As scholar, Elena Kagan worked in two main fields, First Amendment law and (more or less) administrative law. Since the first of those fields is one in which I also work, I decided to reread those articles, and — since some people have raised questions about Kagan’s qualities as a scholar — look more broadly at her scholarship.
1. Let me begin with some objective factors, rather than my own evaluation of Kagan’s scholarship. As this excellent SCOTUSblog post chronicles, Kagan was a working scholar from 1991-95, and then 1999-2003. Between those years, she worked in the Clinton Administration; after those years, she was dean at Harvard Law School, a position that these days leaves its holder with very little time to do serious scholarship. In those eight years, she wrote or cowrote four major articles (linked to here), Presidential Administration (Harv. L. Rev. 2001), Chevron’s Nondelegation Doctrine (Harv. L. Rev. 2001, cowritten with David Barron), Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine (U. Chi. L. Rev. 1996), The Changing Faces of First Amendment Neutrality: R.A.V. v. St. Paul, Rust v. Sullivan, and the Problem of Content-Based Underinclusion (Sup. Ct. Rev. 1993). She also wrote three shorter but still substantial pieces, When a Speech Code Is a Speech Code: The Stanford Policy and the Theory of Incidental Restraints (U.C. Davis. L. Rev. 1996), Confirmation Messes, Old and New (U. Chi. L. Rev. 1995), and Regulation of Hate Speech and Pornography After R.A.V. (U. Chi. L. Rev. 1993).
Quantitatively, this is quite good output for eight years as a working scholar. It looks a lot smaller if one looks at her career from 1991 to 2009, when she was appointed Solicitor General — but for the reasons I mentioned above, that’s not the right way to look at it.
Moreover, two of her articles have been judged to be quite important by her colleagues. Presidential Administration has been cited 305 times in law journal articles (according to a search of Westlaw’s JLR database) — an extraordinarily high number of citations for any article, especially one that is less than 10 years old. In fact, a HeinOnline list of all articles with more than 100 citations, run in August 2009, reports that her article was at the time the 6th most-cited law review article of all the articles published since 2000. Many legal scholars, even ones working in the relatively high-citation fields of constitutional law and administrative law, have never and will never write an article that is so much cited.
Chevron’s Nondelegation Doctrine has been cited 75 times, a very high number for an article’s first 10 years; I suspect that only a tiny fraction of one percent of all law review articles are cited at such a pace. Private Speech, Public Purpose has been cited 129 times, likewise a very high number. The Changing Faces of First Amendment Neutrality has been cited only 36 times, but that probably stems in large part from the fact that Supreme Court Review articles from that era are not on Westlaw or Lexis (ridiculous, especially for a faculty-edited journal with the Supreme Court Review‘s excellent reputation, and likely stemming from a short-sighted non-licensing decision by the University of Chicago Press).
And while some articles might be heavily cited because they fit with academic ideological fashions, I don’t think these would qualify. As I understand it, Kagan’s administrative law work is consistent with a strong executive model, and the modern intellectual fashion (especially during the Bush era) has been to criticize this model (though the balance of the legal academy on this has not been as lopsided as on some other issues). Likewise, Kagan’s First Amendment scholarship, especially Private Speech, Public Purpose, doesn’t fit with any current fashion among First Amendment scholars; it is not, for instance, distinctively left-wing in its views (the direction in which the constitutional law academy famously trends these days). That it has been heavily cited suggests a substantive judgment about its technical merit and originality, and not just ideological sympathy.
So Kagan, it seems to me, is a successful scholar whose interests have extended beyond scholarship, to government service and to educational institution-building. As a result, she hasn’t written as much as she would have had she only been interested in scholarship (though I suspect that her time in the Clinton Administration helped her produce her administrative law articles). But that reflects the breadth of her interests, and not any intellectual limitations.
2. On then to my own evaluation of the First Amendment articles: I think they’re excellent. I disagree with them in significant ways (this article, for instance, reaches results that differ quite a bit from those suggested by Kagan’s Private Speech, Public Purpose article, see, e.g., PDF pp. 8-9). But I like them a lot.
The articles attack difficult and important problems (Private Speech, Public Purpose, for instance, tries to come up with a broad theory to explain much of free speech law). They seriously but calmly criticize the arguments on both sides, and give both sides credit where credit is due. For instance, I particularly liked Kagan’s treatment of both the Scalia R.A.V. v. City of St. Paul majority and the Stevens concurrence, in her Changing Faces of First Amendment Neutrality article.
As importantly, the articles go behind glib generalizations and formalistic distinctions and deal with the actual reality on the ground, such as the actual likely effects of speech restrictions, and of First Amendment doctrine. (I’m a big believer in formalism in the sense of a preference for rules over standards; but I share many people’s disapproval of formalistic arguments in the fashioning of rules, when those arguments ignore real-world distinctions and effects, and obscure the important policy questions rather than revealing them.) This is legal scholarship as it should be, and as it too rarely is.
3. But how would Elena Kagan likely actually vote in First Amendment cases? It’s hard to tell for sure.
This is partly because her work is in large measure structural and theoretical, rather than focusing on specific constitutional controversies. And it is partly because even her articles that focus on such specific controversies, such as over so-called “hate speech” and pornography, are often more analytical (here’s how we should understand the law, and here are the pluses and minuses of various approaches) than prescriptive (here’s the rule courts should adopt). That’s a fine trait in an article — the analytical components are generally more useful to readers than the prescriptive components. But it does make it hard to predict just how the author would decide cases as a Supreme Court Justice.
