawa-based political representation in the political class than the Toronto-Ottawa-Montreal nexus. That's not to say I shared that party's views. As a Torontonian and a member of the professional/managerial class, I lamented the death of the much more "reasonable" Progressive Conservative Party; and, if I didn't much care for the Liberal Party given its ideological vagueness and the inevitable corruption that afflicts a party long used to power, I was generally comfortable being governed by it, for similar reasons. But it was interesting and, I think, valuable to see the West take a greater share of the political power from which it had generally been frozen out, and to see the ways in which the views of the country were different from those of the average entrenched deputy minister. That idea ought to resonate some. We are, after all, seeing a political season in which revolt against the United States's own professional/managerial establishment and its shared values and assumptions is a major element in the successes of challengers in both parties.   

In short (hah!), if a "be reasonable" rule works in Canada, and perhaps in other countries that also rely on things like proportionality, it may be not because there's much content to or value in the rule itself, but because the class interpreting it already shared a substantial consensus and worldview. I suspect that such an interpretive community would have reached similar results and consensus if it had instead adopted a fairly strict rule of textualism as the approach to interpreting statutes, and a more originalist and/or categorical approach to constitutional interpretation--that, indeed, textualism, originalism, and categoricalism in legal interpretation could all be undertaken more successfully in that legal culture than they could be or are in the United States. It may also have something to do with the degree to which law is or isn't consistently made a vehicle of "politics" there, compared to the United States.   

I will make explicit what I've already implied: in such a country, if the professional/managerial class shares a strong political and cultural consensus but the consensus is not shared across the country and some regions, classes, and views are absent or shut out from that class, then there are good reasons to think that even a 'successful' "be reasonable" legal interpretive regime there has serious political legitimacy problems. But neither those problems nor the day-to-day stability and consistency of the interpretive regime have much to do with the approach to legal interpretation that this class adopts. And American champions of things like proportionality, balancing, and "reasonableness" as interpretive tools--for rules, statutes, constitutional questions, and other issues--who point abroad for examples of the value and workability of such a system should dig deeper into the homogeneity of the legal classes charged with administering those systems, and into how representative and politically legitimate they are. In any event, and despite the many ways in which we already live under something of the rule of a professional/managerial class here, as people often complain, the United States is too culturally and politically diverse for "be reasonable" to be a sufficient guide in general, however well it functions for individuals. However much people like me are attracted to "be reasonable" as a guide, and however much it looks like plain common sense, we should also recognize the degree to which the proposed rule is heavily freighted with politics--and the politics of a particular class, at that. 

I grant that this is a slightly lengthier critique than the article itself. If I were doing it Green Bag-style, I suppose my response to the Solove/Hartzog article would be, "It's complicated--and political."

Posted by Paul Horwitz on February 12, 2016 at 01:35 PM in Paul Horwitz | Permalink | Comments (4)

Wednesday, January 20, 2016

Divergent Paths, the "Posnerian Clone Wars," and Two Takes on Legal Education

In the New Rambler Review, which incidentally is a great resource, today's example notwithstanding, I have a review of Richard Posner's new book, Divergent Paths: The Academy and the Judiciary. Here's my summary of the book's thesis:

The federal judiciary suffers from many flaws, not least “a certain staleness in the current judicial culture.” Some flaws are structural; others involve poor management of the judiciary as a whole and of individual courts and judges; a third set concerns “deficiencies in how federal judges decide cases and justify their decisions in judicial opinions,” including a mechanical formalism and an unwillingness to confront openly the task of solving complex problems. Some of those flaws are fixable. The legal academy could do a lot to help. But it hasn’t, and won’t, unless it fixes some flaws of its own. Its central shortcomings are its increasingly academic nature and its lack of interest in understanding or communicating with judges. “There really is a gulf between these two branches of the legal profession, and the gulf has been growing.” A “focus on practical instruction” in legal education would “create a greater faculty interest in judges,” especially those beyond the Supreme Court, and narrow the gap.

And here is my basic assessment:

In Divergent Paths, [readers] will find much that repays their time, but I’m not sure they will find a rewarding book as such. They will find “too much”—a “gallimaufry,” as he says (wonderfully) of a quote by Laurence Tribe—and also not enough: several books not one, sometimes conflicting in diagnosis and prescription, and too often wandering into fun but unfocused irrelevancies. . . .

Duncan Kennedy famously wrote that legal education is a machine for the reproduction of hierarchy. Divergent Paths wants to turn law schools into a device for the large-scale industrial cloning of Richard Posner himself. . . . I agree with most of Posner’s diagnoses and many of his prescriptions; I admire his work as a judge and a scholar; I wish more judges, lawyers, and law professors were like Posner. But all of them? By the end of the book, one can’t help recall a scene in the movie Being John Malkovich, depicting a world with nothing but Malkoviches. Even a world filled with first-rate Posners would be an unsteady place; one filled with inevitably less capable people, taught nothing but how to emulate him, would be calamitous. Whatever legal academics’ job is, it can’t be that.

 After the jump, I offer more substantial excerpts. One suggestion I make toward the end of the review is that instead of making recommendations for the future of law schools based, by his own admission, only on his knowledge of the elite law schools, Posner should have considered the possibility of "more tiering of law schools, not just as a matter of rankings but in terms of the role and strengths of different kinds of law schools. It’s also surprising that the book doesn’t consider the possibility of separating legal academic study from legal professional training, with fewer, less highly compensated, and more academic legal scholars teaching in departments of law, and more practical, doctrine- and instruction-oriented academic lawyers working in law schools." [For what it's worth, I have taught at five law schools, and in a week will begin a visit at a sixth, representing all "tiers."] I also write:

In focusing on the shortcomings of individual elite law professors while insisting that the whole legal academy serve as glorified valets to the federal courts, [Posner] ignores another possibility. Two features, above all else, distinguish elite law schools from lower-ranked schools: money and resources. What separates Harvard, Yale, or Stanford from most law schools is not the presence of airy theorizing or Supreme Court clerks, both of which can be found elsewhere. It’s that these schools have accreted a large number of generously funded centers and institutions, staffed with affiliates, fellows, and administrators, a number of whom have significant expertise in useful disciplines. Individual tenure-track faculty members at the elite law school faculties are now just the visible tip of a much larger corporate enterprise.

These varied centers now mostly serve as a research and advocacy arm of legal liberalism. They do some impressive work, no doubt. But it’s not unique work; and, varied and piecemeal as they are in their activities, they don’t achieve half as much as they might if they were properly coordinated. With their resources and ability to hire dedicated and qualified staff, and with more forethought and direction, the elite law schools could do a lot to study the kinds of questions Posner thinks are central to the improvement of the federal judiciary (or other branches of the profession). They would certainly be better qualified at this job than the general run of current law faculty. They would also be more qualified than the practically oriented faculty that he champions in his conclusion. Rather than retrofit the law schools into a rag-tag version of the Federal Judicial Center, why not build from existing and potential resources to fit the right tool to the job? In his compulsion to remake the judiciary and law schools in his own image, Posner’s usual Weberian instincts abandon him.

I thought, in light of my recommendations, that it would be nice to close this post with a "But see": Rebecca Roiphe's new article, Tilting at Stratification: Against a Divide in Legal Education. The abstract states, in part: "Critics suggest we divide law schools into an elite tier whose graduates serve global business clients and a lower tier, which would prepare lawyers for simple disputes. . . . The article draws on [ ] history to argue that there are no easy solutions. In order to fix the problems of legal education, we need to address the question of professionalism in general and distill what it is that is valuable about a separate legal profession. The profession should train all our lawyers in those skills. The intellectual and theoretical approach to the law is necessary to both rich and poor clients, therefore, all lawyers--not just those who graduate from elite schools--ought to be trained in the complex nature of the law and its relation to society, culture, and politics."   


More excerpts:

As with most of Posner’s books, reducing Divergent Paths to a dry précis gives no sense of the genuine intellectual treasures to be found in it. Its pleasures lie in its detours and divagations as much as in the main trail. “Having flailed at the American Law Institute for a few pages,” he writes at one point, “let me get back on track.” Throughout the book he flails away: at individual judges, articles, and ideas, at judicial piety and academic abstruseness, and at many of his other usual foils. He usually hits his target.

Sometimes—more often than usual for Posner—this becomes repetitive; for example, a 75-word passage appears, word for word, at pages 225-26 and 271. Frequently, he descends from acidity to crankiness. . . . [T]he book needed more ruthless editing and greater self-restraint. That extends to his epilogue, added at the last minute to throw in some harsh criticisms of recent Supreme Court opinions. Posner says he “thought it likely that some of those late-decided cases would cast light on issues discussed in this book.” The discussion is more distracting than enlightening—one more punch to throw before last call. It should have been cut.

Many other passages, however, retain the trademark Posnerian capacity to cut to the quick and separate sense from nonsense. . . . 

The heart of the book is its pairing of flaws in the federal judiciary and ways the legal academy could address them. Plenty of law professors today are eager for reform recommendations. They should be. Even if the legal economy recovers fully, many reasons for reform will persist. Among other things, law schools make questionable choices in faculty hiring and curriculum, and there is a disjunction between what schools teach and how they teach it, and the practical needs of students, the legal profession, and others.

But even those eager to praise any suggested reform of legal education should take a careful look at Posner’s recommendations. The problem is not their cost. Requiring law professors (like me) to retool or move on is hardly a good reason to resist reform recommendations—if they’re good ones. But the consistency, coherence, and effectiveness of Posner’s proposals are questionable.

There is a strong tension between Posner’s complaints about law schools and his prescriptions for reform. . . . One might think, [given his diagnoses], that Posner’s prescription would be: “Fewer doctorates, more doctrine.” Hire talented young lawyers to teach, and encourage them to do the doctrinal work at which they excel and which judges can understand and use. They won’t need much encouragement, given their particular (and limited) skills and their identification with the profession.

But it isn’t, or not quite. Posner urges that “the judiciary as an institution (as distinguished from its legal-doctrinal output) should be receiving a good deal more attention from the academy than it is.” Judges themselves—their psychology, their priors and incentives, their management techniques—are the rats that must be made to run the legal academic maze. The tools for that sort of study are organizational and psychological: statistics, management, organizational and institutional scholarship, behavioral economics and psychology, and so on. . . . Thus the first item on Posner’s list of recommendations: “Redirect focus of academic scholarship from legal doctrines and particular decisions to systemic and institutional issues.” So the prescription is actually “More doctorates (but aiming their studies at the judiciary), and (even) less doctrine.”

What good will this do? Empirical study of the judicial process and the management of the federal courts would surely yield some benefits. But Posner argues throughout the book that judges can’t understand or won’t listen to this sort of thing. . . . They wouldn’t necessarily do anything about it even if they did listen. The usual problem of horses and water would apply.

The references to rats and horses are apt here. I will add a third animal metaphor. In his book How Judges Think, Posner urged legal and other scholars not to accept judges’ descriptions of how they decide cases uncritically, but to bring an external and interdisciplinary perspective to bear. He wrote pithily, “Biographies are more reliable than autobiographies, and cats are not consulted on the principles of feline psychology.” Going an absurd step further, Divergent Paths aims to turn the entire legal academy into a center for the study of feline psychology. Since he wants law professors not only to study their subjects but to help them, by such tasks as “guid[ing] judges to reliable websites and away from unreliable ones,” he would also turn us into feline therapists and feline concierges. While he’s at it, since he wants judges, unlike cats, to listen to the people studying them, he wants us all to talk to the animals as well, like Dr. Doolittle. There is no reason to think judges would take any more kindly to our observations than cats would, or that the skills necessary for external study of the judiciary would make us better judicial therapists and servants, and vice versa. . . . 

There are two more important flaws with the book, both tied together by a certain self-centeredness and the usual human tendency, widely shared by legal academics, to look for one’s keys under the nearest lamppost. The book’s plea for future study of the judiciary is undercut by the certitude, specificity, and oddness of his prescriptions. Posner already seems certain not only of the flaws in the judiciary and legal academy but of their remedies, and this affects his recommendations in bizarre ways. Duncan Kennedy famously wrote that legal education is a machine for the reproduction of hierarchy. Divergent Paths wants to turn law schools into a device for the large-scale industrial cloning of Richard Posner himself. . . . 

I agree with most of Posner’s diagnoses and many of his prescriptions; I admire his work as a judge and a scholar; I wish more judges, lawyers, and law professors were like Posner. But all of them? By the end of the book, one can’t help recall a scene in the movie Being John Malkovich, depicting a world with nothing but Malkoviches. Even a world filled with first-rate Posners would be an unsteady place; one filled with inevitably less capable people, taught nothing but how to emulate him, would be calamitous. Whatever legal academics’ job is, it can’t be that.

Finally, Posner’s exclusive focus on the federal appellate courts and the elite law schools is odd. It makes sense to write what you know, but this is a sweeping set of prescriptions for so narrow a scope of study. It leaves out other branches of the legal profession and of government, most of the law schools in the country, and all of the state courts. Narrowing in at the outset leaves him, and us, unable to evaluate whether other legal institutions are in more urgent need of help.

It also affects and distorts his prescriptions. Despite the perverse tendency of the competitive job market in law teaching to create a whole nation of law faculty who mimic their mentors at the elite schools, there has also been a recent increase in differentiation and specialization among law schools, as they are forced to pay more attention to local employment markets. There could, and probably should, be even more of this. Posner notes that faculty at non-elite schools are still likelier to produce doctrinal work, although the snobbery of federal judges (or their clerks) may lead them to neglect it.

Why not build on this? Instead of a prescription that all law schools become judicial study centers, based only on his knowledge of a few elite schools, why not allocate the work more efficiently? Perhaps he should encourage more tiering of law schools, not just as a matter of rankings but in terms of the role and strengths of different kinds of law schools. It’s also surprising that the book doesn’t consider the possibility of separating legal academic study from legal professional training, with fewer, less highly compensated, and more academic legal scholars teaching in departments of law, and more practical, doctrine- and instruction-oriented academic lawyers working in law schools.

In focusing on the shortcomings of individual elite law professors while insisting that the whole legal academy serve as glorified valets to the federal courts, he ignores another possibility. Two features, above all else, distinguish elite law schools from lower-ranked schools: money and resources. What separates Harvard, Yale, or Stanford from most law schools is not the presence of airy theorizing or Supreme Court clerks, both of which can be found elsewhere. It’s that these schools have accreted a large number of generously funded centers and institutions, staffed with affiliates, fellows, and administrators, a number of whom have significant expertise in useful disciplines. Individual tenure-track faculty members at the elite law school faculties are now just the visible tip of a much larger corporate enterprise.

