The Volokh Conspiracy

As some of our readers know, co-blogger Todd Zywicki and I are co-editors of the Supreme Court Economic Review, a peer-review publication that is one of the country’s top-rated law and economics journals. Our third co-editor is my colleague Josh Wright, who blogs at Truth on the Market.

We are pleased to announce that, thanks to our publisher, the University of Chicago Press, the SCER now has a brand-new 21st century submissions website. We welcome submissions by law and economics scholars, constitutional law scholars, and others writing in the fields of law and economics, constitutional theory, and related areas. You too might be able to publish in the world’s only academic journal edited by two Volokh Conspirators.

The new website has just gone online, so I apologize in advance for any minor glitches you may encounter.

Orin quotes Leiter as follows, in suggesting that Elizabeth Warren would not have listed herself as a Native American to benefit from affirmative action: “For affirmative action purposes, all law schools care about are African-Americans and Latinos.” But he also quotes Leiter as follows: “[B]ecause the AALS aggressively polices the racial and ethnic diversity of law faculties [editor's note: as does the ABA, which is of course in charge of accreditation], law schools are careful to make sure anyone who could count as an under-represented minority is so-listed.”

So if law schools are worried about not having “enough” underrepresented minority faculty to satisfy the AALS (and the ABA), and if Native Americans count as underrepresented minority faculty (they do), surely it gives a law professor a potential advantage to promote oneself as a Native American.

This is not to say that Warren’s hiring at Harvard had anything to do with her dubious claim of minority status. But that’s a red herring. The issue isn’t whether Harvard or anyone else would or would not have hired Warren otherwise. The issue is whether Warren claimed dubious minority status because she thought that on the margins it might benefit her. [The issue, in short, is Warren's integrity, not whether she "deserves" to be at Harvard based on her academic achievements. In fact, Warren has had an extremely impressive academic career, especially given that she started with the serious disadvantage of not in any way taking the traditional 'elite law school to elite clerkship to elite law firm' route that almost every professor at an elite law school has taken.]

Perhaps not. But all she has to do to clear things up is to answer the following question: “why did you list yourself as a minority professor when you were a professor at Texas and Penn, but then didn’t do so once you arrived at Harvard.” I can think of plausible explanations that would not reflect poorly on Warren, but she hasn’t as yet provided such an explanation. All she’s said is that she’s proud of her Native American heritage, which hardly explains why she listed herself at Penn and Texas and not at Harvard.

Note to Warren’s campaign: If you want to provide a written response to the query above, I’d be happy to post it on this blog.

UPDATE: Warren now claims that the answer the query raised above is that she hoped to meet and interact with other lawprofs who similarly had Native American ancestry. Professor Jacobson responds that this doesn’t make sense, because the AALS guide doesn’t tell one’s colleague which minority group one is claiming membership in. Read his post and decide for yourself.

Plenty of other bloggers are following the story of Warren’s claim of minority status, and I’ll leave it to them. But I did want to reprint the reporting below by Professor Jacobson, because it’s salient to many of the comments to my original post (and kudos to Jacobson for gathering more information than reporters from major newspapers have managed). In particular, Jacobson confirmed that Warren self-identified in the AALS faculty guide as a “minority” based on Native American status.

I spoke this afternoon with Alethea Harney, Warren’s campaign press secretary, and confirmed several key details.

Harney acknowledged that the minority status reported by Warren to AALS was Native American, and that while Warren does not remember the precise forms, she believes there was a box or other designation to be selected for Native American.

The AALS reporting was the only time Warren self-identified as Native American as far as Warren currently is aware, according to Harney, and Warren never has joined any Native American groups, or asserted any tribal memberships.

According to Harney, Warren’s Native American status did not come up in connection with her hiring by HLS, and in fact she was recruited and did not apply.

Harney said that Warren does not have any records documenting her Native American heritage, but that is being researched. Harney said that the campaign has been told that there is no good genealogical documentation with regard to tribes from Oklahoma, unlike tribes from some other areas. Harney did indicate that the tribal connection is believed to be on Warren’s grandmother’s side of the family.

Harney was unaware of whether Warren ever claimed Native American status on any college or law school applications, and would not comment on how HLS ended up listing Warren as Native American.

UPDATE: Oh, and this made me laugh out loud, for reasons having nothing to do with the “diversity” issue: “On Monday night, officials involved in her hiring at Harvard, the University of Pennsylvania, the University of Texas and the University of Houston Law Center all said [in statements released by the Warren campaign] that she was hired because she was an outstanding teacher, and that her lineage was either not discussed or not a factor.”

Harvard and other elite law schools are now hiring tenured faculty primarily based on teaching prowess, rather than scholarship? Expect the relevant lateral appointments committees to be inundated with c.v.s from student-selected “professors of the year” who have until now somehow escaped the top law schools’ notice.

[As Orin writes in the comments, "to a law professor familiar with academic hiring, this [being hired by an elite school based on teaching rather than scholarship] is akin to proposing that a 19-year old guy was attracted to a Victoria’s Secret model primarily because of her personality. It’s possible in theory, but not likely in reality.”]

FURTHER UPDATE: Just to be clear, the “hired for being an outstanding teacher” line is the Times’s reporter’s interpretation of what the law school officials said. Politico reprints the letters in full, and they all at least mention Warren’s scholarly ability.

And there’s an additional amusing aspect to this whole kerfuffle, which is individuals who would normally trumpet law school diversity efforts that consider “minority” status a plus for faculty hiring expressing dismay that anyone would wonder whether dubious minority status was claimed because it might be be a plus for hiring. Professor Althouse and John Rosenberg elaborate.

The University of Texas at Austin has retained Latham & Watkins to defend its affirmative action policy before the U.S. Supreme Court in Fisher v. University of Texas.   The team of attorneys on the case includes former Solicitor General Greg Garre and former Deputy Solicitor General Maureen Mahoney.  It’s hard to think of a legal team more able to defend the university’s program.  Both Garre and Mahoney served in Republican administrations and, perhaps more significantly, Mahoney successfully defended the University of Michigan law school’s affirmative action program in Grutter v. Bollinger.   (Mahoney was also the subject of Supreme Court nomination buzz and has been characterized as the “female John Roberts.”  Some speculate her success in Grutter may have been a strike against her nomination.)

The decision to hire Garre and Mahoney is understandable, the size of the retainer has raised some eyebrows.  The choice to eschew representation by the state’s Attorney General and retain outside counsel will cost the University approximately $1 million — money the university insists will not come out of state appropriations or tuition revenues, but “discretionary funds” (as if the money isn’t fungible).  John Rosenberg comments:

Funny, I thought the taxpayers of Texas had already paid not inconsiderable sums to support a large and highly regarded law school at the University of Texas, a law school whose constitutional lawyers are no doubt well schooled in all the loopholes of anti-discrimination law — they do, after all, have both institutional and personal memory of their school’s effort to deny admission to Cheryl Hopwood (an effort, by the way, that was represented pro bono by Vinson and Elkins). In addition, Texans also already pay to support the office and large staff of the state’s Attorney General.

UPDATE: Some in the comments have asked how this fee arrangement compares with other recent instances in which government entities have hired elite Supreme Court counsel.  I don’t know what’s typical, but there have been several reports about the fees states and other government actors have paid Paul Clement for his recent work.  For representing over two-dozen states in the 11th Circuit and Supreme Court Clement received a discounted fee of $250,000.  I have not found a direct report on the fees for defending Arizona’s immigration law, but according to these reports, these fees are being paid from an outside fund set up to raise money to defend the law.  And Clement’s work for the House of Representatives defending the Defense of Marriage Act in multiple cases pending in lower courts was initially capped at $500,000, but has since been raised to $750,000 and could go as high as $1.5 million.