Still, here’s my rough sense of the matter:
a. Kagan’s First Amendment work suggests a general acceptance of current free speech law, and an attempt to better understand it and make it more internally consistent rather than to radically change it. I can’t tell for sure whether this flows from a judgment about what’s more useful scholarship, from a largely precedent-respecting temperament, or from agreement with the underlying free speech caselaw. But my guess is that it at least in part reflects a general comfort with the current precedents, and a lack of desire to shift them much.
b. On so-called “hate speech” and pornography, the two First Amendment topics on which Kagan has most explicitly written, I likewise see little interest in moving the law much. Kagan seems to find much that’s sensible about R.A.V. v. City of St. Paul — which held that even within the unprotected category of “fighting words,” the government may not single out words based on their racially, religiously, etc. themed message. And to the extent she’s skeptical about that decision, it sounds like most that she would tolerate is a restriction within this unprotected category of fighting words: I don’t think she would endorse restrictions on allegedly racist or otherwise bigoted speech outside this traditionally unprotected category.
Likewise, while she might tolerate some restrictions on pornography — probably limited to pornography that depicts violent sex — it seems likely that she won’t go much beyond (and likely not at all beyond) restrictions on pornography that already fits within the “obscenity” exception. I am no fan of the obscenity exception, chiefly because of its nearly lawless vagueness. But while it sounds like Kagan probably wouldn’t vote to get rid of the exception, or even go so far as Stevens to argue that obscenity could only be punished through civil enforcement and not the criminal law, it also sounds like Kagan probably wouldn’t materially expand the exception, or create similar exceptions to join it.
c. What about the matters on which Justices on the left wing of the Court have generally taken a relatively speech-restrictive view — campaign finance speech restrictions, and restrictions on religious speech in generally available government subsidy programs (see, e.g., Rosenberger v. University of Virginia)? (I do not include within this category so-called “hate speech” or pornography, even violent and allegedly misogynistic pornography, since the Justices on the left wing of the Court have not generally taken a relatively speech-restrictive view as to these.)
Here, Kagan’s writings are relatively opaque. Some passages in her Private Speech, Public Purpose article suggests that she’s at least sympathetic with Buckley v. Valeo‘s holding that restrictions on individual expenditures related to campaigns are unconstitutional. If that’s so, then she would probably take a more speech-protective view than Justices Stevens, Ginsburg, and probably Breyer (we don’t know much about Justice Sotomayor’s views on the question). But it’s hard to be even close to certain of this.
My guess is that the likeliest bet would be to say that a Justice Kagan would be roughly where Justice Ginsburg is — generally pretty speech-protective, but probably with some exceptions in those areas where the liberal Justices on the Court have taken a more speech-restrictive view, chiefly expensive speech related to campaigns and religious speech in generally available government subsidies. Not perfect from my perspective, but not bad, and no worse than Justice Stevens, with whom Justice Ginsburg largely agreed on such matters.
cityduck says:
Reading the reactions to Kagan on this site, she should sail through her nomination.
May 10, 2010, 4:01 pmAnderson says:
This comment over at Crooked Timber caught my eye:
I would be curious what Prof. Volokh, as a First Amendment expert, thinks of that criticism by the Stevens Court.
I realize that Kagan was arguing “for a client,” but still, one is not obliged to make any argument whatsoever.
May 10, 2010, 4:15 pmjames says:
Even the freepers aren’t manning the barricades:
May 10, 2010, 4:16 pmMax Power says:
Yet more evidence that the Elena Kagan = Harriet Miers meme is laughably absurd.
May 10, 2010, 4:17 pmWormwood says:
Anderson,
While “startling” and “dangerous,” it’s not at all unprecedented. Is that not what already occurs under the current exceptions, such as obscenity and fighting words? I would argue that that is the case.
May 10, 2010, 4:24 pmHerb Spencer says:
Enough, already, with her record as a scholar! Let’s see some of her work product from, and opinions from those who interacted with her during, her two year sinecure at Williams & Connolly. Scalia’s famous quote notwithstanding, admin law is not the most backbreaking sort of litigation.
May 10, 2010, 4:28 pmTweets that mention Elena Kagan as Scholar: (Eugene Volokh) As scholar, Elena Kagan worked in two main fields… -- Topsy.com says:
[...] This post was mentioned on Twitter by The Volokh Conspirac. The Volokh Conspirac said: Elena Kagan as Scholar: (Eugene Volokh) As scholar, Elena Kagan worked in two main fields… http://goo.gl/fb/T8UUc [...]
May 10, 2010, 4:29 pmBeldar says:
Prof. Volokh, you’re a mensch and a gentleman, and you’re certainly among my favorite blogging law professors, but this post does confirm that you are indeed a thorough-going academic. You’re going to have a hard time convincing people outside of the world of law professors that four articles in eight years is “quite good output” for a working scholar. Even as a former law review editor, I’m underwhelmed by that total.
Just for purposes of comparison, could you give us an idea of how many substantive law review articles YOU have published in a comparable period of time? How many from Cass Sunstein?
May 10, 2010, 4:31 pmMark Field says:
Sure Lou Gehrig was a fine player, but how many home runs did he hit compared to Babe Ruth?
May 10, 2010, 4:42 pmCalderon says:
Anderson said:
I would be curious what Prof. Volokh, as a First Amendment expert, thinks of that criticism by the Stevens Court.
I realize that Kagan was arguing “for a client,” but still, one is not obliged to make any argument whatsoever.
I’d be curious as to what Prof. Volokh says too. That said, when you read her statement in context, it’s about the only argument she could make to support the law. In that section of her brief, she talks about how S Ct precedents weights speech category by category, and had found that fighting words, obscenity, child porn, etc. were all categories where whatever negligible benefit they had was clearly outweighed by their harm.
The statute in Stevens required her to carve out a new exception to the 1A for depictions of animal cruelty, and I don’t know what other argument she could have used to do that. Analogies to obscenity or child porn are rather strained. I doubt that originalism sheds any light on the question, and 1A jurisprudence does not seem very originalist in any case. Within those restrictions, she had about the best argument she could for claiming that a new category of speech should be excepted from the 1A.
(I should be clear that I don’t agree with arguments in the brief, but like most attorneys I’m sympathetic to lawyers who have to make arguments on behalf of clients they might not necessarily agree with)
May 10, 2010, 4:44 pmCalderon says:
How many from Cass Sunstein?