These varied centers now mostly serve as a research and advocacy arm of legal liberalism. They do some impressive work, no doubt. But it’s not unique work; and, varied and piecemeal as they are in their activities, they don’t achieve half as much as they might if they were properly coordinated. With their resources and ability to hire dedicated and qualified staff, and with more forethought and direction, the elite law schools could do a lot to study the kinds of questions Posner thinks are central to the improvement of the federal judiciary (or other branches of the profession). They would certainly be better qualified at this job than the general run of current law faculty. They would also be more qualified than the practically oriented faculty that he champions in his conclusion. Rather than retrofit the law schools into a rag-tag version of the Federal Judicial Center, why not build from existing and potential resources to fit the right tool to the job? In his compulsion to remake the judiciary and law schools in his own image, Posner’s usual Weberian instincts abandon him.


Posted by Paul Horwitz on January 20, 2016 at 07:43 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, December 23, 2015

"Religious Institutionalism--Why Now?"

Nelson Tebbe and I have a chapter with this title in a forthcoming (and terrific) book, The Rise of Corporate Religious Liberty, edited by Micah Schwartzman, Chad Flanders, and Zoë Robinson. Here's the abstract:

The recent rise of religious institutionalism in Supreme Court doctrine presents a puzzle. After all, the Court has been emphasizing groups at exactly the same moment when social scientists have been showing that Americans are disaffiliating from religious organizations at a rapid rate. What explains this apparent tension? We argue that multiple factors contribute in complex ways to the rise of group rights of religious freedom. But we also tentatively suggest an overarching theme. Once it is appreciated that religious disaffiliation is happening chiefly among those on the left of the political spectrum, it becomes possible to hypothesize that lawyers’ focus on groups and institutions reflects a countervailing impulse among religious traditionalists. If that is correct, then the rise of group rights of religion is happening alongside, not despite, religious disaffiliation. The two developments are aspects of a general phenomenon of polarization on questions of religious freedom.

I should say in the interests of fairness that Nelson was more than generous in keeping me on as co-author. We started the paper together but I was substantially sidelined by illness last year and my contribution to it dropped precipitously. I hope there's a little bit of me left in there, but I would feel bad about not acknowledging publicly that Nelson did the lion's share of the work, with his usual excellence. I was nevertheless pleased and grateful  to come along for the ride with him.

Let me offer some thoughts about the paper beyond the abstract, although I think most of them are explicit and/or implicit in the chapter. First, I think the general approach is useful and perhaps too often absent from legal scholarship of this kind. Doctrines emerge, develop, find a receptive audience or wither, and evolve in various ways and for various reasons, some internal and some external: path-dependence within doctrine, changes in the cultural surround or in the legal culture, strategic first moves and reactions to other moves, interest-group politics and funding, and so on. In thinking about these questions, and about where and how doctrine might move, it is valuable, in my view, to think at least somewhat from an internal perspective, but not only from that perspective. That's especially true if one is going to make pronouncements about what doctrinal developments say about our legal or political culture. All of this is more or less obvious, although I think people rarely tease out all the nuances of these relationships, and are especially likely to label strategic moves by those they disagree with as strategic while describing similar moves by their friends as sincere and inevitable. A fuller picture doesn't always emerge in the scholarship, however, both because of reasonable concerns about parsimony--it's difficult to make a single "point" given all these cross-currents--and because, general complaints about this notwithstanding, many legal scholars are still doctrinalists at heart, and/or hold a largely "internal" view of the law. In any event, it's worth noting that such moves can be both strategic and sincere. Arguments in favor of affirmative action in higher education on the grounds of diversity rather than remediation, for instance, increased significantly after the Supreme Court in Bakke channeled legal claims in that direction. But diversity was in the air before that, and even if there was an initial strategic motivation for focusing more on this, individuals and groups in time came to internalize it as a treasured value. Religious groups may have been driven by various developments, such as the Court's decision in Employment Division v. Smith, to push institutionalist arguments, but the idea was hardly foreign to them and, once such claims are made, others will end up internalizing their importance.    

Second, I think a key point in the paper is worth underscoring. Religious institutionalism can rise in importance at the same time as, and in part because of, a trend toward religious "disaffiliation and individuation" described in recent Pew polls about religious belief in the United States. One sometimes sees hints or suggestions in public and scholarly literature that the rise of the "nones" in American religious demography undercuts religious institutional claims. That's not quite right, although such a view may find a warm welcome in a legal and political culture that tends to "Protestantize" American religion and the structures that surround it. Reporting to her feckless colleagues on the latest purges in the Soviet Union, Greta Garbo in the movie Ninotchka says, "There are going to be fewer but better Russians." As, and in part because, many religious individuals become less strongly tied to particular church bodies or disciplinary orders, other individuals and groups will become more strongly tied to religious institutions and more convinced of their importance and the value of their maintaining some autonomy, particularly in the face of a legal and political culture that in their view disparages or denies the importance of such associations or sees them as wholly subordinate to the enacted will of the majority. Indeed, one view is that under such circumstances, it may be both more important and less dangerous (because those groups are smaller, and because the idea of exit will be highly visible in the surrounding culture and, as Charles Taylor suggests, more "available" to religious individuals) to allow those groups a space of their own, from which they can generate or preserve norms and ideas that critique the prevailing culture. 

At the same time, it is possible that the smaller and stronger ties of these groups, and their reaction to the surrounding culture, may make their beliefs or norms stricter, and their legal claims stronger and likelier to interfere with the general legal regime, including its beneficial aspects. The creation of "fewer but better," or smaller but stricter, religious groups may also, both by making it easier to monitor members and by creating stronger and more isolated enclaves, make exit more difficult for individuals, including vulnerable ones. How to balance these conflicting points is the stuff of the law and its response to pluralism. I would like to suggest, however--and this is not in the paper--that it points to a potential, oft-neglected, benefit of accommodationism: a willingness to accommodate such groups may reduce these groups' polarization and alienation from the general culture and desire to build a strong enclave around itself, and make it less likely that the end point will be one of strong illiberalism and/or insistent isolation from the culture.

Third, it's worth noting that however much particular ideas or strategies may be associated with one side of the debate at particular times, they often have a more complicated genealogy than that, and may well cross political lines at different points. Advocacy on behalf of society's "little platoons" is right now associated strongly with religious conservatives, for example, but in the 1970s, a concern with the importance of these groups could be found across both the left and right. (See chapter 6 of Daniel Rodgers's terrific book Age of Fracture.)

Finally, a couple of reading recommendations, both of them published after the initial drafts of this chapter. For a critical take on religious polling, see Robert Wuthnow's Inventing American Religion: Polls, Surveys, and the Tenuous Quest for a Nation's Faith. And for a wonderful argument that, "both normatively and historically, liberal political thought rests on a deep tension between a rationalist suspicion of intermediate and local group power, and a pluralism favorable toward intermediate group life, and preserving the bulk of its suspicion for the centralizing state," see Jacob T. Levy's Rationalism, Pluralism, and Freedom

Again, thanks to Nelson for letting me hang out with him on the page, and I hope y'all enjoy the chapter. I highly recommend the book as a whole; it has many great contributors who have turned out some very interesting chapters. 


Posted by Paul Horwitz on December 23, 2015 at 09:33 AM in Paul Horwitz | Permalink | Comments (1)

Monday, December 21, 2015

A Review of Andrew Hartman's A War for the Soul of America: A History of the Culture Wars

Andrew Hartman, a historian at Illinois State University, had both fantastic and poor timing in publishing this year his book A War for the Soul of America: A History of the Culture Wars. Fantastic in that the book turned out to be incredibly timely, due to the recrudescence of the culture wars on and off campus; poor in that the book is labeled as history and he doubles down on that label, writing, "This book gives the culture wars a history—because they are history. The logic of the culture wars has been exhausted. The metaphor has run its course." However much they enjoyed the book, reviewers looked around them and disagreed; indeed, they had enjoyed the book because it was so timely. 

Here is my review of the book for Commonweal. Given my field and its close relationship to the subject of the book, I was pleased to read it, although I ended up underwhelmed--by the effect his sympathies have on the analysis, by its over-reliance on a particular definition of power and resistance as the primary subject of the culture wars, and by the recent appearance of a similar but, I think, better book, Age of Fracture, by Daniel T. Rodgers. (As a side note, I would add that this and other histories don't give enough attention to the Dionysian side of 60s culture, which was relevant well into the 70s and which has never figured as much in the legal history/theory literature as it ought to.)

In the end, I think Hartman's claim about the culture wars being "history" is actually subtler and more interesting than other reviewers thought, although his claim--that the previous culture wars ended up neglecting questions of class and capitalism that will have to feature more prominently in any subsequent conflicts--should have altered and enriched both his history and the predictions he offers in the book more than it does. I close on a cheery note:

It cannot be a surprise that either liberatory or reactionary movements of this sort sometimes ended up preoccupied more with who would get to be department chair than with deeper questions of social and economic justice. Yet, early on Hartman does not have much patience for those who argued that the left had forsaken its working-class constituency in what he calls “normative America” for a new brand of emancipatory cultural politics. A more patient engagement with this argument would have allowed him to limn the limits of the “New Left” from the start. It might also have given him a little more sympathy, if not for the leading think-tank neoconservatives, then at least for all those bewildered people drifting within “normative America” itself. As it is, although this is not an especially partial or unfair account, there is no doubt where the author’s sympathies lie. Sometimes he conveys these very subtly, but even then they distort the overall picture. The left is described in essentially objective terms, allowed to speak for itself, sometimes criticized, but almost always forgiven. The right, by contrast, is psychoanalyzed and subjected to frequent spot-checks for concealed motives.

Hartman is pleased with the victories won by the “New Left,” but now urges us to place our focus on economic and not just cultural issues. But the culture wars he describes in this book have long conditioned us to see the personal as political and to identify justice narrowly with personal liberation. He is right to think that this approach leaves important issues off the table. But then, it always did. Why, the reader may wonder, does Hartman seem to notice this problem only at the end of his story? And why, as we enter a new era of similar conflict, should we doubt that the same mistake will happen again?


Posted by Paul Horwitz on December 21, 2015 at 01:31 PM in Paul Horwitz | Permalink | Comments (0)

Saturday, December 19, 2015

Donahoe v. Richards, the Shahada, and Education About Religion in Public Schools

In the nineteenth century, many common or public schools, believing that religious and moral education was important but facing doctrinal disagreements within the broad Protestant majority, adopted a practice that John Jeffries and James Ryan call a "least-common-denominator Protestantism" that avoided areas of controversy. In particular, Horace Mann, secretary of the Massachusetts board of education, instituted "a strategy described as 'a stroke of genius.' Mann insisted on Bible reading, without commentary, as the foundation of moral education." Students would simply read aloud the unadorned verses. As Jeffries and Ryan note, this was not at all satisfactory to the Catholic minority or Church officials:

Unaccompanied Bible reading, which was the cornerstone of the Protestant consensus, was to Catholics an affront. Public school students read from the King James Version, which the Catholic Church did not recognize. Indeed, the very fact of a direct and unmediated approach to God contradicted Catholic doctrine. The Douay Bible provided not only the officially approved English translation of the Scriptures, but also authoritative annotation and comment. Reading the unadorned text invited the error of private interpretation. As one cleric put the point in 1840: “The Catholic church tells her children that they must be taught their religion by AUTHORITY--the Sects say, read the bible, judge for yourselves.” [Para.] Religious conflict over Bible reading grew intense. In Maine and Massachusetts, Catholic students suffered beatings or expulsions for refusing to read from the Protestant Bible[.] 
A couple of arguments, relevant for present purposes, were made by the courts that upheld the imposition of discipline in these cases against students who refused to perform the exercise. One was that the courts should not ride herd too closely on particular decisions made by the schools--their choices of particular books or exercises, etc.; the remedy for that must lie in the political process. Another was that merely being required to read Bible verses, without commentary and without any obligation to believe or follow them, 
is not in fact, and is not alleged to have been, [instruction] in articles of faith. No theological doctrines were taught. The creed of no sect was affirmed or denied. The truth or falsehood of the book in which the scholars were required to read, was not asserted. No interference by way of instruction, with the views of the scholars, whether derived from parental or sacerdotal authority, is shown.
The Bible was used merely as a book in which instruction in reading was given. But reading the Bible is no more an interference with religious belief, than would reading the mythology of Greece or Rome be regarded as interfering with religious belief or an affirmance of the pagan creeds. A chapter in the Koran might be read, yet it would not be an affirmation of the truth of Mahomedanism, or an interference with religious faith. The Bible was used merely as a reading book, and for the information contained in it, as the Koran might be, and not for religious instruction; if suitable for that, it was suitable for the purpose for which it was selected. No one was required to believe or punished for disbelief, either in its inspiration or want of inspiration; in the fidelity of the translation or its inaccuracy--or in any set of doctrines deducible or not deducible therefrom.
Donahoe v. Richards, 38 Me. 379, 398-99 (1854); see also Commonwealth v. Cooke, 7 Am. L. Reg. 417, 423 (Boston, Mass., Police Ct. 1859) ("N]o scholar is requested to believe [the Bible], none to receive it as the only true version of the laws of God.").
Obviously, our views on the propriety and constitutionality of religious moral education in public schools have changed, although most people believe public schools should, must, or inevitably will engage in the moral indoctrination of their students. But I don't think that's the only reason many people would have a problem with the program described above, or with the reaction of those contemporary courts to the mandatory reading of Bible verses. I think the current intuition would disapprove of that exercise even if it were taken for granted, as it was at the time, that schools should engage in moral teaching, and that moral teaching involved a Christian component. Students in such a situation are being made to participate personally and vocally in an activity that engages serious questions of belief, and in which reading the verses, with or without belief, nonetheless enacts a kind of statement of faith or a violation of one's own existing faith. It's at least partly a performative act--somewhere in between making a promise or swearing an oath on the one hand, and pretending to get married while appearing in a play on the other, but far closer to the former than the latter. Students should not lightly be asked or required to do it, whether they are told to believe what they say or not.
Given that background, I think some of the reaction to the complaints about a Virginia school teacher who gave students the homework assignment of copying the shahada--the fundamental statement of faith of Islam and one of the five pillars of the faith, generally translated as "There is no God but Allah and Muhammad is his prophet"--misses something: misses, in fact, the kinds of concerns that make the courts' arguments in cases like Cooke or Donahoe unconvincing.
Lord knows that is no defense of the more heated reactions of parents and others, some of whom sent the usual array of vile threats and disgusting messages. (Also overheated, however, was the subsequent closure of the entire school system for a day by its officials, despite the absence of specific and credible threats.) I shouldn't need to say that, of course, but I want to be clear. Nevertheless, I don't think the defense of the exercise, described in the Washington Post and the Staunton News Leader with the following language, was quite adequate: "The assignment was meant to give students a sense for the art of calligraphy, . . . and the teacher did not have the students translate the statement into English, require students to recite the statement, or say they believed in it." The students were told that the Arabic script they were required to copy was the shahada, and what it meant. The purpose of the exercise was of course quite different from the nineteenth-century practice of reading Bible verses described above, although I imagine that there was a component of moral education involved in the present-day exercise. But the defense of the exercise is not that different, and I think we should react to this particular assignment with at least some caution.
None of this, of course, is meant to disparage the importance, or constitutionality, of religious and/or cultural education in the public schools, or the value, in building civilized citizens, of teaching them about a major faith and civilization in world history. That would be worth doing regardless of any questions of teaching tolerance or combating Islamophobia, for the simple reason that a decent education ought to educate; but of course that too is a part of the value of the lesson, and anti-Islamic sentiment surely had everything to do with the heat of the negative reaction.
That does not mean, however, that any concern about the exercise is illegitimate, or that any and all educational lessons taught with good intentions are equally constitutionally permissible or wise. I am not sure that asking students to copy out by hand the major vow of belief in and allegiance to a particular faith is a permissible or a wise lesson choice, even if an opt-out is given, and for much the same reasons that I think the courts were wrong to uphold the requirement that students read Bible verses aloud without having to believe in them. At a minimum, in responding to the whole incident, we should keep cases like Donahoe v. Richards and Commonwealth v. Cooke somewhere in mind. I have no doubt that students can be taught the words of the shahada, and the shema, and the Lord's Prayer and the Four Noble Truths of Buddhism and so on. But, despite teachers' general enthusiasm for more participatory and hands-on exercises, they should be more cautious in asking students to engage in performative or performative-lite acts or statements involving these or other faiths (including, incidentally, the students' own faiths).       