A controversy has broken out in Massachusetts over the fact that Harvard Law School has claimed professor and current senatorial candidate Elizabeth as a minority member of the faculty based on apparent (but as yet unconfirmed) Native American ancestry. The Brown camp seems to think this is big news [update: the campaign has called on her to apologize for allowing Harvard to claim her as a "minority"; this, as we'll see, doesn't make any sense, because at the time Warren was claiming herself as a minority, and Harvard was only following her lead], Warren responds that she’s unaware that Harvard claimed her as a minority professor, but that she’s proud of her Indian ancestry. Her colleague Charles Fried, who was chair of the appointments committee when she was hired, claims that Warren’s Native American ancestry never came up in the hiring process, and that he only became aware of it later.

My contribution to this controversy is that there seems to be some disingenuousness going on. Warren says that she could not “recall” ever listing her Native American background when applying for college or a job.

The old AALS Directory of Faculty guides are online (through academic libraries) at Hein Online. The directories starting listing minority faculty in an appendix in 1986. There’s Elizabeth Warren, listed as a professor at Texas. I spot-checked three additional directories from when she was a professor at the University of Pennsylvania, including 1995-96, the year Harvard offered her a position. Elizabeth Warren, Elizabeth Warren, Elizabeth Warren.

So, we know one thing with almost 100% certainty: Elizabeth Warren identified herself as a minority law professor. We know something else with 90%+ certainty: (at least some) folks at Harvard were almost certainly aware that she identified as a minority law professor, though they may not have known which ethnic group she claimed to be belong to, and it may not have played any role in her hiring.

But it gets even more interesting: once Warren joined the Harvard faculty, she dropped off the list of minority law faculty. Now that’s passing strange. When the AALS directory form came around before Warren arrived at Harvard, she was proud enough of her Native American ancestry to ask that she be listed among the minority law professors. (Or, in the unlikely even that she just allowed law school administrators to fill out the forms for her without reviewing them, they were aware that she claimed such ancestry, and she didn’t object when she was listed.) Once she arrived at Harvard, however, she no longer chose to be listed as a minority law professor.

Hmmm.

UPDATE: This story reminded me of the 1980s case of the twin red-haired Boston firefighters who claimed to be black, based on a photo of a great-grandmother and alleged oral history. While I remembered that they had gotten fired for their alleged fraud, I didn’t remember this detail:

Under current rules, said [general counsel to the state personnel office] Ms. Dale, candidates who say they are members of minority groups are judged by appearance, documented personal history and identification with a minority community. Disputes over claims of minority status are resolved by the Department of Personnel Administration.

And indeed, there eventually was a two-day administrative hearing, in which the hearing officer determined that the twins failed all three criteria, and thus were not black. A judge upheld the ruling, finding that the twins had claimed minority status in bad faith.I have to admit being under the impression until now that as a legal matter, minority status was an in issue of self-reporting. But at least in the Massachusetts Civil Service system, one can get fired for “racial fraud.”

I am currently in the process of putting together a talk for aspiring law professors, as part of an Institute for Humane Studies program. One of the questions that I expect to get asked is how to decide what subjects to write on. I think the best answer is given in Chuck Yeager’s autobiography, which I recently read:

If you love the hell out of what you’re doing, you’re usually pretty good at it, and you end up making your own breaks….

I wasn’t a deep, sophisticated person, but I lived by a basic principle: I only did what I enjoyed.

Some professors will tell younger scholars that if you want to get ahead, you should write on “hot” subjects or those that are ideologically congenial to other academics and hiring committees. But, as Yeager recognized, most people do their best work when they focus on issues that actually interest them. Yeager became the greatest test pilot of his time in part because he loved flying jet fighters more than anything else in the world. If you want to be a top scholar, it helps to write about things you “love the hell out of.”

You don’t have to love your work as much Yeager did to be successful. But it’s generally better for your career to do good work on issues that you really care about than weaker work on issues that are more trendy or ideologically safer. And if you don’t get ahead as much as you would like, at least you will have spent your time doing something interesting, so it won’t be a total waste.

UPDATE: I suppose I should emphasize that I am not suggesting that how much you love the subjects you write about is the only determinant of how successful you are, or even always the main one. Obviously, other factors – talent, experience, luck – matter too. The point, however, is that choosing subjects you love often greatly increases your chances of becoming a successful academic, even though it certainly doesn’t guarantee success. I would also add that if you love two or three different subjects about equally, it makes sense from a career standpoint to choose the one that is most likely to be well-received by other academics.

I think Yeager was making a similar point about his own career. Obviously, his love of flying wasn’t the only cause of his extraordinary success. But it was an important factor.

If you are a law student interested in pursuing a career as a legal academic, you may be interested in the Institute for Humane Studies’ upcoming online program for aspiring legal scholars: a series of online lectures on various topics related to getting into legal academia that will be followed by question and answer sessions. There will be a total of five one hour sessions held on weekday nights in May. The lecturers include VC bloggers David Bernstein, Todd Zywicki, and myself, as well as Chapman law professor Tom Bell and Lee Otis, director of the Federalist Society’s Faculty Division. My own talk, scheduled for May 9, is on the subject of “How to Make the Most of Your Time in Law School.” Since IHS is a libertarian organization, some of the advice we offer is specific to libertarians seeking careers in legal academia. But most of it is likely to apply more broadly.

You can sign up for one or more of the sessions here. Participation is free for anyone who is a law student interested in pursuing a career in legal academia. But you must sign up by Friday April 27.

Guess who wrote the book described in this advertising blurb:

America’s Prophets: How Judicial Activism Makes America Great fills a major void in the popular literature by providing a thorough definition and historical account of judicial activism and by arguing that it is a method of prophetic adjudication which is essential to preserving American values. ___ confounds the allegation of the Christian right that judicial activism is legally and morally unsound by tracing the roots of American judicial activism to the methods of legal and moral interpretation developed by the prophets of the Hebrew Bible. He claims that Isaiah, Amos, and Jesus are archetypal activist judges and, conversely, that modern activist judges are America’s prophets. ___ argues that judicial restraint is a priestly method of adjudication and that it, not judicial activism, is the legally and morally unsound method.

Race and gender discrimination, separation of church and state, privacy rights, and same-sex marriage are all issues that have divided our nation and required judicial intervention. Every time the courts address a hot-button issue and strike down entrenched bias or bigotry, critics accuse the justices of being judicial activists, whose decisions promote their personal biases and flout constitutional principles. This term, despite its widespread currency as a pejorative, has never been rigorously defined. Critics of judicial activism properly point out that when judges overturn laws that enforce popular norms they thwart the will of the majority. But ___ argues that so-called activist judges uphold two other American legal values that are as deeply embedded in American legal culture as majoritarianism: liberty and equality. He challenges the notion that judicial activism is unprincipled, and he provides a vocabulary and historical context for defending progressive decisions.

Answer: University of Houston law professor David Dow, who wants to impeach the Justices if they invalidate the ACA because that would prove them to be judicial activists, whose decisions promote their personal biases and flout constitutional principles.

H/T Instapundit

The discussion of why liberal and even some conservative (see this hissy fit by Charles Fried) academics were unable to see the plausibility of the constitutional challenge to the individual mandate reminds me of an anecdote from my law school days.

I was at a Federalist Society student conference chatting with a prominent professor.  We got into a discussion of the Takings Clause, and he told me about the various theories of Takings he goes through when he teaches the clause.  Conspicuously absent was any mention of Richard Epstein’s theories, even though Epstein was one of the most cited law professors in the country, and had published just a few years earlier a widely-discussed book on the subject.

So I asked this professor whether he covered Epstein’s theories at all.  He said, “no, I don’t even mention them.”  I asked why.  He said, “I don’t think anyone takes Epstein’s book seriously.”  This, mind you, from a professor who was something of a libertarian fellow traveler himself.

Flash forward a year, to my clerkship interviews.  I applied to both Democratic and Republican appointees, but only Republicans gave me interviews.  With one exception, every one of the judges seven or eight judges I interviewed with, including some of the most prominent judges in the country, asked me what I thought of Epstein’s book.