I’m guessing over an eight year period Sunstein wrote 28 substantive articles and authored or co-authored 6 books. But he is the most prolific legal scholar ever, so …
To be less snarky, though, 4 articles in 8 years does seem kind of low. I’d guess that most professors at leading universities produce 1 substantive article a year.
May 10, 2010, 4:47 pmwolfefan says:
Hi –
Isn’t it seven articles in eight years? Or do only “substantive” articles count? Also, how many articles does a typical prof produce in year 1 at a new school? IANAL, so these are genuine questions…
May 10, 2010, 4:53 pmSecond history says:
They are more interested in her appearance and perceived sexuality.
May 10, 2010, 4:54 pmSk says:
Once again, my immediate reaction was the same as several others. 4 law review articles in 8 years is quite good output for a legal professor? For a law professor, who earned tenure at Chicago and Harvard?
Compared to mediocre humanities/social sciences departments, that is quite low (hell, compared to sub-par humanities and social sciences deparments, this is quite low). Since I am not a law professor, I have to defer to law professors’ judgement. So, I have to assume EV is right. It really surprises, me, though.
sk
May 10, 2010, 5:06 pmCJColucci says:
I’d guess that most professors at leading universities produce 1 substantive article a year.
I’d guess not.
May 10, 2010, 5:07 pmCrazyTrain says:
I am pretty sure he has said that he agrees with it (agrees that the criticism is well-founded that is). But I can’t find his reaction to the case in the archives — though I swear I remember him writing about it. (Also, I think you mean “Roberts Court.”)
May 10, 2010, 5:13 pmAnderson says:
Re: quantity, bear in mind also the amount of time Kagan put into preparing her courses. Someone who hasn’t been teaching the same classes for 10 years may have more to do in that regard.
Also, some profs put very little into teaching in order to focus on scholarship. Kagan may not’ve been one of those.
(I’ve been rather the Kagan booster today, which is not quite how I feel about her, but the pushback has been quite negative and, as in this example, a bit over the top.)
May 10, 2010, 5:16 pmAnderson says:
Thanks, CT, but note I had “Stevens” in italics, which may not come through on your browser; that was the case being discussed.
May 10, 2010, 5:19 pmDavid M. Nieporent says:
And my reaction was “How does four plus three equal four?”
Heh. Yeah, Sunstein probably wrote four articles before breakfast today, before he started his day job.
May 10, 2010, 5:28 pmUrso says:
It’s interesting that she gets cited often in law journals. But is it relevant? So she gets lots of echoes in the echo chamber. Being Dean of Harvard University can’t help but burnish your standing among intellectuals.
But has she been cited often by courts? Isn’t it a better reflection on her scholarship that her ideas have been adopted in the more practical end of the legal community? (or haven’t, as the case may be?)
May 10, 2010, 5:36 pmJimbob says:
Well, their concerns are somewhat understandable.
May 10, 2010, 5:42 pmloki13 says:
Here’s my anecdotal experience from what I remember, knowing professors and working as an RA (for non-law types, that a research assistant to professors):
The superstar publishing professor averaged two publications a year.
I remember most shooting for publication a year.
Some had very few (had not published in several years).
There was a great deal of variance, as there were other commitments- some authored casebooks, treatises, and then there were issues with counting symposium issues etc.
I would agree with Volokh- her publication record is a little light quantitaviely (but not that much), but definitely made up for qualitatively (many professors churn out articles that I refer to as the Law & Pottery type- interdisciplinary crud that never gets used or cited other than by other people in that narrow niche).
May 10, 2010, 5:59 pmBen P says:
1. I believe it’s four major articles and 3 minor articles. 8 Articles in 7 years is a pretty good pace.
2. Although I’m currently trying to find the Volokh posts about Leiter’s rankings of faculty via productivity, it’s my general sense that people like Sunstein (and about half the conspirators here) are among the most productive law professors in the country. Saying that someone’s published less that Cass Sunstein isn’t much of an impeachment. (Although FYI – a quick search revealed that Sunstein published 35 books in 27 years)
Occasionally you see it said that someone is a ‘Lawyer’s lawyer.” If you can warp that into a “law professor’s law professor.” I think you get the sense that Kagan probably doesn’t fit into that category, especially bouncing between government work and faculty, and becoming a dean.
May 10, 2010, 6:01 pmClayton E. Cramer says:
I’m so impressed.
May 10, 2010, 6:09 pmDumbing Down the Narrative | Popehat says:
[...] I’d love to see some SCOTUS nominees who didn’t go to Harvard or Yale. My personal preference is that appellate judges have experience as trial court judges, or at least as trial court litigators, so that they have some reasonable grasp of how things actually work at the trial court level. More substantively, I’m concerned about her approach to the Constitution, and particularly toward the First Amendment, and particularly her views about hate speech and pornography restrictions expressed in this article. I am, however, somewhat mollified that the vastly-smarter-than-I-am First Amendment scholar Eugene Volokh is not particularly concerned. [...]
May 10, 2010, 6:16 pmBen P says:
14 Articles in 19 years vs 7 articles in 8 years?
May 10, 2010, 6:19 pmClayton E. Cramer says:
I’m not a professor at Harvard or Chicago. This is a hobby for me.
May 10, 2010, 6:22 pmBen P says:
Also, for what it’s worth, SCOTUSBlog has more papers than are listed here, although they list Book Reviews and various other publications that don’t quite rise to the level of scholarly articles.
May 10, 2010, 6:23 pmClayton E. Cramer says:
Also BenP, I didn’t finish my MA until 1998.
May 10, 2010, 6:24 pmkrs says:
Prof. Cramer seems to be trying to goad someone into calling his attention to point no. 2 in the post above.
May 10, 2010, 6:57 pmepluribus says:
Has she been reading the reactions on this site?
May 10, 2010, 7:33 pmloki13 says:
What, you mean the people who have any knowledge and credibility (the Conspirators, commenters I trust) falling into two camps:
a. Great pick!
b. Disagree with her ideologically, but the President deserves deference.