Posted by Paul Horwitz on December 19, 2015 at 12:22 AM in Paul Horwitz | Permalink | Comments (0)

Thursday, December 17, 2015


I see around the web that it's time for year-end book roundups and recommendations, especially for those seeking last-minute gifts and such. Here are a few, not specifically in law and not necessarily published this year. 

1) Now available in paperback, Zia Haider Rahman's novel In the Light of What We Know is superb. Booklist calls it an "expansive novel [that] sprawls over the past half-century and has as its primary settings the U.S., the UK, and South Asia. Its nameless narrator is an upper-class Englishman of Pakistani parentage, and its main character and secondary voice is the Bangladeshi-born Zafar, the narrator’s brilliant former Oxford classmate. Our narrator gets ensnared in the banking scandals of the early 2000s, and Zafar in the coterminous conflict in Afghanistan. This is, in part, a novel of international geopolitics going back to American involvement (or inaction) in the South Asian wars of 1971; in part, a novel of global finance; in referential detail, a novel of ideas; and, in addition, a novel of personal relationships in which issues of caste and class figure prominently." It's true that the book is substantially about politics and ethnic identity, but for me its many musings about social class, along with its perceptive depictions of failures of self-knowledge, are what make it worth reading. I'm not much of a reader of recent novels, but I thought this one was terrific. The author studied law and banking in the US and UK and has been both an investment banker and a corporate and international human rights lawyer; the book contains many lessons--not necessarily welcome ones. and they won't be learned anyway--for people of this ilk. James Wood's review, which convinced me to read the book, contains the following passages, which are worth reading in themselves and aptly describe why I liked the book and think it would be good for our usual audience and peer group here:

[W]hile “In the Light of What We Know” is full of knowledge, it is never merely knowing. It wears its knowledge heavily, as a burden, a crisis, an injury. This is because Rahman is interested in the possession of knowledge, and in the politics of that possession. Who gets to be called “educated,” and why? And what does knowledge, in a place like Yale or Oxford (or a city like New York or London), really consist of? Why should three or four years studying classics or economics, in élite and antique corridors, be a qualification for, say, running an N.G.O. in Kabul, or talking authoritatively about radical Islamism or human rights in Pakistan? Rahman is deeply suspicious of our claim to know things, and his long novel attempts to tell us, again and again, that we know much less than we think we do, that intellectual modesty in the face of mystery and complexity may be the surest wisdom. . . . 

Even knowledge itself, the novel’s narrator suggests in the book’s final, and distinctly religious, peroration, functioned as a kind of metaphor for Zafar: it was his attempt to find a home. He acquired knowledge—so much of it, and so greedily—not to “ ‘better himself,’ as the expression goes,” but

in order to lay ground for his feet to stand upon; in order, that is, to go home, somewhere, and take root. I believe that he had failed in this mission and had come to see, as he himself said in so many words, that understanding is not what this life has given us, that answers can only beget questions, that honesty commands a declaration not of faith but of ignorance, and that the only mission available to us, one laid to our charge, if any hand was in it, is to let unfold the questions, to take to the river knowing not if it runs to the sea, and accept our place as servants of life. 

2) Between some surgery and a fair quantity of pain medicine, last year and this one were somewhat lost, or at least misplaced, years for me. It is fortunate, then, that it was the year I finally "discovered" World War II as an abiding fascination and reading subject. Lord knows the world is almost as full of enthusiastic readers of WWII histories as it is enthusiastic writers of WWII histories. I am embarrassed that I joined their ranks relatively late in life. The gateway drug for me was Rick Atkinson's Liberation Trilogy, which covers the Allied war in Africa, Sicily and Italy, and Western Europe from the time of the Americans' entry into combat through V-E Day. Atkinson was a foreign and military correspondent for the Washington Post before turning to military history, and he is--unlike many newspaper reporters who have turned to book-length journalism--a superb writer, with an exceptional eye for both anecdotes and set pieces. I started for some reason with the third book in the trilogy, whose extended account of D-Day is brilliant. It's largely a clip-job, but an expertly done one, and its detailed endnotes constitute a perfect reading list for those who want to dive into the ocean of WWII history. After this, I dare say you will also want to read everything Max Hastings has ever written on the subject too, and then about the war in Russia, whose savagery and losses dwarfed that of the war in the West, and then about the naval war, and then, and then...Not an entirely fashionable historical subject, but never an outdated one; and given that our legal culture continues to sanctify FDR, reading about the war, about Tehran and Yalta, and about such dreadful figures as Joseph Davies--may his monuments be renamed--provides a nice partial antidote to that.

More below.

3) Peter Olsthoorn, Honor in Political and Moral Philosophy. Almost a law book! Certainly relevant for a good deal of current constitutional law. The publisher's description says: "In this history of the development of ideas of honor in Western philosophy, Peter Olsthoorn examines what honor is, how its meaning has changed, and whether it can still be of use. . . . Today, outside of the military and some other pockets of resistance, the notion of honor has become seriously out of date, while the term itself has almost disappeared from its moral language. . . . Wide-ranging and accessible, the book explores the role of honor in not only philosophy but also literature and war to make the case that honor can still play an important role in contemporary life." Bookend this one with Jeremy Waldron's recent Dignity, Rank, and Rights and Joanne Freeman's classic history Affairs of Honor: National Politics in the New Republic

4) Like everything he has written since Cryptonomicon and Anathem, Neal Stephenson's Seveneves is pretty damn imperfect. But the first two thirds, describing the end of the world and the loss of most of humanity, are tremendous fun.   

5) I'm writing about class and the legal academy right now (if "writing" is defined loosely and with infinite mercy), and here are some good books, some recent and starting with several by law professors, that have added usefully to my small store of knowledge on the subject: Lani Guinier's The Tyranny of the Meritocracy: Democratizing Higher Education in America; Sheryll Cashin's Place, Not Race: A New Vision of Opportunity in America; Joan C. Williams, Reshaping the Work-Family Debate: Why Men and Class Matter; Daria Roithmayr, Reproducing Racism: How Everyday Choices Lock In White Advantage; Mike Savage, Social Class in the 21st Century; and a superb older book, Jerome Karabel's The Chosen: The Hidden History of Admission and Exclusion at Harvard, Yale, and Princeton.

6) I'm reading Richard Posner's new book Divergent Paths: The Academy and the Judiciary right now for review purposes, so I won't say too much about it, except the following: it's a natural gift choice for law students, professors, clerks, etc.; it contains the usual full store of enjoyable Posnerian observations and apothegms; and there is a good book, maybe several, contained within the book, although I'm not sure that judgment applies to the book itself.

7) If you have time to kill and already invested some of your weeks and months in the first three volumes, I can recommend the fourth and final volume of Isaiah Berlin's letters, Affirming: Letters 1975-1997. The best volumes, sheerly from a reader's perspective, are the second and third, I think. But for those who are interested in Berlin and value pluralism--and I think pluralism is a subject that is curiously missing from many current discussions of law and religion in the United States, stuck as they are right now on the liberty-equality debate, although it is coming back as a topic--this volume provides a lot of fairly detailed discussion of that subject, as Berlin, in the autumn of his life, answers questions from correspondents, defends and clarifies earlier statements, and, while rarely confessing error, notes the questions his position can't answer.  

8) Thomas Vinciguerra's Cast of Characters: Wolcott Gibbs, E.B. White, James Thurber, and the Golden Age of The New Yorker is the newest and lightest of these books and my last recommendation. What can I say? The New Yorker was an endless stream of enjoyable figures, fights, stories, and legends, and they are very well told here. If you haven't already read a stream of books about The New Yorker in its heyday, this is a good place to start; if you have, there's more than enough here that's new to justify reading this one. I'm struck right now, in the middle of reading it, by the loss of two wonderful genres of American literature, of which this book provides many good examples: the letter and the telegram. (In a letter from Ralph Ingersoll to Harold Ross, Ingersoll writes, "The river looks very tempting this afternoon. I suggest--not entirely--facetiously--that you go over and jump in it.") People don't waste their best wit on emails, and anyway they are too afraid of being misunderstood in that affectless medium to risk it. Between the examples given in the book and the everyday example of online media, whether FB or Twitter or the Gawker family, and at the risk of committing the Golden Age fallacy, I am filled with the impression that somewhere along the way, America mislaid its rapiers and stilettos in the dark and picked up bludgeons instead.          


Posted by Paul Horwitz on December 17, 2015 at 10:19 AM in Paul Horwitz | Permalink | Comments (4)

Saturday, December 05, 2015

A Brief Update on the "Movie Night" Post

A few days ago I posted about the AALS's upcoming screening and discussion of the movie "Hunting Ground," which deals with campus sexual assault. I noted the seriousness of the issue and my expectation that discussion after the screening would be varied and useful. But I also noted that the movie has received a number of strong criticisms, some of them related to an incident involving a law school that receives prominent play in the movie. I linked to some of those, and to the filmmakers' detailed defenses of the film (while noting that some of their general statements in defense of the movie are "heated but weak"). I concluded:

Given that one of the filmmakers will be present for the screening and discussion, I assume those points will be fully aired. At the same time, given that [writer/director Kirby] Dick describes himself as "both an activist and a filmmaker" (a common feature of many current documentaries and one that raises important concerns, particularly for those of us with more conventional views on journalism), and that one of the film's producers wrote to . . . [a representative of] a potential interview subject, "We don’t operate the same way as journalists — this is a film project very much in the corner of advocacy for victims, so there would be no insensitive questions or the need to get the perpetrator’s side," I thought that people thinking of attending the screening might want to be aware of these criticisms, and better able to explore them during the discussion.  

In light of the hope for full and useful discussion--why else screen a movie by activists, one that has been sharply criticized for bending its narrative toward its goals?--I should note this recent story in the Harvard Crimson, in which the filmmakers, inter alia, double down on their attack on critics. Here's the key paragraph from the story:

In an emailed statement, “The Hunting Ground” director Kirby Dick and producer Amy Ziering . . . criticized the Law School professors, many of whom have been vocal critics of Harvard’s recently overhauled approach to handling sexual harassment cases, for their letter critiquing the film. 

“The Harvard Law professors’ letter is irresponsible and raises an important question about whether the very public bias these professors have shown in favor of an assailant contributes to a hostile climate at Harvard Law,” Dick and Ziering wrote.

This places the possibility of useful discussion after the screening, and hence, perhaps, the value of the AALS's choice to screen the film at all, in a somewhat new light. (Given how recent the statement is, I of course don't hold the AALS responsible for not anticipating it, although it is probably true that the filmmakers themselves turn out to have been less than ideal panelists.) There are surely more charitable ways to read that statement. A less charitable, but still reasonable, reading is that the filmmakers are, in effect, threatening any academics who publicly criticize the film, attempting to cow them into silence by warning that any statements will trigger efforts to encourage a Title IX investigation of their institution.

Although I doubt they have a leg to stand on, it's an unfortunate approach, to say the least. I hope that AALS members attending the screening will nevertheless feel free to ask any questions they like, positive or negative, and will press the filmmaker on this particular statement itself. I also hope the screening's moderator will make note of this statement before the discussion starts, both out of fair notice to any would-be questioners in the audience, and to make clear the AALS's view that attempting to pre-emptively chill discussion is no way to address an important and pressing issue.   

Posted by Paul Horwitz on December 5, 2015 at 11:25 AM in Paul Horwitz | Permalink | Comments (0)

Friday, December 04, 2015

The CIA Learned From the Master

I'm grateful to Rick for posting an excerpt from that CIA document on organizational sabotage. I was surprised, when vast numbers of people started posting it on my Facebook feed, to find that the Slate article talked in general terms about "toxic workplaces" and that my 'friends' who were posting it--most of them academics--did not immediately relate it to university governance. For, as a commenter on Rick's post notes, it is academic governance to the life. It used to be even more so; when academics actually governed universities, and university governance also involved coordination among and between colleges, it could not more closely have resembled the CIA's pamphlet. Now university governance has been centralized and leadership has been assumed by, essentially, professional managers who may happen to have doctorates in some subject. (On the whole, and for all its costs and losses, flaws and absurdities, I think that is both inevitable and a probable improvement.) But it still very much characterizes the governance of individual faculties and departments.