Now I’m sure that they asked me this in part because it was pretty obvious that I was libertarian-minded, and this was the most prominent libertarian law book of the day. Still, it was clear from the questions that this book that “no one” was taking seriously in liberal-dominated academia was being taken very seriously among elite conservative jurists.

(As an aside, ironically the one judge who didn’t ask me about Epstein’s book was Clarence Thomas, who wound up having the book waved at him by Joe Biden at the beginning of his confirmation hearing).

Greg Sargent is one of many commentators wondering “How did legal observers and Obamacare backers get it so wrong?”  I think he’s asking the wrong question.  A better question to ask is: why did so many expect legal elites to have any particular insight into the current court?  After  all, many of the legal experts who were so dismissive of the arguments against the mandate were equally dismissive of the federalism arguments that prevailed in cases like United States v. Lopez, New York v. United States, and City of Boerne v. Flores.  Many of the legal academics who ridiculed Randy Barnett’s work on the mandate, and who were relied upon by legal journalists and commentators, thought their schools were advancing viable legal claims in Rumsfeld v. FAIR.  Oops.  Premier appellate litigators may have a good sense of how the Court is likely to assess complex constitutional law claims, but elite legal academics, not so much.

What explains this state of affairs?  I believe there are several factors at work, but one in particular is the increasing separation of the legal academy from the practice of law — a separation that is greatest in fields, such as constitutional law, that touch on broad questions of public policy.  At many schools, academics are more interested in developing a comprehensive theory of justice than in divining the nuances buried in the Court’s cases.  Junior academics are routinely discouraged from doctrinal scholarship and pushed to develop broad overarching and original theories for what the law should be.  Constitutional scholarship in particular is increasingly focused on theory and less on the law.  In some corners, it’s more important to reconcile one’s claims with the writings of John Rawls than the opinions of John Roberts.

This divide explains why so many legal academics were dismissive of some of the concerns raised in this week’s oral arguments, such as the need for a limiting principle.  The Solicitor General’s office has taken this concern seriously from day one, as have a few liberal legal academics (e.g. Neil Seigel, Michael Dorf  whereas others, such as Andrew Koppelman, have been sneeringly dismissive of this argument from the get-go.  Even if Koppelman were right as a matter of first principles, he’s clearly wrong as a matter of current doctrine as understood by the current Supreme Court, though you wouldn’t know it from what he’s written.

Another factor that contributes to this problem is the relative lack of ideological diversity within legal academia.  The current Supreme Court has a right-leaning majority, but legal academia leans decidedly to the left.  On many faculties their are few, if any, professors with any particular appreciation or understanding (let alone sympathy) for the jurisprudential views of a majority of the current justices.  This means that when ideas are floated in the faculty lounge, they may get a far more sympathetic hearing than they would ever receive in court.  So, for instance, it’s easy for Jack Balkin to dismiss an argument premised on Bailey v. Drexel Furniture because it’s a Lochner-era decision, even though Bailey remains good law.  A practicing lawyer would have been less likely to make this mistake.  Indeed, the SG actually cited Bailey approvingly this week in his argument before the Court.

In teaching our students to be effective lawyers it is important that we teach them how to understand opposing legal arguments on their own terms.  Effective appellate attorneys are conscious of this problem and devote substantial energy trying to get inside the minds of their opponents.  As I’ve heard Paul Clement (among others) explain, you can’t effectively advocate your own position until you truly understand the other side.  This can be difficult to do, particularly when we have strong feelings about a subject.    Someone who believes the PPACA is a long-overdue step toward remedying the profound injustices of the American health care system is not predisposed to embrace arguments that the PPACA is unconstitutional.  And if those same academics both lack colleagues with opposing points of view and have no particular professional interest in making sure they fairly consider the other side, it is easy for them to overlook the strength of opposing arguments and reduce them to caricatures.  Ridiculing the need for a limiting principle or other anti-mandate arguments may get approving nods in the faculty lounge, but, as we saw this week, it won’t receive an equally warm welcome in court.

UPDATE: Peter Suderman suggests another possible explanation:

What can explain liberals’ widespread failure to anticipate the Court’s wariness of the mandate? Research conducted by University of Virginia psychologist Jonathan Haidt suggests one possible answer: Liberals just aren’t as good as conservatives and libertarians at understanding how their opponents think. Haidt helped conduct research that asked respondents to fill out questionnaires about political narratives—first responding based on their own beliefs, but then responding as if trying to mimic the beliefs of their political opponents. “The results,” he writes in the May issue of Reason, “were clear and consistent.” Moderates and conservatives were the most able to think like their liberal political opponents. “Liberals,” he reports, “were the least accurate, especially those who describe themselves as ‘very liberal.’”

I’ve certainly witnessed the phenomenon Haidt describes, but generally assumed it was limited to certain contexts in which there are numerical imbalances between those on the left and the right that affects the degree of interaction people have with those of differing views. I will be curious to read more about this research and the limitations of its findings.

Following up on Jonathan’s post below, I’m not terribly worried about warnings from the left that a ruling against the ACA will undermine the Court’s legitimacy.

Who, after all, is going to lead the charge against the Court?  Liberal journalists like Linda Greenhouse and Dahlia Lithwick, whose human capital is invested in covering the Court?  The fraternity of elite liberal  lawyers who served as Supreme Court clerks, for whom undermining the Court’s legitimacy means undermining the value of their own prized credential?  Liberal constitutional law professors, who are as invested as anyone in the Court’s significance?  (It’s hard enough to get people to read one’s latest article on “A Kantian/Weberian Approach to the Fourth Amendment” when the Court is as important as it is now!)  Liberal activist groups and think-tankers, who still treasure the Court’s rulings on abortion, due process rights for terrorism suspects, term limits, and more, and who hope that a future Court will recognize a right to gay marriage?  Liberal Congressmen, when Congress’ popularity rating is well below the Court’s, and who have hardly shown themselves to be constitutional scholars? (Not to mention that journalists like Lithwick are on record suggesting that it’s “weird” for members of Congress to be considering the constitutionality of legislation.  “Isn’t it a court’s job to determine whether or not something is, in fact, constitutional?” wrote Lithwick.)

At most, a ruling against the ACA will have the same effect as Bush v. Gore or Citizens United, or Roe v. Wade and Boumediene for that matter; a fair amount of caterwauling, with the Court as an institution remaining unscathed.

UPDATE: I probably should add that I’m not at all sure the Court should have the level of legitimacy it currently has.  I think the other branches of government were meant to, and probably should, play a significantly larger role in constitutional decisionmaking than they currently do.  But as a positive matter, I don’t see the ACA litigation as a threat to that legitimacy.

FURTHER UPDATE: Oh, and of course, why undermine the Court’s legitimacy when your side is one appointment away from taking it over?

In his closing remarks at today’s oral argument over the Medicaid expansion, SG Verrilli  urged the Court, nothwithstanding concerns about limiting the federal government, to uphold not just the Medicaid provision but the entire ACA.  His rationale was in part that the people’s democratically elected representatives, after much thought, decided that the ACA was the best way to deal with America’s health care problems.  But he also referred, twice, to the fact that the Medicaid provision and the ACA more generally are important to “secure the blessings of liberty” for those individuals who would otherwise face health care crises.

I find this an odd strategic choice for Verrilli to have made in his very last remarks to the Court.  It’s not uncommon for liberals to refer to the Constitution’s preamble–We the People, in order to form a more perfect Union, establish Justice, ensure domestic tranquility, provide for the common defense, promote the General Welfare and secure the Blessings of Liberty–as a counterweight to the notion that the federal government’s powers are significantly limited by their enumeration.  But I’ve never heard of a conservative buying into the idea that the goals set forth in the preamble have any particular weight in constitutional interpretation, at least not when set in opposition to specific constitutional provisions.  Indeed, if anything, I think a typical reaction of Federalist Society types is that reliance on the preamble of the last refuge of those who don’t have a serious constitutional argument to make; “you mean you’re not an originalist or a textualist and you want us to engage in ‘living constitutionalism’ with regard to all sorts of very specific and substantive constitutional provisions, but then you want us to take the preamble seriously?”