Meanwhile, the usual crazies and trolls behaving, well, crazy and trollish?
May 10, 2010, 7:56 pmVolokh Groupie says:
Is there an equivalent to the h-index in law?
It seems the citation record of Kagan’s papers more than makes up for any issues of quantity.
May 10, 2010, 8:14 pmPerseus says:
In terms of quantity, her publication record isn’t exactly prolific for someone at top-tier research universities (with light teaching loads and RAs), but I’m not sure what is expected of legal scholars.
May 10, 2010, 8:29 pmepluribus says:
Do you really think that reading the reactions on this site will help her sail through? How?
May 10, 2010, 8:42 pmepluribus says:
loki13:
Huh?
May 10, 2010, 8:43 pmMM says:
Prof. Volokh’s post mentioned Kagan’s output as one part of his analysis of her scholarship. But in addition to her output (which Prof. Volokh seems to find respectable), he notes that 1) legal scholars apparently respect her work, and 2) he considers her articles to be “excellent.” Prof. Volokh deserves credit for offering a quantitative AND qualitative assessment to try to paint a full picture of Kagan’s scholarship. This is much more helpful than commenters who point out that other legal scholars (or they themselves!) have more publications per year than Kagan.
May 10, 2010, 9:05 pmChrisTS says:
o, as a non-legal academic, I would like to make a plea for quality over quantity.
I have colleagues who publish ‘a lot’ in any given year, but they publish drivel (or, the same piece over and over with little tweaks and different titles).
I would also like to challenge the idea that publishing a great deal is what makes one an excellent scholar – much less a great S.C. pick. Bork and Guenir (sp?) undoubtedly both published more than Kagan. Who cares?
May 10, 2010, 9:05 pmSarcastro says:
More on this site should note how she looks like a man. Then I’d know I was really on the internet and not some fancy-pants debating society.
May 10, 2010, 9:10 pmMM says:
krs–excellent!
May 10, 2010, 9:13 pmFern says:
I don’t think the number of law review articles published should be the only measure of a law professor’s productivity outside the classroom. During that time, did she take on any high profile/important cases? Write amicus briefs in high profile/important supreme court cases? From a law school’s perspective, having their profs do those sorts of things seems equally important as publishing substantive journal articles. And from a SCOTUS confirmation perspective, they seem more interesting than journal articles. My law school professors generally only took on cases or wrote amicus briefs in cases that they were ideologically invested in.
May 10, 2010, 10:00 pmcecil kirksey says:
Prof Volokh:
How does citations of articles written by a purported constitutional scholar rate if the citations are not by a USCA or the SCOTUS? It seems to me a scholar can write about some case that is likely to be before the court, is already before the court or has been decided by the court. Any writings before the case is decided is mere speculation and any writing after the decision is analysis with more speculation except for restating the majority and minority opinions.
I have probably read more of Prof Kerrs articles than yours. Kerr seems to try to analysis for a particle case or issue what the SCOTUS will decide and by what rationale based on previous decisions. After the decision he attempts to explain it. But in reality all one has to do is read the opinion to understand it.
I would like to understand if constitutional scholarship is about trying to influence the thinking of the SCOTUS or the analysis of the opinion after the fact? Or it maybe none of these. Help please.
May 10, 2010, 10:12 pmCampos v. Volokh « Gerry Canavan says:
[...] a comment » Kevin Drum officiates an argument between Paul Campos and Eugene Volokh over the quality of Elena Kagan’s [...]
May 10, 2010, 11:34 pmB-Rob says:
I used the Gale Sayers/Walter Payton comparison earlier when Beldar compared Kagan to John Roberts. And John Stockton was no Michael Jordan, either. Beldar’s is a nonsensical criticism, though. He has his own personal idea of what a justice’s prior experience “should be.” Well fine. But being a trial attorney, I personally like Sotomayor’s prosecutor/litigator/trial judge/appellate judge progression better than Roberts government attorney/appellate advocate/appellate judge progression. Would John Roberts know how to do a direct examination at trial? Probably not. Sotomayor would. And she would have a better graps on why a prosecutor’s commentary during a death penalty trial was problematic. Likewise, I would not expect Roberts to be as conversant with the First Amendment speech and religion stuff as Kagan (or Sotomayor) because Roberts did not serve as long on the appellate court as Kagan served in academia, or Sotomayor on the 2d Cir. Doesn’t mean he was not qualified for the court, though, his comparative experience was lacking.
See how easy that is to turn the tables?
John Stockton is not Michael Jordan is not Hakeem Olajuwon. But so what? Kagan is Kagan, and she is entirely well qualified to sit on the court.
May 10, 2010, 11:39 pmDave Hardy says:
” I believe it’s four major articles and 3 minor articles. 8 Articles in 7 years is a pretty good pace.”
I dunno — in 2009-10 I’ve got five in print, and a sixth accepted, and it’s only May. Would have done better if it hadn’t been for needing to earn a living and four surgical procedures for cancer that slowed me down some.
I’d be more comfortable with her if there was some indication she’d ever tried a jury case. Or tried one to a court. Or argued and won an appeal. Things like that might have some bearing on the real world.
May 11, 2010, 12:20 amBarely A Blog » ‘Elena Kagan As Scholar’ says:
[...] Volokh thoroughly and soberly assesses the scholarly record of BHO’s SCOTUS nominee, Elena Kagan, and [...]
May 11, 2010, 3:27 amTina Trent says:
She’s an administrator. And a political appointee. And while many are fond of pretending that keeping the lid on outbursts at a place like Harvard is an admirable and difficult task, I think it’s probably much harder (and more instructive) to go out and practice the law. Besides, it’s not as if the Supreme Court is anywhere near as fraught as the Ivy League, where the biggest disputes are often the most frivolous. Do the Justices really need a hall monitor (ie. an academic dean), as many are insultingly suggesting?