I offer all this by way of pointing out that the much-shared CIA document bears a great similarity to a classic satirical work on academic politics, the Cambridge classicist Francis Cornford's Microcosmographia Academica. Indeed, I wouldn't be surprised if the author of the CIA pamphlet was aware of and cribbed from Cornford's essay. Every denizen, friend, or frenemy of the academy ought to read that short, hilarious, instructive work. I would add that it's short enough to print out and bring along to faculty meetings--mostly to have something to read, but also as a field guide and useful source of advice. (There is also a nice published edition with a historical and explanatory essay--makes a fine Chanukah gift!) Of course it applies more broadly than its original context of academic politics at Cambridge in the late 19th and early 20th centuries--if Wikipedia is to be credited, pieces of it pop up as dialogue in Yes Minister--but the university was its inspiration and it still applies there, at least within individual schools and departments. The CIA pamphlet is fun, but clearly some donnish young analyst recognized that for instruction in such matters, one must learn from the best.

Incidentally, it reminds me of a wonderful quote from the newest volume of letters by Isaiah Berlin. In it, Berlin is describing his friend John Sparrow, the long-serving Warden of All Souls College: 

In College, to which he was in a sense devoted, his principal achievement was blocking--with the greatest ingenuity, style and brilliance--the slightest change in its arrangements. He did not always succeed, of course, but his efforts in that direction were wonderful to behold . . . . [Despite occasional opposition on Berlin's part,] I cannot deny that I watched his manoeuvres to outwit and stymie his colleagues with the most fascinated, if somewhat disapproving, admiration. His virtuosity in that respect was, in my experience, unparalleled.



Posted by Paul Horwitz on December 4, 2015 at 10:25 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, December 02, 2015

Background reading for "Movie Night"

Yesterday the AALS made the following announcement about an event at its upcoming annual meeting:

The AALS Law and Film Series presents feature and documentary films chosen for their cinematic and legal value, identifying film resources for possible classroom instructional purposes, as well as for raising general awareness of law and film. For each of the two nights of film showings, we will present films chosen by the AALS Annual Meeting Film Advisory Committee. There will be brief discussions and commentary in connection with the films. . . .

Friday, January 8, 7:30 pm

The Hunting Ground is a 2015 documentary film about the epidemic of rape on American college campuses. The film follows several survivors of sexual assault as they encounter retaliation and pushback at every level of campus life. It details the lack of effective institutional response as the students discuss the failure of college administrators to support them and the toll reporting these crimes took on their lives. The film reunites writer and director Kirby Dick and producer Amy Ziering, the team behind the Oscar-nominated documentary The Invisible War. Join moderator Professor Jessica Silbey for a discussion after the film with Director Kirby Dick.   

Speaker: Mr. Kirby Dick, Chain Camera Pictures Inc. 

Moderator: Jessica Silbey, Northeastern University School of Law

I have not seen The Hunting Ground and cannot comment on its merits. It seems worth noting, though, both that the movie is prominently features a case involving Harvard Law School, and that a number of professors at the law school issued a public letter criticizing both the film and its treatment of that incident. They charge in the letter that the documentary "provides a seriously false picture both of the general sexual assault phenomenon at universities" and of the student accused in that specific incident and the process in that case. The Times article also links to this critique of the film, and specifically its treatment of that case, by Emily Yoffe in Slate. 

None of this, of course, is meant to question or even to comment on the very serious issue of campus sexual assault, which has been a concern of mine at my home institution. I assume that critiques of the film, and open-ended discussions about how to address the larger issue, will be very much a part of the moderated discussion and that this has always been the AALS's intention. The filmmakers have a response to the professors' letter here and a response to Yoffe's piece here. They are more detailed, certainly, than the responses provided by the filmmakers in the Times story and in Yoffe's piece itself, or here, all of which are heated but weak.

Given that one of the filmmakers will be present for the screening and discussion, I assume those points will be fully aired. At the same time, given that Dick describes himself as "both an activist and a filmmaker" (a common feature of many current documentaries and one that raises important concerns, particularly for those of us with more conventional views on journalism), and that one of the film's producers wrote to the attorney/relative of a potential interview subject, "We don’t operate the same way as journalists — this is a film project very much in the corner of advocacy for victims, so there would be no insensitive questions or the need to get the perpetrator’s side," I thought that people thinking of attending the screening might want to be aware of these criticisms, and better able to explore them during the discussion.  


Posted by Paul Horwitz on December 2, 2015 at 10:37 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, November 25, 2015

Bagenstos and "The Long Arc of the Accommodation Debate"

Howard always does a fine job of promoting his corner of Jotwell; I do not. But here is my con law jot on Samuel Bagenstos's excellent article "The Unrelenting Libertarian Challenge to Public Accommodations Law." Jotwell is devoted to writings that the editors and reviewers "like lots," but one can "like lots" an article that one doesn't entirely agree with, or that is not wholly in line with one's priors. When I can, I prefer to select articles of that sort for my own (rare) jots. So here is a jot on an article that I think superb and that "has troubled me for a year now." It is also, I suggest, one of the first and still one of the best of the current burgeoning line of what I call [anti-] "neo-Lochnerism" scholarship.

A contrary perspective can be found in the same journal issue in this article by Richard Epstein, but my discussion is along different lines. It spotlights the article's arguments and strengths, while emphasizing the implications of Bagenstos's observation that the balance between the "public" and "private," or "civil" and "social," spheres may prove permanently unstable and continually (but not constantly) contested. (In my view, legal academics are therefore unlikely to make unique or lasting contributions to the core conflict.) The strong critical insights Bagenstos brings to bear on previous attempts to fix the line between permissible and impermissible regulation apply well to the libertarian arguments he discusses, but they also apply to the other side of the debate.

One thing the article suggests, by comparison with later articles on "neo-Lochnerism," is that although many current liberal or progressive articles in the law reviews make use of Critical Legal Theory or Crit-type arguments to undermine their opponents and thus attempt to entrench a more egalitarian or progressive legal regime, there is a startling unwillingness in that literature to name CLS as the source of these undermining arguments, and still more reluctance to acknowledge that those arguments might undermine or destabilize their own positions. I should add that this point emerges from a reading of Bagenstos's article against some of the more recent literature; it's not a criticism of Bagenstos's article itself. Such, perhaps, is the inevitable fate of the Crits, who are applauded by normatively oriented legal scholars who are trying to resist some legal regime, but treated as unpersons when these scholars are trying to establish or entrench such a regime.

Some excerpts after the fold. If you haven't already, read Bagenstos's article!  

Samuel Bagenstos’s excellent article, The Unrelenting Libertarian Challenge to Public Accommodations Law, has troubled me for a year now. Anyone seeking to elaborate, and in some cases defend and expand, the developments it describes and, I think, implicitly criticizes, must reckon with it. As this Jot argues, however, so must supporters of Title II, who may find that their arguments defending it, and their reassurances about its scope and limits, are equally subject to the undermining logic of Bagenstos’s own critical—or Critical, if you like—argument. As he concludes, the conflict over just “how deeply the antidiscrimination norm may properly penetrate into previously ‘social’ spheres” is a real one, and unlikely to go away, for reasons that apply to both sides in the debate....

No matter their priors, people interested in public accommodations laws can profit a great deal from this article. Libertarians will find much valuable history and analysis, and perhaps an invitation to display greater candor or self-awareness about the nature of their project. Those who champion religious accommodation, even in the realm of public accommodations, for non-libertarian reasons will also find cause for concern here. For reasons both strategic and sincere, few supporters of religious accommodation want to attack entirely the underlying logic of laws forbidding discrimination in public accommodation, at least where race is concerned. Much of their own project consists of efforts to draw reasonable lines between for-profit and non-profit enterprises, or between the public and private or civil and social spheres. In doing so, they will have to reckon with Bagenstos’s article, which reveals the potential instability or incoherence of those efforts.

And defenders of an expansive reading of public accommodations laws, in the face of religious or other challengers and seekers of exemptions? They, too, ought to have reason for concern after reading Bagenstos’s article. That is perhaps the best evidence of its success as legal scholarship, of its genuinely analytic and descriptive nature. This is not simply a liberal critique of the libertarian challenge, but a critical take, drawing on the literature of Critical Legal Studies. Like the public-private distinction, he argues, the distinction between civil and social rights turns out to be “unstable and continually”—we might even say essentially—“contested.” Here, he cites Duncan Kennedy. Similarly, efforts to draw a distinction between commercial and expressive associations are “unstable.” He acknowledges that multiple readings and legal options are available in response to what, quoting Jack Balkin, he calls a “pervasive welfare state.”

Little wonder, then, that “[w]e continue to struggle over the proper placement of the civil-rights/social-rights line, nearly fifty years after Congress and the Supreme Court supposedly laid that distinction to rest.”(P. 1220.) .... 

If there is a surprise in the current neo-Lochnerism literature, it is that so much of it relies on Critical Legal Theory’s insights, yet virtually none of it cites the literature, or acknowledges the double-edged nature of those insights. A Westlaw search for articles containing the terms “Lochner” and “Hobby Lobby” since the beginning of 2012 yields 43 results; add “Duncan Kennedy” to the mix and the number plummets to two. One is mostly irrelevant, and the other is Bagenstos’s article. To reveal the instabilities in another’s argument is human; to fail to notice that you have also dug a hole under yourself is, well, all too human. It is telling, perhaps—whether of extreme certitude or great insecurity is not clear—that these efforts to entrench a new liberal settlement routinely deploy the Crits’ analytical moves, but otherwise consign the Crits’ names and works to the memory hole.

Therein lies the relative weakness of the new defenses of public accommodations laws against religious challengers, and the scholarly strength of Bagenstos’s piece. It does indeed suggest a more sweeping arc to the narrative of challenges to public accommodations laws, one connecting past, present, and perhaps future. It does so on a sound basis, mostly without appealing to essentially irrelevant arguments about the challengers’ motives or funding..... 

Most important, it recognizes that the instabilities and uncertainties in this area are inevitable and universal. The question “how deeply the antidiscrimination norm may properly penetrate into previously ‘social’ spheres”—whether its limits are substantial, whether the government may override associational choices altogether, or whether the balance rests at some unstable point in between—is and must be a subject of continuing contestation and re-evaluation. Every new era, with its fresh controversies, demands its own renegotiation—if not of the unstable line between “public” and “private,” then of the reasonable reach and limits of state power in practice. Hence the haunting nature of Bagenstos’s fine article. 


Posted by Paul Horwitz on November 25, 2015 at 11:15 AM in Paul Horwitz | Permalink | Comments (0)

Monday, November 23, 2015

Platinum Cards of Social Change II

In a post a couple of months ago titled "Social Movements: The Platinum Card of Social Change," I offered some thoughts on a Balkinization post by Mark Graber. There, Graber wrote, "The Constitution of the United States remains an effective means of combatting governmental policies that inflict stigmatic harm on members of the upper-classes, but a far less effective means of combatting government policies that inflict material deprivation on the lower classes." I suggested in response that "Graber's statement would still be largely true if it were extended beyond the Constitution and the courts, to say that social movements are a relatively effective means of serving the social interests of the upper classes, and a relatively ineffective means of serving the material interests of the lower classes." I concluded with this observation/prediction:

One might question whether the current prominence of the Black Lives Matter movement serves as a counter-example. I doubt it. For one thing, it's too early to know how successful the movement will be. For another, it's possible that the movement's greatest tangible reforms will end up being directed toward stigmatic harms shared by African-Americans of all socio-economic levels and not material harms suffered by the poorest in the community. Finally, and I suspect this is true of most or all social movements, at the end one would want to know how much of the actual payout resulting from the movement and whatever reforms it achieves is siphoned off, cy-pres fashion, by more affluent sectors--giving rise to more jobs by professional consultants, for instance, or resulting in foundation grants to think tanks and most certainly to universities and their many institutes

That sentence was recalled for me the other day by the announcement that Brown University "expects to spend more than $100 million over the next 10 years to deal with issues of racism and diversity at the institution." That announcement, of course, stands alongside Yale's recent announcement of a $50 million diversity initiative--directed primarily at faculty diversity, not at students.  

Since my prediction was based on the same historical experiences and tendencies, if not inevitabilities, that underlay Graber's post, there's no back patting involved here. I just thought the Brown announcement, taken together with Yale's and (doubtless, given both genuine sentiment and competition in the elite university market) others to come, was a striking example. One might add the following:

1) This shouldn't be seen just as a response to recent campus protests, I think, but should be seen as a response in some measure to BLM and other protests, debates, and social movements over the past year or so. A lot of the recent discussions have focused on universities and campus issues in isolation, but they should be seen as having some relation to a larger social movement. 

2) One needn't approve or disapprove of how private universities choose to allocate their resources to note nevertheless that if the most substantial acts of resource redistribution in response to such movements takes place at elite and/or well-funded universities--and, moreover, is often directed at faculty and administrators rather than students or applicants--this is not, perhaps, a response directed at those institutions or sectors of the population that most urgently need resources and reforms. We could, I suppose, view universities as serving as vanguards of social change; but we could also view the story as one of a form of capture or siphoning of the energy of social movements toward narrower and more elite interests.

3) I say nothing here about the motives of the institutions in question, or of those who end up devoting greater efforts toward, and/or enjoying more success at, resource redistribution within elite institutions than elsewhere. My assumption, however, is that we should apply to the universities' actions the same kind of analysis we would apply to the actions of other large corporations. I assume there is a good deal of sincerity in these actions (just as, in fairness, there is a good deal of sincerity when a tech company pushes for equal benefits for same-sex couples, or a religious closely held corporation sues to avoid complicity in the provision of coverage for abortifacients). But I also assume, as I would with other corporations, that sincerity alone does not result in the ostensible movement of tens of millions of dollars. Presumably there are also intra-institutional politics and resource disputes involved, and possibly these announcements are also efforts to buy peace, occasionally to buy silence or co-opt various actors, and to compete with other institutions in the university market. 