This strikes me as part of a pattern I detect throughout this litigation and especially in the SG’s oral argument: the government’s lawyers seem to have no idea how conservative jurists typically think about  the Constitution.  Instead, they make arguments that would get almost unanimous nods of approval in the Harvard (or Columbia, the SG’s alma mater) Law School faculty lounge, but are not remotely persuasive to the other side.

Verrilli, after all, had months to come up with a succinct, plausible, limiting principle in defense of the individual mandate.  He should have been able to repeat this backwards, forwards, upside down and in his sleep. Yet he could barely explain himself yesterday, when given the opportunity by three different Justices.  Given his reputation as one of the country’s top appellate lawyers, a tempting explanation is that he couldn’t believe that anyone except perhaps Thomas was really concerned about that issue.

The Times has a nice front-page profile of Randy Barnett, discussing his role in crafting the challenge to the ACA.  I think the reporter did miss one very important thing, though: Randy’s representation of Angel Raich in Gonazlez v. Raich.  The standard view in the legal academy for many years has been that Congress’s Commerce power is virtually unlimited, with perhaps minor largely symbolic exceptions, as in Lopez and Morrison. But in representing Raich, Randy read all of the relevant cases closely, and discovered that they don’t quite say what people think and assume they say.  Sure, the precedents give Congress vast powers.  But they don’t control the outcome in the ACA litigation, or at least one can make a very powerful argument that they don’t.

I’m pretty confident that the challengers will get at least at least three votes, and I won’t be at all shocked if they get five.  The Times quotes professors Charles Fried and Doug Laycock as being very dismissive of the challenges, but if any of our readers happen to run into Fried or Laycock, I’d be curious to know the answer to this question: How many votes did you think Lopez would get, and how many votes did you think Raich would get?  If they are like the vast majority of their fellow constitutional law professors, the answers are (a) I didn’t take the Lopez case seriously enough to even spend time thinking about it (Lopez got five votes); and (b) either one or zero (Raich got three votes).

My book, Living With the UN: American Responsibilities and International Order, is now in stock and on-sale at the Hoover Institution Press website.  I have a copy in hand and I’m delighted to be holding it.  It’s not quite like holding your new baby – but for an inanimate object, it’s closer than you might have thought.

It will be a couple of weeks – April 17, I understand – before it is available through Amazon, Barnes & Noble, and other online sellers.  A Kindle edition will be released on April 17 as well.  My thanks to the Hoover folks, my editors, and others for their patience in this long running project.  Over the next couple of months, I will be talking about various themes in the book – UN-US relations, the nature of the UN, the different ways in which the US should engage (or not) with different parts and functions of the UN.  To start with, however, I wanted to go to a very different topic – this one about publishing, choosing a publisher, and why I chose the Hoover Institution Press.

This is a policy essay, not a “scholarly” book – it has about twenty footnotes for the whole thing, and a bibliography of secondary sources aimed to be accessible to those without a university research library or knowledge of how the UN online archives work.  My interest in this case is dissemination of the ideas in the book, not staking out academic turf.  So my general choices were three: One, find a commercial trade publisher, which seemed improbable given the subject matter, the way it is written, and my lack of trade press publishing in the past.  Two, find a university or academic press; this seemed like the obvious thing, and in fact there were several options that direction, notwithstanding that this is something like the opposite of the dense academic monograph.  Third, go with a think tank policy press in which case, given the history of the project and my affiliations, it would be Hoover.

The Hoover publishing folks have been marvelous – let me strongly recommend them if your publishing suits their programs.  They have been fabulous on production values, editing and copy editing, all the professional production elements.  They have been patient to a fault in waiting for the manuscript and letting me make later changes.  And they have excellent marketing staff and have a commitment to getting the book out there in a way that is only sometimes true of academic presses whose primary audiences are academics and university libraries.  But it is true that several academic presses are great in all these ways, too, so one has to ask, why consider a think tank press?  After all, isn’t a think tank press – even one associated with a university, like Hoover – taking a hit in academic prestige and respectability?

(Added: What I mean by ‘academic prestige’ here is that a press like, say, Cambridge UP conveys a signal to other academics that the book has been vetted for scholarship, etc.; and so, if I were seeking tenure or something similar, Cambridge would send an important signal.  Think tank presses, even when associated with a university such as Hoover and Stanford, send a signal of a political program associated with policy advocacy.  Since this is precisely what my book does and proposes to do, I’m fine with this and, anyway, I’ve got tenure.  Not everyone is in that signaling position.  If one reads through numbers of the Hoover Press books, you’ll see that they have a very high level of scholarship and intellectual quality – mine is an exception for being far more an essay – on things running from the Taylor Rule to Congressional intelligence oversight – but are written much more succinctly and clearly, and never consist of a dissertation-turned-monograph destined never to be checked out of the university library.  All of which is a plus for me, but then … I’ve got tenure.)

I thought carefully about these issues before choosing to go with Hoover.  In part this is a matter of how one sees academic prestige in public international law and, particularly, international organizations – which are, after all, human institutions and not purely legal propositions.  The human experience of them matters – at least if you want to say the things about them that I say in this book.  I had a long career in the human rights and international NGO world before coming to teach in my mid-forties, dealing with international organizations frequently, and whether in private or public law, I have a relentlessly practical streak that, at least in inherently political fields such as public international law, can’t see formal legal categories as dispositive.  International law for me is always fused with pragmatism (to draw from Michael Glennon’s fine book on this topic), politics and diplomacy, realism – policy, in other words.  But formal academic “brilliance,” to put the question of academic prestige in that way, likewise requires a more formal (and closed) system that allows one to show in some surprising and (one hopes) useful way that x is true and not y.  Policy, on the other hand, is about criteria of plausibility, not truth formally as such or purely for its own sake or, frankly, sheer marvelousness in reasoning.  One can do that in many areas of domestic law, because the legal framework drives the outcomes as such, but not in my field.

So prestige is not precisely my aim because I don’t think the subject matter or the writing work to that end.  This is not to say that it has not been researched with the same care that the purely scholarly work would have – on the contrary, it is over-researched for such a short book, and it is also infused with a large number of interviews and discussions of a more journalistic nature than would drive a purely academic book.  I will say that it wears its substantive learning deliberately very lightly.  I spent a lot of time a few years ago understanding the UN budgeting, accounting, and fiscal control systems – such as they are – from the inside out, and I am pretty certain I am the only public international law academic ever to have done so, at least among the Americans.  But if prestige in the sense of building my own academic capital is not the issue here, then what do I want?

Dissemination, mostly.  I want to get this book out into the hands of a couple of audiences: the Washington and international organization policy audiences; the international NGO world; academics in international law, organizations, politics, and international relations; both the Obama administration (despite this book’s many criticisms) and the Republican campaign; and finally classrooms at the undergraduate, public policy and graduate school, and law school levels. The key issue there is price.  The book retails directly from the Hoover site for $19.95.  Hoover could sell it for more, but it is in the business of dissemination of ideas too – it and I are aligned. By contrast, the decisive factor for me in deciding what press was price – the other publishers wanted to sell at minimum $35, in several cases $40.  I’m not sure anyone would want to adopt this as a text in a class on international organizations – not as the main text, but as the short, fairly readable critique and counter-view – but I can’t imagine anyone wanting to adopt it at $40 as a supplemental text.