I’ve read through her work on so-called hate speech, and what I find troubling is not her conclusions about the relative constitutionality of certain types of restraint (she is largely just describing these) but her casual presumption that there is some pressing need to confront “forces of hatred” (her words) in our midst. I think that says a great deal more about her mindset.
May 11, 2010, 5:41 amB-Rob says:
Isn’t that what the entire “fighting words” doctrine is all about? As well as interfering with police officer prohibitions, anti-harassment laws, witness intimidation laws, and even the self-defense doctrine — confronting uncivil behavior? Some are deterrents against uncivil behavior and others are punitive. But the First Amendment does not license you to unleash your hatred when ever, where ever or how ever you wish. Sometimes government needs to have the authority to tell someone to “s.t.f.u.” in order to maintain order and ensure the proper function of society. The question is about line drawing. Fred Phelps being the perfect example, barring military recruiters from campus being another, the abortion gag rule being a third.
May 11, 2010, 8:40 amB-Rob says:
Another thing: it is funny to see conservatives attack Kagan for “not being in touch with the lives of ordinary people” because she has been in an “Ivy League tower” for so long. Didn’t y’all just attack Sotomayor because she was TOO in touch with ordinary people and, thus, favored “the little guy” and minorities and was oozing with too much empathy? And why weren’t Roberts or Alito, who NEVER held jobs that would require dealing with “ordinary people”, ever asked about whether they were “out of touch”?
May 11, 2010, 8:44 amMorning Must Reads: Empathy and Envy - Swampland - TIME.com says:
[...] those lines: David Brooks, Jeffrey Toobin, Ed Whelan and David Bernstein. Eugene Volokh is fairly impressed with her scholarship, limited as it may [...]
May 11, 2010, 10:11 amJ Richardson says:
I guess I’m not the only one who is somewhat mystified that you can get tenure at a top law school with such a light research output.
http://www.poliscijobrumors.com/topic.php?id=23567
I guess there *is* a difference between academic departments and professional schools.
May 11, 2010, 10:15 amEugene Volokh on Elena Kagan's First Amendment Academic Articles: "I think they're excellent. I disagree with them in significant ways....But I like them a lot." - Hit & Run : Reason Magazine says:
[...] Welch | May 11, 2010 An interesting, thorough, and helpfully contextual examination of one noted First Amendment scholar by another. Zooming to the question du [...]
May 11, 2010, 10:22 amMarkInAustin says:
While she argued the Citizens United case for the USA I thought her argument, from the transcript, was more conciliatory than necessary. Please read her 1996 Chicago Law Review article “Private Speech-Public Purpose”. OK – it is dense and scholarly, so just read pp. 464-472. While you are completing your assignment, read this footnote at p. 465:
143 Austin v Michigan Chamber of Commerce, 494 US 652, 660 (1990). The Court tried to distinguish Austin from Buckley, principally on the ground that corporate wealth derives from privileges bestowed on corporations by the government. Id. But this argument fails, because individual wealth also derives from governmental action. What the Court recognized in Austin is only what is true in every case: direct regulation of speech occurs against a backdrop of law that, while not referring to speech, goes far toward structuring the sphere of public expression. The question in every case is whether the government may use direct regulation of speech to redress prior imbalances.
In those eight pages she says all the justices in 1996 would have agreed with the general principle of Buckley but some would carve exceptions. Limiting corporate campaign money would be an exception to Buckley. Austin was an exception to Buckley. So no wonder she did not argue from Austin considering she has written it is fallacious, on the phony ground that “individual wealth also derives from governmental action.” Any lawyer who seriously argues that the legal fiction of a corporation, which was “invented” to accumulate investment capital in a for profit business while giving a liability shield to the investors, is somehow the equivalent of a private citizen [also, by her reasoning, a governmental invention, apparently] cannot be compared favorably to Stevens.
Talk about ivory tower legal scholarship – this is it.
May 11, 2010, 10:36 amPHil says:
You think? Brilliant. Let me guess, you are pretty clueless, generally.
May 11, 2010, 11:41 amJules Crittenden » Imagine Their Surprise says:
[...] Volokh: A legal scholar on Kagan as scholar. [...]
May 11, 2010, 12:11 pmMatthew Yglesias » Elena Kagan’s Scholarship says:
[...] there, largely courtesy of Paul Campos, that Elana Kagan was an unproductive scholar. Eugene Volokh says that’s a mistake and we should simply see her as someone who had a brief tenure as a scholar: Kagan was a working [...]
May 11, 2010, 12:15 pmMore on Kagan’s Supreme Ambition. Can Kagan kick her ideas into high gear after decades of inactivity? « Josh Blackman's Blog says:
[...] you get better with practice. Although she has published a few articles (See Eugene Volokh’s good summary), her output pales in comparison to other big idea academics who have joined the Federal [...]
May 11, 2010, 2:16 pmBeldar says:
Since Prof. Volohk hasn’t yet responded to my question about how Kagan’s academic output compares to his own, for example, I’ll simply note that at this link to Prof. Volokh’s writings, he’s got 26 different topical categories of writings listed, almost every one of which contain more total articles than Kagan has published in her entire academic career. I don’t know how many of those Prof. V would consider to be “major” articles, but I’m very, very, very sure that it’s a multiple of Kagan’s four over an eight-year period.
If you want me to be impressed with Kagan as a legal scholar, show me at least an effort at scholarship that looks more like Prof. Volokh’s, please.
And the thing is, I could go down the CVs for the other Volokh Conspiracy contributors and show essentially the same kind of lopsided comparison. And indeed, I could start combing the websites of any top-25 law school (and probably much deeper into the rankings) and easily find a very large handful of professors at each of them whose academic output would likewise dwarf Kagan’s.
I think Prof. V’s own record effectively destroys his conclusion that Kagan’s “four major articles” amount to “quite good output for eight years as a working scholar.”