Posted by Paul Horwitz on November 23, 2015 at 11:01 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, November 18, 2015

Some Interesting Data From the Yale Law Journal Survey

A statement from the Yale Law Journal announces the release of two reports as part of a two-year project of "address[ing] our diversity challenges and identify[ing] ways we can better foster an inclusive community." One of those is described as qualitative. The other is quantitative: Patterns in Yale Law Journal Admissions and Student Scholarship, by Ian Ayres and Anthony Cozart. Many of the data are quite interesting, with "interesting" here meant more literally than the word generally is in blogging; the word is used with no intention of signaling irony, suggestiveness, or implicit judgment.

By way of background, I should note that I am (slowly, slowly) at work on a book about social class and the American legal professoriate, with the general and, I hope, non-partisan thesis that social class, both currently and as a matter of background, influences the individual and cultural surround of law professors and, hence, affects the issues they are most likely to view as salient and to make a focus of their writing. This is (I will argue) often implicit and relatively rarely acknowledged; that in turn often takes social class both as a subject and as an admitted influence off the table, and makes class itself a less salient or frequently examined issue or identity aspect than other aspects of identity that receive frequent discussion. Without here suggesting how scholarship might change if things were different, and what topics might be more frequently discussed and (as important) accorded more prestige if they were--and certainly without suggesting that it would or must necessarily come from a particular political position--I suggest that more self-awareness and -examination would have an effect on the body of scholarly work produced by law professors, if greater recognition were given to class and its effects on who we are and what we see and do. (Needless to say, I'm happy to hear from correspondents on this project--especially those law professors who think their own experience and/or background is highly unusual in one direction or the other, or conversely who think their background is utterly typical, and might be willing to share that experience and their observations and views.)

My project focuses on the professoriate, not the students. In the case of Yale, however, that distinction is famously thin and the data on students might be viewed as a study of embryonic law professors. Much of the interesting data appear in a chart at pages 7-9 discussing the characteristics of all applicants, including transfer and third-year students, to volumes 123 through 125 of the Yale Law Journal. There is this, for instance, on the political views of the applicants:

Political Views:

Democratic, Liberal, or Progressive 35%

Republican, Conservative, or Libertarian 9%

Moderate 17%

Other (e.g., Independent) 6%

Did Not Disclose 44%

I do not find any of this terribly surprising (and I  hope people don't equate "interesting" with "surprising"). But I am curious about the large percentage who did not disclose their political identification. There are all kinds of reasons one might refuse to disclose this, and having no reason at all or asserting that it ought to be irrelevant would be fine with me. But it is much higher than, say, the number of students who did not disclose or provided no information about their racial identification. Among other possibilities, I'd be interested in knowing whether many of these students were conservative and unwilling to say so. Or, rather, were they liberal or progressive and unwilling to answer for more strategic reasons--because they thought it would be detrimental to have too large a percentage of the class openly identified as such?

Highly interesting as well are the data on what the study calls "Family Characteristics." Of the students surveyed--who, remember, were students who had applied to the YLJ, not just the editors of that journal--46 percent disclosed family incomes of $100,000 or greater, including 19 percent from families with incomes over $250,000. (By comparison, those with family incomes under $60,000 made up 11 percent of those surveyed. Again, a high number of students--23 percent--did not disclose any family income information. On parental education, fully 45 percent of the journal applicants surveyed reported that both parents had attended graduate school--kind of a patrimonie des clercs. (No data are given on the percentage of applicants with at least one parent who attended graduate school.) Of the students themselves, 29 percent had attended Harvard, Yale, or Princeton, and 43 percent some Ivy League university, while 35 percent attended a private non-Ivy university; by contrast, the 2011 CHE Almanac showed 73 percent of post-secondary students attended public colleges and universities and 0.4 percent attended Ivies, with 16 percent attending private colleges and universities. Only six percent of the applicants surveyed provided no information about their educational background. Also, ten percent had also attained a master's or doctorate.    

All interesting, and of course there is much more in the study. For my purposes, I regret that the portion of the study that looks at students whose notes or comments were accepted for publication focuses on race and gender only, not on family or educational background. 

Posted by Paul Horwitz on November 18, 2015 at 08:26 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, November 11, 2015

A Good Week for Civil Liberties and (Maybe) Old-Fashioned Liberalism

It is now a commonplace assertion that in various ways, our social dialogue, especially on college campuses, is echoing or repeating the debates over "political correctness" that gained great prominence in the late 1980s through the mid-1990s. Although an article by Jonathan Chait helped lend a lot of attention to the "we're reliving the 90s, give or take Kurt Cobain" thesis, it was on many people's minds for some time before that. Initial critical responses to Chait's argument were interesting. Many were primarily ad hominem, while studiously avoiding the thesis itself; others agreed with the thesis and deplored some excesses while describing it as an "internal problem"; nothing to see here, folks! While there was certainly some skepticism about the general claim, few denied it outright. (I have no problem with the skepticism as such, incidentally. How to characterize the mass of people's views, when to conclude that anecdotes are indicative of a social trend and when they are not, and what weight to give it are standard problems of recent history and subject to standard contests. It is fair, however, to note that it is a common problem. We have long since accepted, more or less, a standard narrative of the 1960s in America that makes sweeping characterizations about the wider culture based on the complex, mixed actions of a relative few, and that asserts a connection between the hippies and protesters of the United States and more revolutionary movements in Europe, rather than seeing them as incidental or exceptional, or finding more kinship between these American individuals and 50s liberals, or hedonists of any age, although the long-term arc of that generation was at least as much careerist, self-serving, and establishment-oriented as revolutionary. Moreover, contemporary progressives also rely on anecdotes to make sweeping and optimistic, albeit different, arguments about the narrative of our own time. Such is the ineluctable nature of contemporary historical argument.)

The events of the last week--at Yale, especially, and the incident involving a reporter at Missouri--have shifted that narrative rather quickly, although perhaps no more justly. Anecdotes are still anecdotes. Still, Chait (sorry to focus so much on him; it's not a matter of strong identification or agreement, so much as that he nicely represents and records the shifts I'm discussing here) is probably right to observe, with a certain amount of earned satisfaction after the personally directed drubbing he took, that it is okay for more people, including supporters of the movement, to talk about "political correctness" now. We needn't and shouldn't make much of the label itself. The point is that more people are now willing to accept as an actual trend an impassioned movement stressing identitarian issues, strongly privileging a forceful form of egalitarianism over potential competing liberty interests, arguing for a radical departure from traditional interpretations of free speech rights, and insisting that, both as a matter of initial description and in those cases where they must be balanced against other interests, free speech rights conventionally understood should be subordinated to equality interests. That is, indeed, the 90s debate redux. Of course there are differences--in controversies, language, institutions, and so on. There are also differences between mallards and blue-winged teals. But the kinship is clear and more people, on both sides of the debate, now accept it with less caviling or outright resistance. 

What was missing was the ability to foretell where things would go next. In the 90s, ultimately many lessons were learned from the movement, but its more non-liberal edges, particularly in the area of free speech, were smoothed over. Ultimately, there was significant pushback from liberal institutions and individuals, on and off campus, who reasserted their views and authority--or hegemony, if you prefer.

My sense is that the events of the last week have gone a long way to complete that half of the 90s-analogy equation. The critical--or reactionary, if you prefer--response has been swift and pretty widespread. Civil libertarians, rather thin on the ground this past decade, have been more vocal. Most important, perhaps, and this was true and essential in the 90s as well, many of the critical voices have come from within the liberal, and even the progressive, fold (if one thinks of the two terms as involving more than propaganda strategies and sees an actual difference between them, as I do). We always and necessarily see through a glass darkly. But my sense is that, precisely because of and not despite these high-profile incidents, this has been a very good and encouraging week for traditional civil libertarian views of free speech. 

Two notes are worth making here. The first is that, although my preferences are perhaps plain, this is intended mostly as descriptive, and whatever agreements or disagreements I may have with particular movements and arguments, my description does not depend on any conclusion that the current campus movement has no legitimate grievances or insights to offer. It has both, in my view--although, of course, that hardly requires unquestioning acquiescence on characterizations, goals, or remedies. Nor, although I tend to have fairly traditional liberal and civil libertarian views on free speech and related matters, does the increased likelihood as of this week that those traditional views will reassert themselves, on the ground and in public dialogue, immunize them from ongoing criticism and revision. Differing views about broad, fundamental, and incommensurable goods and values are always on the table. It is no more illegitimate for progressives of a strongly egalitarian cast to push for a recalculation of the balance between liberty, equality, dignity, and so on than it is for religious conservatives to argue for a readjustment of the balance between private conscience and public legal obligations. These things are always up for debate and renegotiation, and arguments about who is on the "wrong side of history" have little intellectual value on this side of the Eschaton. I suspect the recent incidents will lead to a reassertion of the hegemony of more conventional and less radically egalitarian liberal views on free speech; but I will be perfectly content if this is not accepted uncritically as a good thing. 

The second and, to my mind, more interesting question is whether, if I'm right about the general prediction that this was a good week for traditional civil libertarian and conventional liberal views, much or any of that good will end up credited to the account of what used to be a fairly substantial social force: liberals and liberal institutions. If the 90s debate ended up with a reassertion of intellectual or institutional authority by liberals, as against more radical views on campus, that depended on the existence and power of both establishment liberals and liberal establishments. It made a difference that there was a Henry Louis Gates to write "Let Them Talk," a New Republic to publish it, and a White House to stock the magazine as its in-flight reading (as TNR's publicity department never tired of reminding people back then). Are the same institutions there today, or as likely to assert the same views? The New Republic has changed owners and philosophies, demonstrated an eagerness to disavow virtually the entire magazine's past in response to criticisms of its current status as a vertically integrated thingamajig, and was silent on all these issues for a week (despite running countless other items on transient matters) until it ran a piece today--and that piece was largely about validating and appealing (in the sense of appealing for their readership) to student activists, while mostly studiously avoiding any discussion or position on civil liberties questions. The Missouri ACLU spoke out about matters of press access. But the ACLU as a whole, given issues on which it has switched positions or avoided much vocal activity altogether, is less strongly associated with liberalism or even conventional civil libertarianism today than it was 20 or 50 years ago. Its public prominence on these issues has largely been claimed by groups solely concerned with campus civil liberties, or by groups more closely associated with conservatism. (Often, rightly or wrongly, the former groups are categorized by many as members of the latter set of interest groups, just as the ACLU was traditionally lumped together with liberal interest groups by many despite asserting that it had no political valence.) The center of liberalism, or progressivism, has shifted considerably, a matter on which I again take no normative position here. Having shifted, it's not clear that there will be as many liberal groups or thinkers ready, willing, or able to take on the role, or acquire the credit, that ultimately accrued to conventional liberal figures and institutions 20 years ago.

My sense, and prediction, is that this will have turned out to be a good week for the reassertion of more conventional, old-fashioned, liberal and/or civil libertarian views on matters of campus speech, free speech more generally, and the eternally difficult balance between liberty and equality. But I am much less confident that any benefits or acclaim for this will accrue to liberal groups or institutions, as opposed to groups and individuals that identify as conservative. If I'm right about that, I will tend to think of it as cause for regret, although I don't think my feelings about it are terribly important.  

Posted by Paul Horwitz on November 11, 2015 at 01:46 PM in Paul Horwitz | Permalink | Comments (0)

Wednesday, November 04, 2015

Other Data I Would Like on Bar Passage--and Some Questions Not Entirely Susceptible to Data Analysis

I have learned a lot from both the serious and the casual work of Michael Simkovic. This is not entirely a matter of normative agreement, or at least I hope it's not, since the "greatest new scholar ever"/"worst villain since Stalin" dichotomy that tends to follow in the wake of work of his posts does seem normatively driven and rather silly. And I think it's both fine, and correct, to say that failure to pass the bar exam on the first try is not the end of a potential lawyer's career. That said, I would like to know more than he provides in this post.

In particular, I would like to know first-time and subsequent bar passage rates by school. It is true, as Simkovic writes, that the failure to pass the driving test on the first time is not generally viewed as precluding an opportunity to take it a second or third time. (Although perhaps we should be stricter with driving tests, and in any event my intuition about driving tests seems different from my intuition about, say, failing the medical boards multiple times. Driving and practicing medicine are both privileges, and both are dangerous activities. But no one thinks in terms of a right to be a doctor, and while driving helps in all sorts of primary activities, medical school is a long hard slog for the specific purpose of engaging in the practice of medicine and "MD-advantage" jobs.)

But if a driving school has a record of sending off its students to fail the driving test on the first attempt, and particularly if it consistently has a worse record than competitor schools with a similar client base, surely that suggests that there are problems with that driving school--even, in some cases, that the school is taking undue advantage of its students. Moreover, the worse the driving school's record is, the more likely I am to suspect that subsequent passage has much to do with the driving student's own efforts to study for and retake the test, perhaps more than once, and that the driving school itself did not contribute significantly to that ultimate success. In such circumstances, it would be fair to conclude that if other schools achieve better results with something like the same cohort, students may be made worse off by having gone to the lower-passage driving school rather than another school. Turning to law and speaking more generally, perhaps the ability to pass the test on subsequent tries, possibly despite rather than because of the education provided by that particular school, indicates either problems with using the bar exam as a barrier to entry at all, or with insisting on an ABA-accredited law school degree as a prerequisite to taking the exam, or some combination of the two.      

I would also like to know more about subsequent careers. Simkovic focuses mostly on future earnings for those lawyers, asserting that first-time bar exam failure is probably correlated with lower earnings ability but arguing that this matters less than the value-added to those eventual lawyers of having attended law school. That may well be true--for the lawyers. But I'm also--perhaps primarily--interested in the clients, beside whose needs, problems, and disadvantages the current or future well-being and state of relative disadvantage of law students seems to pale in both magnitude and importance.

What is the disciplinary profile of lawyers who failed the bar exam the first time, or second or subsequent times, compared to that of lawyers who passed on the first round? This LSAC report on a study of lawyers admitted to the Connecticut bar between 1989 and 1992 found that "approximately 6.7% of the never disciplined group failed the Connecticut bar examination on at least one occasion prior to admission, as compared to a nonsignificant difference of 10.7% of the severely disciplined group (see Table 6), and 16.9% of the less severely disciplined group (p < .05, Table 5)." But the study has appropriate caveats about its limits and about problems obtaining some data, especially about discipline in other jurisdictions. And I would want to know more about whether lawyers taking the bar exam in Connecticut fit a similar profile with lawyers taking the exam in other states (like Florida or California) and attending a different array of schools. I also would want to know something about the number of complaints filed, not just discipline imposed. It's a problematic number, not only because complaints are not proof of wrongdoing but because some clients may be more likely to complain with or without reason. On the other hand, lots of grievances stemming from genuine problems of poor management or low competence or unfairness to clients are disposed of without proceeding to final disciplinary decisions.  