It is true that everyone will discount, starting with Amazon and Barnes & Noble.  But I think that just gets it down to $20 – down to where Hoover starts its pricing.  Whereas I suspect that Amazon will discount the book very quickly to below $15, and I saw on a B&N page that it would sell at $13.50 – straight out of the box.  Now, if I made my living selling books or if Hoover made its living publishing them for a profit, this would be a big problem.  But we are both in the ideas-dissemination business.  We can live with this.  I think people can be persuaded to take a look at this book with a $13 price point (in hard cover, let alone Kindle), whereas at over $20 that is not nearly so likely.  Moreover – and this is very cool – at some point down the road, in a year or two, as sales dry up, Hoover will make the book available free as a pdf off its website.  So if your priority is dissemination of ideas and the book, rather than academic signaling and red queen behavior, this is not a difficult call.

Let me invite your ideas on how I should market this book.  If my aim is dissemination of ideas, getting the book and its ideas out there, both into policy-maker and influencer hands as well as a broader university and interested-public audience, what should I do?  For this kind of book, we are in somewhat uncharted territory.  I’m not self-publishing a Kindle romance novel and this book is not coming from Penguin Press from an established writer with a track record and some built-in audience.  I want to take advantage of social media and the new word of mouth it implies … tell me what my marketing strategy should be.

I have an op-ed up at Jurist Forum.  Here’s how it starts:

With the US Supreme Court poised to decide whether the Affordable Care Act’s (ACA) individual mandate is unconstitutional, the ghost of the notorious 1905 Supreme Court decision in Lochner v. New York hovers over the case. Invalidate the mandate and you are resurrecting Lochner, legal briefs supporting the government argue.

Yet the holding in Lochner, which found that the Due Process Clause of the Fourteenth Amendment protects a robust right to “liberty of contract,” was overruled decades ago and is not at issue in the health care litigation. Plaintiffs have challenged the individual mandate primarily as being beyond Congress’s Article I, Section 8 power to regulate interstate commerce. They argue that this power must have substantive limits, or the Constitution would have simply given Congress the power to regulate everything.

So why are defenders of the mandate so eager to talk about Lochner? The answer lies in the peculiar status of Lochner in American constitutional discourse.

A delegation of Israeli Jews representing the “Alliance of Israeli LGBT Educational Organizations, a network of groups that support LGBT youth and families,” was visiting the West Coast last week.  The Israeli delegation’s visit was sponsored by A Wider Bridge, which describes itself as “a San Francisco–based national organization that seeks to educate people about Israeli LGBTQ society, politics, and culture, and to build connections between the North American LGBTQ and Jewish communities and the LGBTQ communities of Israel.”  But in response to pressure from some left-wing activists, Seattle’s LGBT commission canceled a scheduled reception for the visitors.

Several aspects of this story deserve attention: the cravenness of the commission in bowing to a few vocal activists, the absurdity of a transgender activist leading the charge against Israel, a liberal nation on such issues, after a visit to the West Bank, where his life expectancy if he were an “out” local would be calculated in months, if not days.

But there is also a law professor angle to the story.  According to the Seattle Times, “the first sign that the [Israeli] group would encounter trouble in Washington state began with a posting Monday on the Facebook page of Seattle University law professor [and the transgender activist noted above] Dean Spade, in which he called the delegation’s visit ‘apartheid and occupation’ wrapped in the rainbow flag.” The text of Spade’s letter to the Commission, in which he urges the commission to cancel the event, can be found here.

So Professor Spade is an advocate of  shunning and boycotting on political grounds Israeli LGBT activists who came to talk about LGBT issues because of his opposition to Israeli government policy.  I wonder how Professor Spade would like it if those in the legal community who find his views on Israel and Israelis as morally repugnant as he finds Israeli policies–conference organizers, law review editors, and so on–turned his own tactics against him and similarly shunned him? If anything, such a boycott would be better-grounded, as it would be based on his personal political views, rather than guilt-by-association based on his nationality.

I’d oppose such a reaction on practical grounds: once members of the legal academy got into the business of boycotts, it’s unlikely that the limits would be drawn sensibly [and indeed, there are already plenty of legal academics who in a non-sensible and haphazard way engage in various levels of boycott against people they disagree with].  But I have to admit not being able to think of any moral reasons against hoisting such individuals on their own petards.

UPDATE: A pretty good indication of where Spade is coming from politically can be found in this short essay, in which he criticizes the movement for same-sex marriage as “part of a conservative gay politics that de-prioritizes people of color, poor people, trans people, women, immigrants, prisoners and   people with disabilities.” Gay marriage is a distraction from spending one’s time, as one should, “opposing the War on Terror and all forms of endless war; supporting queer prisoners and building a movement to end imprisonment; organizing against police profiling and brutality in our communities; fighting attacks on welfare, public housing and Medicaid; fighting for universal health care that is trans and reproductive healthcare inclusive; fighting to tax wealth not workers; [and] fighting for a world in which no one is illegal.”

Yesterday, I got a request from the Harvard Law Review to undertake an anonymous “peer review” of an article HLR is considering for publication.  I thought I’d share my response, below.

In considering your request, I had in mind some comments that Professor Stephen Bainbridge has made about the one-sided nature of these referee requests [here is one of Bainbridge's posts on the subject, he had an earlier more extensive one that I can't find].  I thought Steve was a bit too prickly about it, but I decided to look up who the Harvard Law Review has been asking to comment on its articles in its on-line publication [Note: HLR can claim that it picks the best submitted articles from its pool regardless of authors' affiliation, but it clearly has discretion with regard to whom it invites to comment on articles].

In reverse chronological order, I see Harcourt (Chicago),  Spiesel (research scholar Yale), Graber (Maryland), Levinson (Texas), Slobogin (Vanderbilt), Sherry (Vanderbilt), Tushnet (Harvard), Strauss (Chicago), Lawson (B.U., formerly Northwestern), Ackerman (Yale), Morrison (Columbia), Chafetz (Cornell), Sachs (Duke), Vazquez (Georgetown).  The logical conclusion is that the editors of the Harvard Law Review think that it’s okay to ask professors not affiliated with top 20 law schools, like George Mason, to be anonymous referees for articles (as I already was last year for the [___] piece), but that with very rare exceptions you don’t think we’re good enough to grace even your on-line “pages.”  This, I also note, was not true until recently, as in the past you published authors from U. Baltimore, Cardozo, Temple, and other non-elite law schools, so it’s not like it’s impossible to find competent and willing authors from such schools.

So, while I do appreciate the nice review you published of my book in the current volume, I’m afraid I’ll have to decline the opportunity to review this article; consider it an informal boycott until the HLR is willing to ask the likes of me to participate in a non-anonymous way.

The point, if I may mimic the language of some famous Harvard professors, is that the law review has chosen to reinforce status hierarchies, and yet expects those disadvantaged by those hierarchies to be complicit in their perpetuation, while not even recognizing their own abnegation and exploitation.

The quotation in question is “The Arabs will have to go, but one needs an opportune moment for making it happen, such as war.”

With regard to the first part of the quotation, “The Arabs will have to go,” this piece makes a strong case that he, at best, relied on a mistranslation of the Hebrew by others rather than going back to the original source (the mistranslation saying the exact opposite of the original writing’s “We do not want and do not need to expel Arabs and take their places”).

With regard to the rest of the quote, the ethics committee at Pappe’s University of Exeter determined that this was a “fair and accurate paraphrase” of sources relied upon by Pappe (without specifying the sources), but was mistakenly put in quotes.

This raises the obvious question of how this could be a fair and accurate paraphrase if the first part of the quotation was incorrect.  On that point, the ethics committee apparently concluded that the fact that others incorrectly “translated” the first part of the quotation even more egregiously exonerates Pappe.

I wasn’t aware of this controversy previously, and I haven’t gone back to the original Hebrew sources.  But if the linked-to piece is correct, it looks like Pappe took a bogus English translation of a Ben-Gurion quote that had been repeated by others, then “paraphrased” some other material that he nevertheless put into quotation marks, and combined them into a quotation falsely suggesting that Ben-Gurion had a longstanding to expel the Arabs of Palestine.