I’m similarly sure that were he motivated to do so, Prof. Volokh could run some statistical analysis, maybe figure a couple of standard deviations and means and medians for us, and provide an empirical evaluation of Kagan’s output. But I’m pretty confident that compared to legal academics in general, she’s still going to be way out under the flat part and the low side of the distribution curves.
She is not an impressive SCOTUS nominee based on her career as a legal academic. She is not an impressive SCOTUS nominee based on her performance as solicitor general (brief and, at least in oral arguments, remarkably ineffectual). If she did anything truly magnificent as an administration lawyer for the Clintons, I haven’t seen that demonstrated yet, so I can’t say she’s an impressive SCOTUS nominee based on her past performance as a government lawyer.
She’s just not an impressive SCOTUS nominee, period — even if she has (as I again concede) something above the bare minimum qualifications to be a qualified nominee.
May 11, 2010, 2:30 pmBeldar says:
B-Rob (May 10, 2010, 11:39 pm): I actually agree with you that among the strongest arguments in favor of Justice Sotomayor’s nomination was the fact that she had been in both public (i.e., prosecutorial) and private (civil and criminal) litigation practices before taking the district court bench, and that she had indeed had that district court experience in addition to her experience on the Second Circuit. She’s not the iconic trial lawyer’s trial lawyer that I would have preferred — and by “trial lawyer,” I don’t mean someone who handles (and mostly settles) only contingent fee plaintiffs’ personal injury claims, I mean someone who actually and regularly tries cases to a jury verdict — but she is indeed closer to that than anyone else who is currently on the SCOTUS.
And of course, Kagan lacks any experience specifically comparable to Sotomayor’s as a trial lawyer or trial judge.
As for my “own personal idea of what a justice’s prior experience ‘should be,’” I by no means rule out the idea that our law schools can and should continue to furnish some portion of the SCOTUS’ membership. I’m less impressed by administrators from law schools than with genuine legal scholars, however, and the only thing particularly impressive to me about Kagan’s specific track record as Harvard’s dean was her ending up on the miserably wrong side of an 8/0 SCOTUS decision about military recruiting on campus.
May 11, 2010, 2:50 pmToday’s News: Supreme Court nominee, Elena Kagan - Generation J.D. says:
[...] Elena Kagan as a scholar: A common talking point about Kagan has become her relative lack of legal scholarship, especially for a professor tenured at University of Chicago and Harvard Law School. Volokh provides a great analysis of the quantity of Kagan’s writings, as well as the quality. [...]
May 11, 2010, 3:05 pmSarcastro says:
I demand quantity in scholarship!
I also demand Judging!
Also I demand work in the private sector, where the real jobs are!
And a true job, tilling the fields, working with your hands!
Anything else and you are inexperienced.
May 11, 2010, 4:01 pmBalloon Juice » Blog Archive » And Now For Something Completely Different says:
[...] with screaming about how Obama let you down or debating Elena Kagan’s sexual orientation, but Eugene Volokh has reviewed Kagan’s body of scholarly work and has deemed it to be quit substantial in quantity for the period of time she has spent as a [...]
May 11, 2010, 5:17 pmTR says:
This was incredibly helpful. Thanks so much for taking the time.
May 11, 2010, 7:25 pmThe Babbling Brooks « The Lure says:
[...] the very best journals: Harvard Law Review, Chicago Law Review and Supreme Court Review) and (in Volokh’s words) “three shorter but still substantial pieces.” Says Volokh, “Quantitatively, this is [...]
May 11, 2010, 7:39 pmpeter jackson says:
Although I appreciate the technical nature of Professor Volokh’s appraisal of Kagan, as a “non-attorney spokesman” I still have to wonder what’s so hard to understand about “Congress shall make no law… .”
May 12, 2010, 1:52 amjoelp says:
Is it just me or does anyone else think that the people trying to compare their publications in minor journals to 4 widely cited pieces are ridiculous?
May 12, 2010, 4:17 amFM newswire for May 12, interesting articles about geopolitics « Fabius Maximus says:
[...] “Elena Kagan as Scholar“, Eugene Volokh, Volokh Conspiracy, 10 May [...]
May 12, 2010, 11:26 amThe Anchoress | A First Things Blog says:
[...] through it, anyway. I find that a bit worrisome, as I do some of her other analysis. Then again, I am not a lawyer, so my thoughts there don’t count for [...]
May 12, 2010, 1:02 pmB-Rob says:
I am not sure I understand this criticism. Kagan was not reversed on that case; it was the Third Circuit (or was it the Fourth?) that was reversed. I went to school with the guy who actually argued the case. If you want to blame anyone for the loss, blame him, since he argued the case and was responsible for the brief.
But even that is not entirely fair. He won at the Court of Appeal and lost on susequent appeal. 50% of litigants in an appeal lose. And I seem to recall that upwards of 90% of the Supreme Court’s decisions are unanimous. But the position taken by the law schools was not quixotic or frivolous or outlandish. If that loss should keep her off the court, then Roberts should not be in the court either, since he has ridden some losers, too.
May 12, 2010, 6:12 pmjuarforchuckles says:
“Is it just me or does anyone else think that the people trying to compare their publications in minor journals to 4 widely cited pieces are ridiculous?” No it is not just you. Words like “hobby”,”Akron Law Journal”, and “output” speaks volumes. The reality is that within a few short years of joining Academia she proved her thinking relevant, was tenured, and moved on to government. Rinsed and repeated. Harvard Dean…Solicitor General and all before the age of 50. Affirmative Action, lesbian,she fooled everybody, hardly. Sorry boys the cigar smoking, baseball playing, fat Jewish girl merely ran circles around you. She made it look easy and with a smile on her face and your out to make sure she pays! Somehow. Someway.
May 12, 2010, 6:18 pmB-Rob says:
Compared to whom? She is clearly more impressive than Souter, Thomas, or Kennedy were when they were appointed. Ginsberg is a legend in litigation, as was Marshall. Roberts was a great appellate advocate, apparently, but had minimal experience as a judge. Neither Breyer nor Scalia struck me as all that important at the time. But then there is Potter Stewart. Warren Burger. O’Connor? Puh-leeze . . . .