I don't know whether there are other studies out there. I do note this report based on an examination (by reporters, not professional social scientists) of a much larger number of people taking the qualifying exam for stockbrokers, which suggests that those who failed the test repeatedly had worse disciplinary records than those who passed the first time. I would similarly want to know, regarding the bar exam, whether the likelihood of disciplinary problems went up with multiple failures. After all, few people, if anyone, think that people have a right to take the bar exam an indefinite number of times. So we might be interested, for clients' sake, in setting a cap on the number of times one can take the bar exam. Fail me once, shame on you; fail me eight times, shame on us.  

 The story also notes that one response contemplated by the Financial Industry Regulatory Authority was to disclose to investors the prior failure or failures of the stockbroker. Perhaps we could balance the interest in allowing lawyers to take the bar exam multiple times against the need to protect clients and provide them with relevant information by requiring lawyers to disclose to clients their prior failure on the bar exam. Just as law students should be treated as adult agents and allowed to make their own decisions whether to attend law school, as long as the schools are providing accurate information, so clients might be given that information and permitted to decide for themselves.     

Most of these questions are just that--questions. I'm not criticizing what Simkovic does provide, or strongly disagreeing with the conclusions he offers; to the contrary, I'm grateful for the post. I simply would like to know more before signing on to particular conclusions or recommendations too whole-heartedly. I would especially want to know more about the welfare of clients as well as the future success of lawyers. And I take it Simkovic would agree that none of what he does say precludes a number of possible concerns and conclusions or normative views.

Taking it as a given that first-time failure does not say enough about subsequent success or competence as a lawyer to justify stringent rules barring subsequent retaking of the test, and that the first-time bar passage rate does not tell us everything about a law school that we would want to know, I take it one might still conclude, depending on additional data but also on some reasonable normative views, that: 1) a high first-time failure rate might indicate problems at that school; 2) high subsequent failure rates would also be cause for concern about that law school; 3) if first-time or, perhaps more likely, repeated failure of the bar exam correlates to a greater likelihood of subsequent complaints or discipline, that should be cause for greater concern, given that the primary concern of state bars and accrediting agencies, if not the law schools themselves, should be the welfare of clients; 4) other measures, like disclosure of failures to pass the bar exam, might help address concerns for client welfare and are not out of the question; 5) given the relevant information, we might be able to think productively about setting a cap on the number of times one can sit for the bar exam; and 7) none of this is dispositive on the question whether barriers to entry into the legal guild should depend on one or both of a degree from an ABA-accredited law school and/or passage of the bar exam as presently constituted. 

Finally, a few words on this passage:      

It would be strange if newspapers claimed that those who fail a road test on the first try are doomed to never obtain a drivers license, will never be able to hold down a job, and should never have enrolled in high school in the first place.  But in the world of legal education, members of the press too often make comparably misinformed claims about law students and the bar exam.

It's just an analogy, of course, and thus of limited probative value; lawyers over-rely on arguments by analogy, in any event. As it happens, I agree with some of what it suggests. But it's a little odd. The most serious concern with the analogy is that it links the driving test to education in general, not to driving schools in particular. We generally require every child to enroll in high school, treating it as a gateway to responsible work and citizenship in general; we do not treat a legal education as necessary for all. If a particular high school failed to graduate a substantial number of its children, we would of course want to know what external factors, such as poverty, contributed to that. But we would also worry that the school was failing in important respects, especially if similar schools with comparable cohorts were doing a better job of education, as reflected (imperfectly, perhaps) in graduation rates. It would be strange if someone claimed that someone who fails to pass a driving test on the first try is doomed never to be able to hold down any sort of job, driving-related or not, but I've never heard such a claim. Conversely, given appropriate data, one might reasonably be more concerned about whether those who fail a driving test two, three, or more times should be employed in a job whose primary activity is driving a fast, heavy, dangerous vehicle. Concern for the future earnings of that individual might be viewed as less important than the possibility of that individual inflicting harm on innocent third parties. Newspapers may well be wrong to say (if they have said it) that a first-time bar exam failure suggests that the individual will never be a competent practicing lawyer and should never be able to retake the test, and should not even have been able to enroll as an undergraduate. They might be on more solid ground if they suggested that schools that show a low bar passage rate as compared to similar other schools might be doing a disservice to their students and might have problems that need to be addressed. And they certainly ought to factor the well-being of clients, and not just lawyers and law students, into their reporting or opining. Again, however, it's merely an analogy and less important than the material provided in the rest of the post, for which I'm grateful.       


Posted by Paul Horwitz on November 4, 2015 at 10:35 AM in Paul Horwitz | Permalink | Comments (0)

Sunday, November 01, 2015

The Lawyering-Up of Bin Laden's Killing, Project Censored, and the Long-Noted Downside of the Culture Wars

I finally got around yesterday to reading Charlie Savage's book excerpt in the New York Times earlier this week, "How 4 Federal Lawyers Paved the Way to Kill Osama Bin Laden." It's a fascinating story and well worth the time. Among the newsworthy items in the story are the apparent lockout of the Attorney General (despite urging from the head of the National Counterterrorism Center that the AG be briefed), the Office of Legal Counsel, and the State Department from any role in offering legal advice on the raid; the narrow compass given to any reading of obligations to accept surrender, which really was more of a clear instruction to kill Bin Laden unless he was "naked with his hands up"--in effect, according to the account, soldiers were told that if he was wearing clothes, Bin Laden should be shot and killed; and the particularly flimsy legal excuse for burying him at sea. ("The Geneva Conventions call for burying enemies slain in battle, 'if possible,' in accordance with their religion—which for Muslims means swift interment in soil, facing Mecca—and in marked graves. Still, some Islamic writings permit burial at sea during voyages. The burial memo, handled by Admiral Crawford, focused on that exception; ultimately, burial at sea is religiously acceptable if necessary, and is not a desecration, it said." An odd reading of the facts in the case of a man captured and killed in northeastern Pakistan, hundreds of miles from the Arabian Sea.) The story is, one might say, more about legal patinas than about law. Noah Feldman has a nice column about it, and there are interesting posts by Eric Posner and Jack Goldsmith. But there's not all that much more. 

After a decade and a half of debate over legal issues surrounding the waging of the war on terror, the relationship between law and the war and terror, and the effect of both on executive branch power, one would hope to see more discussion than this! "Discussion" doesn't mean criticism, condemnation, or hyperbole, although it is clear that at other times and if penned by different hands, the memos on the killing and the burial, at least, would have provoked some of all three. "Discussion" means discussion. And it is surprising--and, I think, dispiriting--just how few writers and sites that once would have been all over this story have bothered even to mention it so far.

Focusing on those progressive sites that have written often about war-on-terror issues, using this list, and using search terms like "Laden," "Bin Laden," and "Savage," I found: 1) nothing in The Nation, which did however offer a lengthy story on the 29th about how old prisons are being sold for use as "sites of social change"; 2) nothing in Mother Jones, which on Friday offered "5 Reasons You'll Love This Book About Ruth Bader Ginsburg, a.k.a. Notorious RBG"; 3) nothing on Talking Points Memo, whose banner photo and headline today announce, "John Oliver Doesn't Want Trump On His Show"; 4) nothing on Think Progress, which did find room for stories on "[chef] Anthony Bourdain's Wake Up Call to Trump on His Deportation Plan" and the Houston "Bathroom Ordinance"; 5) nothing on Daily Kos (recent "most shared" story: "New Anonymous video confirms threat to reveal 1,000 members of KKK & invites public to join"); 6) nothing on AlterNet (featuring "5 Comically Crazy Right-Wing Moments This Week"); 7) nothing on CounterPunch (whose lead stories include "J.K. Rowling and the Prisoners of Israel"; at least it's foreign "reporting"); 8) a 47-word item on Rachel Maddow's blog--huzzah! (lead item: eight paragraphs on Bernie Sanders talking about whether he believes in God on the Jimmy Kimmel show); 9) nothing on Salon (lead stories include a feature on the "brilliant 'Satanists' who drive the faith-deranged nuts," which seems redundant, and why "the war on women is not a war at all; it's a one-sided assault by sad, insecure little men"); and 10) nothing on In These Times, which currently leads with a 20-paragraph film review discussing how "The new documentary The Black Panthers, Vanguard of the Revolution is full of insights for today’s racial justice activists." Out of nostalgic affection for an old and much-diminished friend, I checked The New Republic--formerly self-identifying as liberal but widely condemned as center-right, now definitively progressive--and found nothing, although there is a fine story on "the most progressive paid leave bill in America," written by the director of a "national network of coalitions" that advocate for paid leave bills. If there was anything on Slate, I couldn't find it--can anyone find anything on Slate?--but there was no shortage of standard culture-war stories.

This was a rough search, and I'm sure there were some items squirreled away, here or elsewhere. But if that result doesn't suggest not just a paucity of coverage, but practically a news blackout, I'm not sure what does. If only out of an undue fondness for dictionaries, I have never been a big fan of Project Censored, whose actual focus is not on censorship, but on significant stories that have been "that have been overlooked, under-reported or self-censored by the country's major national news media." "Overlooked, under-reported, or self-censored" sounds about right in this case. I guess it has a new project to pursue. 

Many of these sources have in the past run plenty of stories about Bin Laden and Bin Laden's killing; obviously, given the latter, they ran many stories during the Obama administration, including critical ones. But, as I noted above, for the most part the work of these sites these days is more or less one of full-time culture-war coverage. No stone is left untured--if that stone was thrown by a former Olympic decathlete who now out-earns Croesus by appearing on reality television. Foreign coverage, or coverage of important but (apparently) less sexy legal issues in the war on terror, not so much (unless the issues involve potential threats to readers' safe access to the Internet from the beleaguered frontiers of Park Slope).

We needn't belittle so-called culture war issues to lament the lopsidedness with which they are covered and other issues neglected. Most of my work these days relates to culture war issues. That hardly means the subject is important--scholars (one hopes) work within their areas of expertise, on issues that fade in and out of public prominence and that may or may not be widely viewed as important--but it does suggest that I find them interesting and important enough to spend time on. But we might look back to the last heyday of the culture wars, in which some worried that the whole idea of the culture wars was "literally manufactured" in order to drive up votes on the right and "pre-empt intelligent discussion" of other important issues, or that, in Thomas Frank's words, "The culture war is a contest largely fought out between square corporate ideologues and hip corporate ideologues." Or, to quote someone from the other side of the divide, Paul Weyrich, "Yes, [social issues] are emotional issues, but that's better [at drawing voters] than talking about capital formation." (The quote and the first brackets are taken from Reva Siegel and Linda Greenhouse's 2011 essay about Roe v. Wade and backlash.) More recently, Andy Koppelman, long a strong advocate of same-sex marriage, has also recently argued that "American politics increasingly embodies [the] mantra: Eat the Poor," and that "[t]he American Left's focus on the culture wars was inevitable, but it has been unfortunate to the extent that it has distracted us from [other, especially economic] issues." 

I'm not sure I agree with all of those accusations entirely. The identitarian and other issues lumped generally under the rubric of "culture wars" are important, in my view, then and now. And, although it is easy and common to assume that when the other side does something, it's a deliberate and cynical ploy, clearly many leaders and foot-soldiers on the conservative side of the culture wars were sincere about foregrounding these issues--although I'm sure there were plenty of political strategists eager to deploy them for more cynical purposes, including demonizing the opposition and getting out the  vote from supporters. (Similarly, although I don't doubt that the modern Democratic Party is very sincere on these issues as well, it's also true that it deployed them in 2012 and the 2014 midterms to satisfy important constituencies, demonize the opposition and reinforce the support of individuals who were more likely to donate and to show up at the polls, and avoid talking more than necessary about foreign policy.) In any event, that the issues are important does not preclude the recognition that they may have overshadowed, indeed dwarfed, other issues that also are important, including economic but also, and crucially, foreign policy issues. 

Nor do I think the news blackout I observed above is the product of some vast left-wing conspiracy. One assumes they focus where and how they do because they are desperate, like everyone else in the media, for readers and revenue, and readers (and hence advertisers) are more interested in culture-war issues than foreign or economic policy. Indeed, although the Times ran Savage's story, it too has shown a decided preference for culture-war over foreign policy issues lately--especially in its online version, where the terror behind its hunt for market share has been all too obvious. There has always been an isolationist, self-interested streak in American culture and politics, one that is little interested in developments overseas, no matter how dire, and it seems pretty strong to me right now, on both the left and the right. In the American mind and media, a single-person shooting somewhere in this country has always been worth at least a foreign famine or epidemic or two. It is also worth noting, in the media context and especially the online media context, that the culture war is much, much less expensive to cover and much easier to opine on freely.     

Perhaps, as this article (from a conservative site, if it matters) argues, part of the reason also has to do with the possibility that "none of these [non-culture-war] developments is part of any kind of normal political debate right now." On this view, Congress is frozen, generally unlikely to act except, at most, to block things; thus, "just about everything that’s actually going to happen in national-level politics is going to be happening by executive fiat, by the president using, or attempting to use, his unilateral power," and "[w]hat doesn’t get done by executive fiat will be done by the courts." If that is so, it suggests that the focus on culture war issues and not economic or foreign policy issues has a structural cause, as well as reflecting the general American indifference to how the executive acts on foreign policy matters and, indeed, foreign policy altogether; it is not simply wholly ideological or partisan. But, of course, that structural concern is an important reason why one should care about Savage's story, regardless of whether one thinks that the patina of law was adequate in this case or that it's a damn good thing that Bin Laden was assassinated and buried at sea. On the evidence of my rough search, people, including many who have cared about such issues in the past, either don't care anymore or have given up trying to do anything about such issues--have given up even bothering to note when relevant stories arise. At the risk of speaking too vehemently, that seems quite unfortunate to me.        


Posted by Paul Horwitz on November 1, 2015 at 10:52 AM in Paul Horwitz | Permalink | Comments (0)

Saturday, October 31, 2015

New From OUP and Greenawalt: "Interpreting the Constitution"

Thanks to Oxford University Press, I received a copy this week of Kent Greenawalt's new book, Interpreting the Constitution. It looks terrific. As OUP's description of the book indicates, it is one in a series of books by Greenawalt on legal interpretation:

This third volume about legal interpretation focuses on the interpretation of a constitution, most specifically that of the United States of America. In what may be unique, it combines a generalized account of various claims and possibilities with an examination of major domains of American constitutional law. This demonstrates convincingly that the book's major themes not only can be supported by individual examples, but are undeniably in accord with the continuing practice of the United States Supreme Court over time, and cannot be dismissed as misguided.