In fairness to Pappe, in the editing process things like this can happen inadvertently, and can especially happen if the mistake creates a quotation that seems perfectly sensible to the author based on his ideology–one is much less likely to carefully check a quotation that “sounds right” than one that doesn’t.  But it certainly doesn’t help Pappe’s case that he attributes the difficulty this has caused him not to his own errors, but to the machinations of “Zionist hooligans,” [UPDATE: fwiw, an old Soviet propaganda term used to denounce American Soviet Jewry activists as well as Israelis] which hardly makes him sound like an objective scholar pursuing the truth.

Joshua Thompson of the Pacific Legal Foundation has an interesting response to my post arguing that a victory for the plaintiffs in the Fisher v. Texas case could turn out to be a pyrrhic victory for opponents of racial preferences, if it is coupled with an endorsement of the Texas ten percent plan and other “facially neutral” efforts to extend racial preferences to certain minority groups without doing so openly.

In my last post and an earlier 2006 critique of the ten percent plan, I argued that measures like the ten percent plan are in many ways worse than traditional explicit affirmative action policies because they are less transparent and create more perverse incentives.

Thompson agrees with several of my points, but also takes issue with others. Here, I focus mostly on the areas of disagreement.

Thompson first argues that the ten percent plan actually is transparent because “finishing in the top ten percent of your high school class is an objective (race-neutral) criterion that can be judged on its face, and permits no obfuscation by university admissions officials.” It is true that the ten percent plan is “objective” in the sense that finishing in the top ten percent in your high school class is a verifiable fact. What is not transparent, however, is the racial motivation behind the adoption of the ten percent plan in the first place. With traditional affirmative action, the racial goal is clear and unambiguous. With the ten percent plan, administrators can and do pretend that they aren’t really doing anything racially motivated at all. In addition, it is difficult for the public to judge how much academic merit is being sacrificed by preferring people who graduated in the top ten percent at weak high schools over those who placed at lower percentiles at stronger ones.

Thompson also suggests that traditional affirmative action programs may sacrifice more academic merit than the ten percent plan does because “Preferences, definitionally, let in those who are less academically qualified. Under a preference regime, someone is getting in because of their skin color. Under the Top Ten Percent Law someone is getting in because of their grades.” Actually, under traditional racial preferences, skin color is only one of several reasons why affirmative action beneficiaries get in. They also must have at least some academic qualifications, albeit lower than those required of other applicants. More importantly, this ignores the reason why the ten percent plan has a much greater negative impact on academic merit than traditional affirmative action: the former affects far more applicants. As I explained in my 2006 post:

[T]he ten percent plan affects a great many more admissions decisions than even the most rigid old-style affirmative action systems do. Rarely, if ever, do traditional affirmative action plans determine the admission of more than 15-20% of a school’s student body. By contrast, at the University of Texas at Austin, over 70% of the student body was admitted under the ten percent plan. While some of these students would surely have gotten in anyway, it is highly likely that the ten percent plan leads to much larger sacrifices of academic merit than do racial preferences similar to those used at most other academic institutions.

Finally, Thompson partially rejects my point that facially neutral means of preferring some racial groups over others are just as unconstitutional as racially explicit ones. In response to my historic examples of facially neutral poll taxes and literacy tests that were used to exclude black voters in the Jim Crow south, he notes that “poll taxes and literacy tests were never ruled per se unconstitutional.” This is true, but irrelevant. They are unconstitutional in cases where they were enacted for the deliberate purpose of excluding black voters (or voters of any other particular racial or ethnic group). Similarly, the ten percent plan would be constitutional if it were enacted for nonracial reasons. But if enacted for the purpose of advantaging African-American and Hispanic applicants over members of other racial and ethnic groups, it is unconstitutional. Ultimately, however, I am not sure that we disagree very much on this aspect of the issue, since Thompson also states that the ten percent plan may be unconstitutional because “[i]t was undoubtedly passed in order to increase racial diversity throughout the University of Texas.”

Where we continue to differ is over the question of whether a world in which racial preferences are pursued through “facially neutral,” nontransparent means is preferable to one where such preferences are in the open for all to see, and inflict less social harm. I fear that if the Supreme Court strikes down the present University of Texas affirmative action plan, but endorses the ten percent plan and other similar programs, we will end up with a worse situation than one where explicit affirmative action plans remain legal.

UPDATE: Thompson responds further here. He continues to argue that the ten percent plan is transparent because “[e]veryone knows that the Top Ten Percent Law was adopted with the express intent to increase racial diversity at the University of Texas.” Everyone who follows these issues closely does indeed know that. But much of the public is rationally ignorant about politics and is unlikely to know that. Moreover, as time passes since the adoption of the plan, public memory of the reasons for its adoption is likely to fade. By contrast, the racial reasons for traditional affirmative action are more clear. Even people who know little about politics can easily grasp that an admissions policy that openly factors in race is a racial preference.

Thompson also argues that the ten percent plan is more defensible because administrators’ hands are tied under it. To my mind, it is irrelevant whether a racially motivated admissions plan was adopted by the state legislature, university administrators, or some combination of the two.

In the second part of his response, Thompson claims that race is often determinative in admissions decisions under affirmative action. I never denied that this is true. But it’s also true under the ten percent plan. If not for racial considerations, there would be no such plan, and thus there are numerous University of Texas students who have been admitted or rejected because this policy was enacted for racial reasons. Race was no less determinative for them than for those admitted or rejected because of traditional affirmative action.

Finally, and most importantly, Thompson takes issue with the idea that “facially neutral” policies enacted for racial reasons are unconstitutional. There is actually a good deal of Supreme Court precedent on this point (the leading modern case is Village of Arlington Heights v. Metropolitan Housing Development Corp.). To oversimplify slightly, these cases hold that a racially motivated policy is unconstitutional unless the government can show that it would have adopted it even absent the illicit racial motivation. In many cases, of course, it is very hard to prove that there was any racial motive in the first place. In the case of the ten percent plan, however, the racial motive is very clear, and Thompson does not deny it. More to the point, I think these Supreme Court precedents are roughly correct. The purpose of the Equal Protection Clause is to forbid racial favoritism by state government, regardless of whether that favoritism takes the form of racially explicit ones or “facially neutral” ones where the real purpose of the policy is hidden.

Thompson argue that “The question of legislative intent cannot be the only factor that determines a law’s constitutionality. If so, we would have to scrutinize the intent of the legislature (or bureaucrat) when passing any legislation (or regulation) whatsoever.” Of course it is not the only factor. Sometimes policies can be unconstitutional for reasons having nothing to do with motive. However, racial motivation is a relevant factor, and in many cases a decisive one. Recognizing that does not require us to scrutinize the intent behind every law. In many cases, scrutiny is not needed because there is no evidence of any improper motive.

Thompson asks “under Professor Somin’s argument, how could you ever use race-neutral measures if they are motivated by a racial purpose?” By and large, you couldn’t, except perhaps if you could prove that the government would have adopted the same policy even without a racial intent or if the policy in question would be constitutional even if the use of race were explicit. This is a feature of my analysis, not a bug. “Race-neutral” measures motivated by a racial purpose are just another form of racial discrimination and should be treated as such.

In the last part of his post, Thompson tries to distinguish literacy tests and poll taxes from the ten percent plan, on the grounds that the former were unequally applied as well as adopted for the purpose of disadvantaging blacks (e.g. – blacks were often forced to take more difficult tests than whites). But surely literacy tests are unconstitutional even when applied equally if their purpose is to disadvantage black voters (e.g. – because the legislature knows that more blacks are likely to fail the test than whites and adopted the policy for that reason). Such a law would surely be ruled unconstitutional by the courts. Thompson contends that “Only those laws that do, in fact, discriminate are unconstitutional.” True enough. But a law can “discriminate” in fact even if it does not explicitly mention race.