And let’s look at some who did not make it. Doug Ginsburg . . . meh. Harriet Miers — Carswell in a dress. Bob Bork was a smart man with some truly bizarre ideas about the Constitution . . . like ignoring the Ninth Amendment because it did not fit his authoritarian worldview.
Hate to keep going back to football analogies, but they are so apt. Donovan McNabb was something like the fifth QB drafted his year, behind Tim Couch and Akili Smith. He will be in the Hall of Fame, I predict. But he was a damn good college QB, regardless.
You harp on stats regarding her scholarship. Well Tim Couch threw for twice the yardage in college than McNabb. Ditto Ryan Leaf. How’d they work out at the next level?
Some people come out with big names and amount to a fart in a windstorm. Some rise to greatness from modest expectations. Kagan is certainly, preparation-wise, well in the high average range of nominees, based just on her ability shown so far.
I should probably also disclose my bias — I had Kagan for two courses in law school, labor law and First Amendment. She was an amazing teacher, so her at oral argument would be a real treat.
May 12, 2010, 6:30 pmB-Rob says:
I think it is hilarious that she is being criticized for not being like the average Joe, when Sotomayor was slammed a year ago for supposedly aligning herself “too much” with the little guy. And all this criticism coming from the crowd that gave us John Roberts and Sam Alito! Ya think an Obama Supreme Court nominee just can’t win with these people? Nope, they can’t.
May 12, 2010, 7:11 pmJohn L says:
“Sorry boys the cigar smoking, baseball playing, fat Jewish girl merely ran circles around you. She made it look easy and with a smile on her face and you['re] out to make sure she pays! Somehow. Someway.”
Fantastic! Made my day. B-Rob’s post is good too.
What struck me was Volokh’s conclusion that “the articles go behind glib generalizations and formalistic distinctions and deal with the actual reality on the ground, such as the actual likely effects of speech restrictions.” This is exactly Obama’s point that he thinks she will understand the impact of her rulings on ordinary people.
May 12, 2010, 7:29 pm| KimPriestap says:
[...] I began reading what others who had more information thought about her. Eugene Volokh thinks highly of her and says she may be the best we can get from an Obama presidency. Dale Carpenter also at Volokh [...]
May 13, 2010, 1:02 amRuling Imagination: Law and Creativity » Blog Archive » Elena Kagan is no blank slate, and to say otherwise is to spout lies. says:
[...] Blog, in almost 10,000 words, summarizes her career, and includes links to her legal scholarship. Eugene Volokh, no liberal, writes the following: Kagan was a working scholar from 1991–95, and then 1999–2003. Between those years, she worked [...]
May 13, 2010, 8:29 amBruce Majors says:
The most salient fact about her is that Obama picked her. And his every word has been a lie and his every move a move to expand state power.
The fact that she adores him, is willing to lie about her homosexuality (like so many Democratic Party lesbians, from Barbara Mikulski to Donna Brazile, to Hillary Rosen) for a chance at power, and that she wrote a lament about the failure of the Socialist Party to come to power in America as her senior thesis, are just icing on the cake.
She doesn’t deserve to be on the Court. I doubt she deserves to have American citizenship or a green card.
May 13, 2010, 11:25 amBeldar says:
B-Rob: Have you read the transcripts of any of her SCOTUS oral arguments? So far, she’s been … undistinguished is the most kind thing that can be said, awful is more accurate.
Re the 8/0 loss in the SCOTUS, it’s not that she was a hired advocate whose position lost. (Although she did sign a brief, with other deans.) It’s that she was the CLIENT, making policy for her school. And that policy was reflexively and dishonestly and — we now know for SURE — illegally discriminatory against the U.s. military, not the Clinton Administration or the Congress that actually came up with DADT.
Nice of you to (finally) disclose your personal connections.
May 13, 2010, 1:10 pmPG says:
Beldar,
So if Obama nominated to the Supreme Court any of the judges on the Third Circuit who declared the Solomon Amendment unconstitutional, you would say they also are of questionable credentials because they came up with a different ruling than an 8-0 Court?
“And that policy was reflexively and dishonestly and — we now know for SURE — illegally discriminatory against the U.s. military, not the Clinton Administration or the Congress that actually came up with DADT.”
I don’t even know what that sentence is supposed to mean. Prohibiting the military from recruiting on campuses that received any federal funding was illegal because Congress (i.e. the same body that passed DADT in the first place) legislated that it was so. The question in the case was whether this legislation violated the law schools’ First Amendment right of freedom of expressive association. There was a unanimous result (which, by the way, many conservatives did not predict — I heard from several who assumed the liberals on the court would go with the law schools) because the liberals want to protect the Bob Jones precedent. “Illegally discriminatory” here doesn’t really mean anything — it’s not like the law schools were violating an anti-discrimination statute such as the Civil Right Act of 1964. They prohibit ALL employers who engage in discrimination on the basis of sexual orientation from recruiting on campus. The military gets to recruit nonetheless — something that a law firm or non-profit with a similar policy wouldn’t be allowed to do — because it’s getting special treatment. So there was no “discrimination” by the law schools against the military, only the application of a general policy. The “discrimination” was by Congress, which understandably wants the military to be treated differently than other employers who have the same policies. But insisting that one be treated different than similarly-situated others is kinda the definition of discrimination.
May 13, 2010, 4:21 pmKAGAN: “Hate-Speech” Crazy & 1st Ammendment “NEUTRAILTY” Nut « THE MAD JEWESS says:
[...] The Rest:The Volokh Conspiracy » Elena Kagan as Scholar [...]
May 13, 2010, 9:16 pmKamal says:
Nice dancing but you should know that issue isn’t about speech, it’s about government endorsement of religions. I don’t feel it’s appropriate for the government to spend public resources on the Church of Satan’s philanthropic wing, which would help it’s image. Let them spend their own money.