The book's central thesis is that strategies of constitutional interpretation cannot be simple, that judges must take account of multiple factors not systematically reducible to any clear ordering. For any constitution that lasts over centuries and is hard to amend, original understanding cannot be completely determinative. To discern what that is, both how informed readers grasped a provision and what were the enactors' aims matter. Indeed, distinguishing these is usually extremely difficult, and often neither is really discernible. As time passes what modern citizens understand becomes important, diminishing the significance of original understanding. Simple versions of textualist originalism neither reflect what has taken place nor is really supportable.

The focus on specific provisions shows, among other things, the obstacles to discerning original understanding, and why the original sense of proper interpretation should itself carry importance. For applying the Bill of Rights to states, conceptions conceived when the Fourteenth Amendment was adopted should take priority over those in 1791. But practically, for courts, to interpret provisions differently for the federal and state governments would be highly unwise. The scope of various provisions, such as those regarding free speech and cruel and unusual punishment, have expanded hugely since both 1791 and 1865. And questions such as how much deference judges should accord the political branches depend greatly on what provisions and issues are involved. Even with respect to single provisions, such as the Free Speech Clause, interpretive approaches have sensibly varied, greatly depending on the more particular subjects involved. How much deference judges should accord political actors also depends critically on the kind of issue involved.

Students of the Constitution and constitutional interpretation will want to rush out and grab this book. Kent, a mentor and former teacher of mine, recently celebrated his fiftieth year of teaching and has published about seven books and many articles in the past decade, including this terrific forthcoming book on legal exemptions, especially religiously motivated ones. Wow.      

Posted by Paul Horwitz on October 31, 2015 at 03:30 PM in Paul Horwitz | Permalink | Comments (0)

Media-Bashing: Always in Season, But a Strategy of Mixed Effectiveness

This is a particularly timely week to look at media-bashing and to wonder how well it works as a strategy for institutions subjected to unfavorable press coverage. When, as we saw this week, an institution is subjected to negative, critical coverage in the (roughly speaking) conventional/mainstream press, it is quite common for the institution to react by suggesting that the press itself is the problem, not the conduct that was subjected to press scrutiny. Not without reason, of course. The coverage may indeed be inaccurate. It may be slanted, possibly for reasons of some substantive, often political, bias, and even more often because the press tends to favor particular kinds of narrative: populist narratives, such as the big institution sticking it to the little guy; scandal-oriented narratives; and narratives that focus on the negative aspects of a story rather than taking a holistic view of the balance of good and bad, costs and benefits, in the overall story. Anyone who has been the subject of a story knows the frustration not only of specific inaccuracies and a lack of basic expertise on the part of the reporter, but also of the reporter focusing on a "story" or narrative that does not fully reflect reality in all its details and complexities. To be the subject of coverage involves a painful loss of control over one's story. 

That said, criticizing the coverage rather than addressing the "issue" is a common public relations move not just for those reactive reasons, but also as a simple matter of institutional strategy. It can be effective, to varying degrees and in varied ways. 1) Where there are clear problems with the coverage, sometimes the storm of criticism of the press can lead reporters and editors to correct the inaccuracies and do a better job going forward. 2) More generally, media-bashing can get the press to back off, to be more hesitant and timid about covering the issue or institution altogether. If the criticism is harsh enough and catches on, it can make the press more pliant and more willing simply to report whatever the subject wants it to. 3) Media-bashing can change the subject of public discussion, from the institution that's being criticized to the press itself. Making the press the story will draw a strong, positive, angry reaction from fervent supporters of the institution under criticism, as well as from those who dislike the press generally. Especially where the institution that was subjected to negative press coverage would like to take the heat off itself and sweep any genuine problems under the rug, putting the heat on the media can be at least a somewhat effective strategy.

But, aside from any normative problems that people might have with such a strategy, it has its costs. Although the press-bashing strategy will, as I said, appeal to strong supporters of the institution under criticism, many others will have a very different reaction. Where they see some institution that has been the subject of negative press coverage complaining about the coverage, they will, if anything, conclude even more strongly that the negative coverage was well-deserved, that there must be both smoke and fire, and that the institution is using criticism of the press as a way of avoiding dealing with its own genuine problems. This set of reactions and conclusions might be problematic too, but they are inevitable--and history suggests that such conclusions are often justified. The problem with Watergate really was Watergate, not the nattering nabobs of negativism. And, at least sometimes, when the press focuses on a particular narrative that the institution thinks is the wrong one, it's the press that's right, not the institution. It's not unfair for, say, the chief executive of a major pharmaceutical company to say in response to a spate of critical coverage, "Why focus so exclusively on that one drug we made that killed a few children, due to poor testing on our part and an eagerness to rush the drug to market so we could realize huge profits? What about all the effective drugs we market, the huge investment we have made in careful testing procedures, and our distribution of lifesaving drugs in poor countries?" The executive may be right, on balance. Perhaps the press should have done a better job of reporting both the good and the bad. But surely many readers will conclude that, whatever the CEO may think, the negligently produced, greed-motivated drug that killed a bunch of children is the real story.

In sum, attacking the press, instead of focusing on the problem that was the subject of negative press coverage, can be a sound short-term strategy. It can "redirect anger away" from the subject of the story and onto the press. Given the press's imperfections, inaccuracies, and reliance on particular narratives, this criticism is rarely without any justification. But many people will react to the media-bashing by concluding that there must have been something to the critical coverage after all. They will conclude that the criticism of the press is a "cynical ploy to rev up the [criticized institution's] base and to give themselves cover." They will end up distrusting the institution even more than they did before the negative coverage began. And, if the institution really does suffer from a substantive problem, the media-bashing will distract it from dealing with the problem, and instead convince it that instead of reform, all it needs is better PR.

All of this is pretty well-known, of course, and media-bashing is a "time-honored and sometimes well-timed tradition," even if it is often short-sighted and, in the long run, unwise. But this was a good week to remember all these lessons. I will leave it to readers to decide whether all this was brought to mind for me this week by the GOP reaction to the candidates' debate on CNBC, or to the bevy of law professors and deans who took to the webs this week to deplore the New York Times's editorial criticizing law schools* and argue that the legal academy should devote more of its resources to criticizing the press and demanding more positive coverage, or both.  

*I have only read about the editorial; I have not read the editorial itself. My general rule of thumb is that there is rarely any good reason to pay attention to newspaper editorials at all, and I am surprised when anyone does. It sounds as if the editorial was poor, just as it sounds as if CNBC really did do a so-so job at the candidates' debate. As with GOP criticism of CNBC, however, so with the lawprof reaction to the editorial and to press coverage of law schools more generally: the possibility that the press did a poor job does not tell us whether press-bashing is a useful and/or sincere strategy. Nor does it tell us whether there is nothing, or something, to the press's critical coverage. 


Posted by Paul Horwitz on October 31, 2015 at 03:09 PM in Paul Horwitz | Permalink | Comments (0)

Monday, October 26, 2015

Methodological Case Prerequisites and the (Mild, Ironic, but Real) Reproduction of Hierarchy

Michael Dorf and Larry Solum have a very interesting and mutually respectful dialogue on constitutional interpretive methodology, here (Dorf), here (Solum), here (Dorf), and here (Solum). Key to the discussion is a prerequisite offered by Dorf and labeled by Solum as a species of "Canonical Cases" objection to originalism. In Dorf's most recent words:

[T]here is something wrong with an argument that is sometimes offered to rescue those brands of originalism that produce the "wrong" results in sacrosanct cases like Brown v. Board. The argument asserts that this is not a worry because originalism is compatible with stare decisis, which preserves Brown. As I explained, that argument misconceives the problem, which is that the rightness of Brown and perhaps a few other cases are settled intuitions. It is not sufficient that an originalist judge would not overturn Brown. Any acceptable approach to constitutional interpretation (or construction) must say that Brown was rightly decided.

This reminds me of a classic line that can be found in various constitutional law articles (a good overview is provided in Laura Kalman's great book The Strange Career of Legal Liberalism. The line runs roughly as follows, in the words of one of my articles: "Admission to polite legal circles requires one to avow that Brown was wholly correct and Lochner terribly wrong." It's been around for some time but is nicely presented, quoting Cass Sunstein, in Balkin and Levinson's fun article on The Canons of Constitutional Law

A third reason for increasing interest in the composition of the constitutional canon in particular has to do with the perceived threat to the beloved precedents of the beloved Warren Court . . . . For example, Cass Sunstein, a well-known liberal constitutional theorist, has insisted that “an approach to constitutional interpretation is unacceptable if it entails the incorrectness of Brown v. Board of Education.” This is more than a claim that Brown must be taught to law students . . . . Rather, Sunstein is arguing that Brown is normatively canonical. One can no more criticize it than one can suggest that Mozart is a wildly overrated composer of music for eighteenth-century dinner parties. One establishes oneself as a cultured person by affirming Mozart's genius; one establishes oneself as a properly acculturated lawyer by affirming Brown's correctness.

I suppose it bears saying that I approve of the decision in Brown. And I can see some sense in an approach that treats canonical cases as a prerequisite. But I frankly worry about using the canonical case approach as a prerequisite in discussions of constitutional methodology, or of much else--even when the canonical case is the sainted Brown. Partly it is that I worry about starting with the canonical approach. Substantially, I wonder whether one should talk about it being necessary for a judge in particular to say, in reasoned-elaboration fashion, that Brown was "rightly decided." I could more easily sign on to a prerequisite that said that constitutional methodology, or even the general legitimacy of the Constitution, must allow or even ensure that the outcome in Brown happens, but I'm less sure that this means it must happen through judicial review. Someone must interpret the Constitution to allow for Brown, but it might be some other official or it might be the people themselves, and the role of the Constitution itself might or might not be fairly minimal and post-hoc.

I also worry about those possible "few other cases." Brown alone, or Brown and Lochner? Brown and Lochner only, or those two plus Roe and/or Casey? Just them, or them plus most of the Warren Court's canonical cases? A case here and a case there, and you've got some real money, so to speak. These kinds of approaches end up doing a lot of rhetorical heavy lifting that I doubt helps us think afresh, and that really try to stall or freeze the game at a particular point in time or in a particular way. Although individual treatments vary in their skill and persuasiveness, I think this kind of rhetorical/political game figures a lot in current discussions of Lochner and various so-called "new Lochners" or "new Lochnerism." The phrase purports to be descriptive but is equally (or more?) prescriptive and preclusive, using social embarrassment as a lever.    

In a broader sense, though, I worry that this kind of thing, which I think still accurately characterizes the general sentiment of the gatekeepers of the legal academy, is less about constitutional methodology and more about the gatekeeping itself. A substantial part of my project in teaching constitutional law to students is to teach them the kinds of methods and arguments that won't get them laughed out of constitutional courts. Learning the modalities of constitutional argumentation is not much of a barrier to presenting all kinds of positions and views or pursuing all kinds of political projects, but it does require them to be translated into the kinds of moves that courts will accept as legitimate legal argumentation. The students learn how to get in the game and stay there. But while I'm happy to teach them something about what polite society demands of them, I don't want to preclude their rejection of polite society, or their individual interests in pushing the boundaries of what constitutes a polite society.

Although overwhelmingly politically liberal, the legal academy is also highly conservative and anti-radical. Indeed, while I find a lot to appreciate in the project of blogs like the Heterodox Academy, I worry that these discussions are too much about making sure that the academy makes enough room for doctrinaire conservatives, or doctrinaire conservatives and doctrinaire libertarians, alongside doctrinaire liberals, and not enough about really widening the scope of our discussions. In the legal academy in particular, I worry that we don't make enough room for, let alone positively encourage, people whose views or approaches or priors are more genuinely radical. I wonder what conversations and possibilities we miss as a result.

On those occasions when radicals slip through, we get some very interesting discussions. They can even include second thoughts about Brown itself, viz. Derrick Bell's thought-provoking "dissent" in Brown. To use Robert Cover's phrase, they can be interestingly and valuably jurisgenerative and not jurispathic. Polite society might fear those imagined legal worlds, but in a highly conservative academic field within a highly conservative profession, polite society will still get plenty of innings, and might occasionally end up learning from the radicals or altering its own views. Moreover, starting with this conservative bent can blind us to the degree to which certain debates about fundamental values are necessarily going to recur and, in new ways and contexts, become new sites of contestation (sorry) about those values. Those contests are social and political, not doctrinal, and legal academics (or even, to a lesser extent, judges) cannot really, or indefinitely, erect doctrine as a barrier to that kind of contestation.

Consider the debate over what was "off the wall" or "on the wall" in the first major round of Affordable Care Act litigation. It may be that the legal academy's conservatism, and its investment of its energy in maintaining the barriers of "polite society," led it to a massive failure to predict the viability of this litigation and some of the ideas presented there. More likely, I think, is that what was going on, when various legal academics treated it as self-evident that some line of argument would be rejected as "off the wall," was rhetorical, political, and performative--an effort to ensure, by declaring implicitly, that certain ideas were unacceptable. Saying "Decent people eat with forks" is not just a descriptive statement: it's performative as well, a way of enforcing social norms--against, say, people who eat (perfectly politely) with chopsticks, simply by declaring those norms with assurance and shaming the norm-violator. The same phenomenon is going on in law and religion right now, with such (silly) rhetorical moves as the placement of "'religious liberty'" in scare-quotes as a way of declaring that certain ideas about what "religious liberty" means are simply not accepted by decent people.  

We can and should recognize the many ways in which the legal academy presents, reinforces, and reproduces hierarchy. I tend to think we should resist it, but at a minimum we can try to spot and acknowledge it, and thus reveal to ourselves the ways in which we enact and enforce our own fundamental conservatism. Whatever we think of those cases, let alone their outcomes, we should see the standard "Brown good, Lochner bad" truism as one of those ways. Mild in itself, it bespeaks a larger conservatism about ideas and priors. It is also routinely, easily, and silently extended to a wider range of "polite" views and norms and an effort to reject contestation, even when the contestation is real, unavoidable, and rages outside the university gates. Especially as academics, we should welcome more than we do what Balkin and Levinson call the "perpetual state of intellectual tension" that comes from rejecting such canon-centered approaches. We should acknowledge that contestation--not about racial equality or the evils of segregation, surely, although Bell and others make clear that more can be said about this--about fundamental values is always ongoing; it cannot be resisted by stating formulae, and it should not be resisted by subtle gatekeeping, or by attempting to keep constitutional radicals outside the gates. All this is, of course, pretty far afield from Solum and Dorf's core discussion. It's also probably impolitic for me to say any of this, since I have the usual personal ambitions within our polite academic society. So be it.        