In general, I am not a fan of the “diversity” rationale for affirmative action, and I have considerable sympathy for plaintiffs’ position in Fisher v. Texas, the University of Texas affirmative action case that the Supreme Court recently agreed to hear. However, in this recent Slate article, Richard Thompson Ford, a leading defender of affirmative action, puts his finger on one aspect of the case that gives me some pause:

Here is where the one potentially important difference between Grutter [v. Bollinger] and Fisher comes in. Unlike the University of Michigan Law School, the University of Texas had eliminated race-based affirmative action and achieved some measure of racial diversity without it, using a race neutral “10 percent plan,” in which the university accepted the top 10 percent of students from every school district in the state. But after Grutter reaffirmed the constitutionality of affirmative action, U.T started using racial preferences in addition to the 10 percent plan. The Fisher plaintiffs argue that this was an error: Because the 10 percent plan produced a diverse student body, U.T. didn’t need racial preferences too. So Justice Kennedy [the key swing voter on the Court] might now decide that race-based affirmative action is unconstitutional whenever race-neutral policies, like the 10 percent plan, alone can further diversity…..

Suppose the conservatives have their way and Court does bar any consideration of race in admissions. Would this really settle the question either? Champions of class-based affirmative action like the Texas 10 percent plan. But if the end goal for such a scheme is racial diversity, isn’t it just as suspect, constitutionally speaking, as an explicitly race-conscious policy?

If the Court rules that explicit race-based affirmative action is unconstitutional where “diversity” can be achieved by facially neutral plans like the ten percent plan, the result is likely to be a raft of admissions policies that appear race-neutral, but actually are deliberate attempts to achieve a particular racial balance by relying on admissions criteria that correlate with race (which is the reason why the ten percent plan was enacted in the first place, after a federal court invalidated the University of Texas’ racially explicit affirmative action policy in 1996). In this way, racial preferences in admissions will not be eliminated, but will merely be driven underground and become less transparent.

In this 2006 post, I explained why the Texas ten percent plan is actually much worse than traditional affirmative action, on a variety of grounds. And if you believe that racial preferences in admissions are unconstitutional, you should find the ten percent plan and other similar policies equally objectionable:

But if it is morally wrong to aim for a given racial balance in a state university student body by using explicit racial preferences, why is it not equally wrong to intentionally try to achieve the same effect through indirect, facially “neutral” means? In the days of Jim Crow, southern states often used facially neutral policies such as literacy tests, poll taxes, and peonage laws to disadvantage blacks. Few today would argue that these policies were somehow morally superior to those Jim Crow laws that discriminated against blacks through explicit racial classifications. If, as critics of affirmative action claim, explicit affirmative action preferences are morally wrong [and unconstitutional] for the same reason that Jim Crow laws were wrong, then “facially neutral” affirmative action systems such as the Texas ten percent plan are wrong for the same reasons that the facially neutral means of propping up Jim Crow were.

If the Supreme Court strikes down explicit race-based affirmative action but endorses the ten percent plan and other similar “race-neutral” subterfuges, we might end up with the worst of both worlds. Racial preferences in university admissions would not disappear. They would instead become less transparent and more costly to society by creating more perverse incentives like those of the ten percent plan.

Obviously, the Court need not adopt this kind of reasoning if it chooses to strike down the Texas plan. It could instead simply rule that admissions policies that deliberately seek to advantage some racial groups over others are subject to strict judicial scrutiny regardless of whether or not they explicitly mention race. But I suspect that Justice Kennedy, and possibly some of the other conservative justices, might instead point to the ten percent plan as a superior alternative to racially explicit affirmative action policies – thereby incentivizing other state universities to adopt admissions policies that seek racial balancing while pretending to be race-neutral on the surface.

UPDATE: I have reworded a few parts of this post for clarity.

UPDATE #2: Some commenters are wrongly suggesting that I’m arguing that the ten percent plan is unconstitutional merely because it benefits one racial group more than another. I am not claiming any such thing. The constitutional problem with the ten percent plan is that it is a deliberate effort to help some racial groups at the expense of others. Intentionally structuring an admissions policy for the purpose of advantaging a particular racial group (and disadvantaging others) is different from an unintended incidental effect. Virtually all government policies have disparate effects on some racial or ethnic groups. But, at least in this day and age, there are many fewer that are deliberately designed to advantage some racial groups at the expense of others.

To extend the Jim Crow example, a literacy test for voting is not unconstitutional merely because fewer blacks pass the test than whites (though, today, it would still violate the Voting Rights Act). What made such tests unconstitutional, at least in the South, is that they were intentionally enacted for the purpose of excluding blacks from the ballot.

Just as one can imagine a ten percent plan adopted for entirely nonracial reasons, one could also imagine a literacy test enacted for reasons having nothing to do with race (e.g. – because literate voters are likely to be more knowledgeable than illiterate ones). In reality, however, both the ten percent plan and most literacy tests were enacted primarily for racial reasons. That makes them constitutionally suspect.

Paul Caron collects them here.  The growth of these fellowships has been quite remarkable.  I managed to scrounge one in 1994 at Columbia, but that one was funded specifically for me for that year only, and it was unusual in those days to do a fellowship before entering the academy.  Now, it’s commonplace, almost expected unless a candidate has a Ph.D. in a law-related subject area, and maybe even then.

One interesting aspect of the growth of fellowships is that it’s happened with virtually no discussion or debate on what one might call the “distributive consequences” of this growth.  In my day, the typical faculty candidate went to an elite law school, clerked for a federal judge, and then worked at a big-city prestigious law firm for two to four years.  While this often involved some moving around, it was entirely possible to, for example, go to law school at Columbia, clerk on the Second Circuit, work at Skadden’s New York office, and then become tenutre-track law professor.

Nowadays, a non-uncommon path is elite law school to federal clerkship to big-city law firm to fellowship to visiting assistant professorship, then tenure track position. Or perhaps a candidate will have pursued a masters degree or Ph.D. instead of, or sometimes in addition to, either the VAP or fellowship.

So who loses from this system, relative to the old system? Candidates with families, because it’s much easier to bounce around from place to place if you don’t have kids; potential candidates with spouses or serious significant others with high-powered but not especially mobile jobs–and such candidates are far more often women than men; and candidates from relatively modest economic backgrounds, who are likely to be far less willing and able to take relatively low-paying fellowships and VAPs, much less pursue an additional degree, than are their wealthier classmates.

Imagine, if you will, a woman who is about to graduate from Harvard Law School.  She has a First Circuit clerkship lined up. Her husband is in the first year of a very prestigious residency at Massachusetts General; her four-year-old and two-year-old are thriving while being cared for to a large degree by her mother-in-law, who lives in Newton; and she and her husband collectively have $300,000 in student loans.

Twenty years ago, she could have gone to Ropes & Gray for three or four years, made a ton of money, paid down some of her debt, and then gone on the teaching market when her husband was available for a permanent position.  Nowadays, she’d have to think about getting a fellowship a year or two after her clerkship.  How can she afford it?  What if she can’t find one at in the Boston area?  What if she finds one elsewhere and her husband doesn’t want to give up his residency? What if she manages the fellowship, but it only leads to a VAP offer in god-knows-where?  She might just decide that the balance of things weighs against pursuing an academic career, in a way she wouldn’t have under the more traditional system.

That’s not to say that current expectations don’t have their advantages–if they didn’t they wouldn’t have proliferated so quickly and widely.  But  I don’t think much thought has been given to the consequences I describe above.

NOTE: I speak from experience here.  Of George Mason’s eight untenured faculty  who have started since 2007, two completed both a master’s degree and a  fellowship (one of them in two different cities, indeed two different countries), one held two research fellowships, one had a VAP for two years, one had a  fellowship (I think for two years), one had two different VAP positions in two different cities, one completed a Ph.D. and later held a fellowship in a different city, and only one took the once-typical law school to clerkship to law firm to law professor route–and even he has law degrees from schools in two different countries, Australia and the U.S.