And I most certainly don’t want money going to support the philanthropic wings of Muslim, Jewish or Christian entities either.
May 13, 2010, 9:39 pmyou know what assholes say about softball players…… « A posteriori says:
[...] Eugene Volokh thinks she would not make a bad Supreme Court Justice. Who cares if she’s a lesbian or not? [...]
May 13, 2010, 10:16 pmLawrence Kramer says:
I found Kagan’s article about hate speech and pornography disturbing. She seems to think it would be good if we could outlaw both, but agrees that we can’t. In other words, while she recognizes that we need free speech for some reason or other, she doesn’t really believe in it, at least not for racists or misogynists.
Some self-styled champions of free speech argue that we must tolerate the obnoxious views of others so that we will not be silenced ourselves. But that’s not all there is to it. Free speech is also about my right to know what others think so that I can do politics more effectively. Who shall I support? Who shall I oppose? Who thinks like me? Who is dangerous to me? These things I can know because the government cannot silence politically relevant speech.
It’s this aspect of First Amendment jurisprudence that Kagan appears not to comprehend, for, if she did, she would not write articles probing the limits of suppression but would argue forcefully that the goal itself is antithetical to self-government.
May 13, 2010, 11:26 pmrealwest says:
Well I know I’m swimming up-river here, but I frankly prefer Justices of The United States Supreme Court to only “interpret” language in our Constitution when that language is vague or subject to interpretation.
May 13, 2010, 11:52 pmThe fact is that the First Amendment states that “Congress shall make NO law abridging the rights of……………..” What is ambiguous about “No Law”? Mr. Justice Hugo Black took the same approach and, of course SCOTUS ignored his objections and found lots of “ambiguity” in the phrase “No Law”.
And – as James Madison’s mentor and partial drafter of our Constitution, Thomas Jefferson was for a totally free market of ideas, trusting to the judgment of the people to sort out what is best and worst.
It is, one supposes, too late to close and lock the barn door, the horses on the First Amendment have already run away. But that doesn’t make it wrong for a newer Supreme Court to say “enough already”. I believe deeply that of all the freedoms granted to us by the Bill of Rights, the Freedom of Speech is the most valuable and judge harshly all the Justices of the Supreme Court who have not viewed No law as meaning No law.
PG says:
“Free speech is also about my right to know what others think so that I can do politics more effectively. Who shall I support? Who shall I oppose? Who thinks like me? Who is dangerous to me?”
That would seem to mandate disclosure of others’ thoughts, which I assume is not what you mean.
May 14, 2010, 12:30 amLawrence Kramer says:
PG- Yes, that’s not what I mean. I mean only that I want to be permitted to hear whatever you have to say, even if only so that I can know that you wanted to say it.
May 14, 2010, 12:39 amBeck falsely suggests Kagan endorsed government action against conservative speech | DEMOCRAT.GNOM.ES says:
[...] First Amendment expert predicts that, like Justice Ginsburg, Kagan will likely be “generally pretty speech-protective.” Libertarian law professor Eugene Volokh, whose UCLA bio describes him as “a nationally recognized expert on the First Amendment,” examined Kagan’s scholarship on the First Amendment, including the article that Beck distorted. Volokh concluded that “the likeliest bet” is that Kagan would be “generally speech-protective, but probably with some exceptions in those areas where the liberal Justices on the Court have taken a more speech-restrictive view.” Volokh wrote: [...]
May 14, 2010, 3:03 amKWR says:
Fascinating coming from someone who just stumbled onto this website trying to learn more about Kagan. I’m not a legal scholar but I can tell you from reading every comment above that if anyone who believes Kagan is a qualified nominee knowing she can’t even be honest about her sexuality, how can you trust that her views on the 1st Amendment will be truthful? Clinton never inhaled, either.
May 17, 2010, 9:06 pmNothing Wash. Times says about Kagan’s views on the First Amendment is true | DEMOCRAT.GNOM.ES says:
[...] First Amendment scholar Volokh predicts that — like Justice Ginsburg — Kagan will likely be “generally pretty speech-protective.” Conservative media have repeatedly distorted Kagan’s statements to suggest that she is anti-free speech. However,libertarian law professor and First Amendment expert Eugene Volokh examined Kagan’s scholarship on the First Amendment and concluded that “the likeliest bet” is that Kagan would be “generally speech-protective, but probably with some exceptions in those areas where the liberal Justices on the Court have taken a more speech-restrictive view.” Volokh wrote: [...]
May 19, 2010, 12:12 amWND’s Hentoff drums up bogus controversy over Kagan’s First Amendment views | DEMOCRAT.GNOM.ES says:
[...] First Amendment scholar Volokh predicts that — like Justice Ginsburg — Kagan will likely be “generally pretty speech-protective.” Conservative media have repeatedly distorted Kagan’s statements to suggest that she is anti-free speech. However, libertarian law professor and First Amendment expert Eugene Volokh examined Kagan’s scholarship on the First Amendment and concluded that “the likeliest bet” is that Kagan would be “generally speech-protective, but probably with some exceptions in those areas where the liberal Justices on the Court have taken a more speech-restrictive view.” Volokh wrote: [...]
May 20, 2010, 1:12 pmjim says:
my guess is she is a lightweight, one that has few core values and will be counted on by this administration to carry their water. however, after this administration leaves town she will go her own way and become another kennedy.
May 28, 2010, 3:33 amThe Cloakroom » Kagan Constructions: Arlen, Guns and One From the Boss says:
[...] “Elena Kagan as Scholar” by Eugene Volokh for Volokh Conspiracy, May 27, 2010. [...]
May 28, 2010, 7:32 amSupreme Court Nominee Elena Kagan’s Views just as Opaque as Obama’s | The Post & Email says:
[...] Volokh, a constitutional law professor at UCLA and blogger at The Volokh Conspiracy, recently opined that it was hard to tell for sure how Kagan would vote on First Amendment cases. Volokh wrote: [...]
June 8, 2010, 9:44 am