Posted by Paul Horwitz on October 26, 2015 at 09:02 AM in Paul Horwitz | Permalink | Comments (0)

Saturday, October 24, 2015

"Thank You for That [Awful] Question"

I am mostly out of the business of giving blog advice for teaching job hopefuls, largely because I've repeated my advice too many times and it's all archived. It can be summarized easily enough: (a) Everyone should read Martha Nussbaum's "Cooking for a Job" article, hopefully with concern rather than as a "how-to"; (b) although it makes sense to direct advice at hiring candidates, hiring faculties are both the least-cost-avoiders and the ones with a greater moral obligation to do it right, so (a) applies especially to them. But I did want to comment on something said in response to Rhett's post. One of the virtues of both tenure and a long stint on a blog is that you can get away with adding a little sour to the sweet, like putting a lemon wedge on a glass of iced tea. I'm not sure this counts as advice, exactly, especially because the faculty members most in need of hearing it are perhaps the least likely to take it. Call it, rather, an observation about what has in my experience become a pretty strong norm at most schools not just at job-talks but in workshops and talks of all sorts, and one I think we need to ease back on.

On Rhett's post, a commenter identifying as "AnonHiringChair" writes:

I would also add a reminder that, during questioning, you always make the person asking the question feel good about herself. I've seen many times when a member of my faculty asks a less-than-great question and the candidate's response makes clear to everyone in the room that it was a less-than-great question. Fast forward to voting and the faculty member in question frequently finds another reason to argue against the candidate. Bottom line: When you make the person asking the question feel bad about herself, it will redound to your detriment (and conversely, when you can make the person asking the question feel good about herself, it will redound to your benefit).

Of course this is perfectly sensible advice for job candidates, and my experience over the last few years suggests that it's been drummed into many candidates, especially those coming out of fellowships. Like many such norms, however, it is not used just by job candidates; many speakers have a frequent habit of identifying many, most, or even all questions they receive as "good" questions.

I am certainly not complaining about civility at job-talks and workshops. But like most such sensible advice, I wonder if this one hasn't been applied too much and too mechanically. I have nothing against "bad" or dumb questions as such, as should be clear from my own long record of dumb questions on such occasions. Self-serving (and self-citing), irrelevant, or pointless questions, yes; we should avoid those. But, as with journalists,  it's more important for academic questioners to engage and clarify than to worry about looking smart. Still, since we all know that there is such a thing as a bad or dumb question, and that they make frequent appearances at job-talks and workshops, I wonder whether there aren't better ways to be civil and respectful than to respond promiscuously or automatically with "That's a great question" every time a question is asked. When I ask or am asked a dumb question, I am perfectly happy to give and receive the words "Thank you for the question." In particular, when I ask a dumb question, I think it's not unreasonable to expect courtesy in return, but I definitely don't expect (or want, really) flattery. "That's a good question" risks becoming both excess verbiage and a mere tic. In a sense it may reveal a problem with a good deal of both academic and civic discourse: not enough plain civility, and too much flattery and mutual back-patting, as if people have forgotten that it is quite possible to be polite in a clear and economical fashion without also concerning oneself with the feelings and ego of one's interlocutor. Our society worries too much about feelings and not enough about common courtesy. 

There is, of course, an added concern about being too quick to call something a good question. As complaint department staff have long known, it is possible for a polite statement, properly delivered, to mean its exact opposite. The more glaringly dumb or irrelevant a question is, the more likely it is that the statement "That's a good question" will be heard by everyone in the room, with the possible exception of the questioner, as conveying the statement "What in God's name were you thinking when you asked that?" This is another virtue of simple but non-substantive civility: "Thank you" need not be taken as rendering a judgment on the question, and thus mostly avoids the problem of irony. (I actually think the legal academy needs much more irony, but that's a subject for another time.) 

And one more problem: I have found, and not infrequently, that "That's a good question" is sometimes followed by an answer that avoids or evades the question rather than make a good-faith effort to answer it. One quite understands the impulse when the question is genuinely irrelevant, although there are more or less effective ways to pivot from such a question. But occasionally the question actually is good, and when a questioner has both identified a question as "good," however perfunctorily, and then not answered it, the exchange is usually underlined for me as especially dissatisfying. That's one more reason that "Thank you" is such a useful phrase. Indeed, it should be possible to be civil, but also to civilly explain how and why a particular question is, in fact, off-base or irrelevant or outside the scope or what have you, or conversely to acknowledge in a polite and responsive rather than defensive fashion that the question is good and requires more thought. 

None of this negates the general usefulness of the commenter's advice, especially since, as I observed up front, those faculty who most expect flattery from a speaker are least likely to be satisfied with anything less. But these are the kinds of general norms that all of us who sit through or deliver endless talks should think about at least a little, and like all such norms they require some individual pushes in the right direction. In particular, I don't mean to place the burden on job-talkers; I notice it when a job-talker is too free with flattery, but I don't hold it against him or her.

But there are others who perhaps need the advice to emphasize and expect civility rather than flattery, not to evade questions labeled as "good," and, as a general rule, to avoid calling bad questions good. Habits of this sort, first adopted when one is a supplicant, end up becoming part of one's repertoire even when one is "just" a workshop speaker, with no job riding on the outcome of the talk, and end up being assumed or expected by faculty audiences as well. The legal academy and perhaps most academic fields may well need more civility, but not more flattery. Ideally, workshop speakers who are not job supplicants, and who indeed are already tenured and rooted somewhere, could certainly afford to ease up on this tic. Faculty audiences should train themselves not to expect or encourage it. And advisors to job candidates, especially those who send large numbers of fellows and such out into the world, should certainly carefully consider the costs and benefits of the advice they give, and remind their charges that this advice, like all advice, should be used sparingly and with care rather than heaped upon every question, no matter how bad it actually and obviously is.          


Posted by Paul Horwitz on October 24, 2015 at 11:45 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, October 21, 2015

An Important New Fact, or a Report on the Coal Industry From the Newcastle Boosters League?

I admire what I have read of the work of Jean Cohen, a Columbia political scientist--particularly her Regulating Intimacy: A New Legal Paradigm, which discusses and uses "reflexive law" as a means, in the words of the book's jacket copy, to approach debates over "the regulation of intimate relationships" in a way that is "free from the liberal and welfarist paradigms that usually structure our legal thought. This new legal paradigm finally allows us to dissolve the tensions among autonomy, equality, and community that have beset us." It is always useful to escape from the standard prisons of our thought and to think perpendicular to and across the usual and tedious left-right divisions that channel and stymie so much intellectual work in the United States.

I am thus struck by the abstracts to two new papers by Prof. Cohen. I look forward to reading the papers, which are on subjects of great interest to me. But I am surprised by what she chooses to foreground in those abstracts. Here is one:

This article focuses on an expansive conception of religious freedom propagated by a vocal group of American legal scholars – jurisdictional pluralists – often working with well-funded conservative foundations and influencing accommodation decisions throughout the US. I show that the proliferation of ‘accommodation’ claims in the name of church autonomy and religious conscience entailing exemption from civil regulation and anti-discrimination laws required by justice have a deep structure that has little to do with fairness or inclusion or liberal pluralism. Instead they are tantamount to sovereignty claims, involving powers and immunities for the religious, implicitly referring to another, higher law and sovereign than the constitution or the people. The twenty-first century version of older pluralist ‘freedom of religion’ discourses also rejects the comprehensive jurisdiction and scope of public, civil law – this time challenging the ‘monistic sovereignty’ of the democratic constitutional state. I argue that the jurisdictional pluralist approach to religious freedom challenges liberal democratic constitutionalism at its core and should be resisted wherever it arises. 

I think the subject is important and worthwhile. But I am struck by the description of American legal scholars "often working with well-funded conservative foundations and influencing accommodation decisions throughout the US." The other abstract repeats this language almost verbatim, adding the additional description "well-funded conservative foundations like the Beckett Fund for Religious Liberty." Evidently this information was important enough both to place in the abstract and to repeat in both papers.

On the whole, I don't mind and rather favor descriptions of the ways in which legal academics often work hand in glove with well-funded advocacy and/or ideologically charged organizations. Many legal academics, in my view, are not "academic" enough; although I'm something of an institutional pluralist about this and believe that there is room for several models of what the academic or legal academic role involves, including a more normative, goal-oriented, advocacy-oriented model, my first allegiance is to the traditional, Fishian model of "academicizing" the issues one addresses and remaining relatively indifferent to whether one is aiding and comforting the "left" or the "right" in its current struggles. 

And there is one respect in which the information in Cohen's abstract might be taken as informative. Neither pluralism, nor jurisdictional pluralism, nor religious accommodationism, are inherently politically conservative activities. Rather, positions of this sort, or contrary positions, tend to tack back and forth across "sides," depending on the issues and context of the day, but sometimes emerge as issues and strategies dear to one side, and take root long enough to affect and alter the surrounding views of that side for a time. So it can be interesting, descriptively and for purposes of sociology and intellectual history, to note when that has happened. Similarly, it can be interesting to note the ways in which strong religious accommodationism has shifted from a mainstream liberal position--the Court's decision in Employment Division v. Smith was, at the time, labeled the most "illiberal" decision of its Term in the Harvard Law Review--to one that is viewed negatively, sometimes outright critically, and even as requiring  the strategic use of ironic single quotes to propagandize the view that it has nothing to do with "'religious liberty.'" In recent times, one can witness both that shift, and the way in which it propagates across and between well-heeled liberal advocacy groups and their intellectual water-carriers, with effects on the distribution of funds, the position of groups, and the center of gravity of liberal legal scholarship in that field. 

Still, to foreground the (too-frequent?) hand-in-glove relationship between issue-based or ideological advocacy groups and legal scholars seems like something everyone knows about all too well. Is it worth that placement in an abstract, in a way that suggests that the information is unknown or novel and important?  Does doing so, and in the language used by Cohen, not carry with it a kind of unwarranted suggestiveness, as if one is revealing something secret and shameful? And is the description and its sotto-voce suggestiveness only partly accurate, thus rendering some of that suggestiveness positively misleading? I have advocated some measure of what Cohen calls jurisdictional pluralism in this area, but I have not worked with the Becket Fund (I interviewed there once long ago, when liberals were allowed to be seen in its presence, but chose not to work there) and do not broadly share the political or substantive goals of "well-funded conservative foundations." Conversely, some individuals whose liberal credentials are at least as good as Cohen's have also worked with the Becket Fund, even if some have taken to misdescribing the political and substantive views of those individuals.

And to do so in what comes off as a one-sided fashion is particularly misleading and unfortunate, lending the air that one group is engaged in some kind of covert and intellectually suborning conspiracy while the other simply involves a happy and fortuitous coherence of positions. Moreover, it is not a little ironic coming from a scholar at Columbia--my alma mater, and one I am perfectly proud to be associated with. The Becket Fund's 2012 financial snapshot shows contributions just under $5 million and assets under $2 million. In the following year, the Center for Reproductive Rights showed contributions of over $17 million and assets of almost $36.5 million. Among its good works is the joint Center for Reproductive Rights-Columbia Law School Fellowship, associated with Columbia's Center for Gender & Sexuality Law. This is not a condemnation. I presented my paper on Hobby Lobby at Columbia and faced many good and fair questions from the faculty there, including several fellows and/or faculty associated with the center; I was grateful and enjoyed meeting everyone. Its fellows do good work there and have gone on to do more good work. But it makes the unidirectional nature of the language in Cohen's abstract all the more odd.

Writing descriptively about alliances between advocacy groups and legal academics is not a bad thing. Neither is trying to tease out its implications for intellectual work by those academics and, perhaps, worrying about, or at least debating, whether legal academics are rather more affected by the "legal" part of their job description than the "academic" part. The actual work produced can, of course, still be judged by its own merit, and one hopes that at least some of that work will cut in interesting ways across the same old tired divides. But surely everyone recognizes that in the nature of things, given the generally liberal political priors of most legal academics, there will be countless examples on the liberal-left side of the same phenomena put forward by Cohen, with the same general implication of coordination and/or a potential influencing or distorting effect on independent legal scholarship. Maybe Cohen did not foreground those alliances in her abstract because everyone already acknowledges their existence, importance, and strategic and intellectual effect, so much so as to take this all for granted. But the one-sided focus still seems odd to me.    



Posted by Paul Horwitz on October 21, 2015 at 10:14 AM in Paul Horwitz | Permalink | Comments (0)

Monday, October 12, 2015


New from Cambridge University Press and newly arrived on my desk is Religion and the State in American Law, by the late Boris Bittker, Scott Idleman, and Frank Ravitch. (Individual chapters were also contributed by Jennifer Ann Drobac and Jill Wesley, Angela Carmella, and Cynthia Lee Starnes.) Here is the CUP page for the book. I have unfortunately been unable to post much for the past few months, but it's well worth making the extra effort to bring attention to this book. It seeks to provide, as the book jacket says, "a comprehensive and up-to-date overview of religion and government in the United States, from historical origins to modern laws and rulings." The topics are broad, extending well past the standard narrow treatment of cases dominated by the Religion Clauses to include contracts, torts, family law, and a number of other areas; and the coverage is similarly catholic, ranging deep into the lower court caselaw. It is truly an impressive book and a fascinating and useful treatise. I'm not sure what the authors' or the press's update plans are, but I hope they will keep the enterprise going at least a little bit. It is also remarkably well-priced at some $37 on Amazon and $45 list--highly unusual for a book of this kind.

If I were to recommend a very short list of essential books on religion and American law, I would first recommend my books and then, after an awkward silence, more honestly and accurately would recommend this book, along with Kent Greenawalt's two-volume Religion and the Constitution and perhaps this book on religious organizations in the United States. It looks great and I congratulate the authors on their achievement.

Posted by Paul Horwitz on October 12, 2015 at 04:40 PM in Paul Horwitz | Permalink | Comments (0)