Congratulations to my former GMUSL student and George Mason alum Josh Blackman, who will be a tenure-track lawprof at South Texas Law School starting this Fall. Congratulations also to Brian Frye, who was my research assistant when I visited at Georgetown Law Center in 2003. Brian will be starting a tenure-track gig at University of Kentucky this Fall. Brian joins former Bernstein RAs Jeffrey Jackson of Washburn Law School (from the same Georgetown semester) and Nate Oman of William and Mary (who helped me with You Can’t Say That! as a college student) in the legal academy.

Finally, congratulations to GMUSL alum and current George Mason visiting assistant professor Jeremy Kidd, who has accepted a tenure-track appointment at Mercer Law School. I think this is the first time George Mason has placed two alums in tenure-track academic posts in the same year.

I am sorry to be the bearer of bad tidings during the holiday season. Unfortunately, however, I recently learned that University of Illinois law professor Larry Ribstein passed away suddenly earlier today. Larry was a well-known and highly regarded legal scholar – one of the best of his generation. He wrote extensively on corporate law, federalism, and the future of legal education.

No doubt there will be many analyses and appreciations of Larry’s outstanding contributions to scholarship over the coming days and weeks. My personal favorite among his many excellent works is his recent book The Law Market (coauthored with Erin O’Hara), which is perhaps the best recent book on the potential benefits of competition between state legal systems in American federalism. Larry is also well-known in the legal blogosphere for his insightful posts at Truth on the Market, where he wrote an excellent post on ABA accreditation of law schools just a few days ago.

I have known Larry professionally for several years, and he was always a courteous and helpful colleague, including for much younger and lesser-known scholars. I saw him give a workshop presentation just a couple months ago, where he was, as always, in excellent form. His unexpected passing comes as a terrible shock. He will be greatly missed by his family, friends, and colleagues.

UPDATE: The official memorial notice from the University of Illinois is available here.

David Segal’s recent New York Times article on ABA accreditation of law schools makes the important point that the ABA uses the accreditation process to reduce competition for its members by artificially reducing the number of law schools, and thereby eliminating potential competitors for its members. This interacts with laws that require consumers to rely on lawyers even for relatively simple tasks that in many other countries are performed by paralegals and the like. The end result makes even basic legal services extremely expensive, especially for the poor and the lower middle class:

[A new law school] needs the seal of approval of the American Bar Association, the government-anointed regulator of law schools.

That means complying with a long list of standards that shape the composition of the faculty, the library and dozens of other particulars. The basic blueprint was established by elite institutions more than a century ago, and according to critics, it all but prohibits the law-school equivalent of the Honda Civic — a low-cost model that delivers.

Instead, virtually every one of the country’s 200 A.B.A.-accredited schools, from the lowliest to the most prestigious, has to build a Cadillac, or at least come close. Duncan’s library costs $750,000 a year to maintain — a bargain when compared with competitors….

The lack of affordable law school options, scholars say, helps explain why so many Americans don’t hire lawyers.

“People like to say there are too many lawyers,” says Prof. Andrew Morriss of the University of Alabama School of Law. “There are too many lawyers who charge $300 an hour. There aren’t too many lawyers who will handle a divorce at a reasonable rate, or handle a bankruptcy at a reasonable rate. But there is no way to be that lawyer and service $150,000 worth of debt.”

This helps explain a paradox: the United States churns out roughly 45,000 lawyers a year, but survey after survey finds enormous unmet need for legal services, particularly in low- and middle-income communities…..

It’s not just that many lawyers are prohibitively expensive. It is that when it comes to legal expertise, there are not a lot of cheaper alternatives — not in the United States, anyway. Britain, on the other hand, has a long menu of options, including a tier of professionals called legal executives, who are licensed after getting the equivalent of a community college degree. Counsel is also

available from nonlawyers at a variety of nonprofits. And you can buy a simple divorce over the Internet for a set fee, or pay for customized legal advice, online or by phone.

“In the U.S., people and businesses have only one place to go for all their legal help — lawyers who graduated from an A.B.A.-approved law school and who follow mostly A.B.A. rules about how they run their practice,” says Gillian Hadfield, a professor at the Gould School of Law of the University of Southern California. “Everyone else who offers legal advice is engaged in the unauthorized practice of law….”

Consider business schools, [Emory law professor] George Shepherd says.

If your dream is to work at Goldman Sachs, “you can go to Harvard Business School and spend a couple hundred thousand dollars, in tuition and forgone earnings,” he says. “If you just want to move up the management ranks at Macy’s, you can take part-time evening classes and spend $10,000 for a degree. The part-time school may not be accredited, but this gets to the difference — state law says you can become an attorney only if you attend an accredited law school. There’s no law that says you need to attend an accredited business school in order to practice business.”

Professor Shepherd says aspiring lawyers should have the same choices as aspiring executives and managers….

A result is an expensive quandary for potential clients, says Professor Morriss of the University of Alabama. “Maybe you need a plumber,” he says. “But you have to hire a brain surgeon.”

These are not new arguments. Critics of the ABA accreditation system have making the same points for years. Milton Friedman did so as far back as the 1950s. I myself did called for the abolition of the ABA’s legal role in the process in this 2006 post:

To my mind, the problem goes beyond the shortcomings of specific ABA standards. The real mistake is allowing an organization with a blatant conflict of interest to take over the accreditation role in the first place. As an interest group representing lawyers, the ABA has an obvious stake in limiting entry into the profession so as to decrease the competition faced by its members. One way of doing so is by restricting the number of accredited law schools, at least in the vast majority of states that require all or most aspiring lawyers to attend an ABA-accredited school in order to take the bar exam. We would not allow an organization run by Chrysler, GM, and Ford to set regulatory standards determining who has the right to sell cars in the United States. Requiring ABA accreditation for law schools is the exact equivalent in our industry.

Although the New York Times article breaks little new ground, it has great value in bringing this issue to a wider audience.

I do have one possible quibble with the article. Segal implies (though he does not say so directly) that all or most existing law schools support the ABA accreditation system. This is far from universally true. In my experience, many administrators and faculty at relatively highly ranked schools (say the top sixty or seventy) either oppose the system outright, or at least would not object to liberalization of the rules. These schools don’t benefit much from excluding marginal new competitors, and the ABA accreditation process saddles them with unwanted expenses and administrative burdens. Harvard and Yale (or, for that matter, George Washington or George Mason) are not likely to lose students and faculty to startup law schools, even if the latter have lower tuition. By contrast, low-ranked schools (e.g. – the bottom 30-40%) tend to support ABA accreditation because they are the ones most likely to be threatened by new competition. Being a member of the ABA-sponsored cartel is often their most valuable economic asset, and they are loath to give it up.

I’m not suggesting that the higher-ranked schools are completely blameless. If more of their faculty and administrators were to speak out against the status quo, we might see greater pressure for change. Hopefully, Segal’s article will help generate a broader debate on the issue.

For DC-area readers who may be interested, this Friday the Federalist Society and the Heritage Foundation are co-sponsoring a debate on Fisher v. University of Texas, an important affirmative action case that the Supreme Court is now deciding whether or not to take.

The debate pits James Ho, counsel for the University of Texas in the case, and Loren Alikhan, counsel for the League of United Latin American Citizens (arguing for the University’s position) against Gail Heriot of the US Commission on Civil Rights and Roger Clegg of the Center for Equal Opportunity (arguing that the university’s plan is unconstitutional).

I previously blogged about Fisher here and here.

Interestingly, I have some connections to both sides in this debate. My wife is Gail Heriot’s special assistant/counsel at the US Commission on Civil Rights. Jim Ho (who later went on to become Texas’ state solicitor general) clerked for Fifth Circuit Judge Jerry E. Smith two years before I did, and interviewed me for the job before I was hired.