The Volokh Conspiracy

A couple of weeks ago I mentioned a new book on constitutional interpretation and language by my colleague, Washington College of Law professor Robert Tsai — Eloquence and Reason: Creating a First Amendment Culture.  Constitutional rhetoric and interpretation are not my areas, but I started reading the book and have found it to be a lively, provocative essay, though I don’t really feel competent to comment on the content deeply.

One thing I will say, though, is that I appreciate both the quality of writing in this essay, even as a non-expert, and also appreciate very much the method of the humanities that it represents.  I have thought that traditional methods of the humanities — the interpretation of text in its linguistic as well as historical richness — has suffered somewhat in legal scholarship in recent years under a certain economics-oriented reductivism.  That’s a broader topic for a different day, however.  But Robert Tsai is a gifted writer and thinker, and even as (maybe especially as) a non-specialist, his book is a pleasure to read.

The comments to my original post, in particular Orin’s question about results and rhetoric, caused me to go back to Robert Tsai and ask if he might give us a short statement on the book, and say something about the interpretive question.  Robert was kind enough to do so, and so I am putting up his short response here.  Robert — our thanks for joining us here at Volokh with a contribution!

Many thanks to Ken and everyone at the Volokh Conspiracy for the opportunity to say a few words about Eloquence and Reason.  The book examines First Amendment law as a cultural system: not simply a collection of legal decisions or even a normatively desirable set of substantive commitments, but also a shared political belief system and popular vocabulary.

Because the text of the First Amendment has never changed, those interested in constitutional transformation have always used text instrumentally to secure a hegemony of preferred values, outlooks, and modes of talking about the provision.  Whether insiders admit it or not, the task of judging involves sorting through competing claims to determine which cultural and political perspectives ought to be validated and which ones should be resisted.  Judges have always played a role in this social process, even if theirs is rarely the last word on a subject.  There is no such thing as neutral interpretation; there is only how transparent an interpreter chooses to be about her methodologies and substantive commitments.

Eloquence and Reason examines historical episodes in which activists, lawyers, and presidents such as FDR and Ronald Reagan worked to dislodge reigning constitutional ideas and reshape our understandings of free speech and religious freedom.  Then, as now, each party to a constitutional debate claims to bear the “authentic” or “correct” reading of the text.  Because my model of constitutional change is agnostic to political ideology, it allows anyone to try to speak on behalf of the people and their charter.  For the most part, such claims are filtered through existing institutions.

Two episodes taken up in the book may interest readers of this blog.  The first involves a wartime turnabout on whether the First Amendment should prevent public schools from punishing a student for refusing to salute the American flag.  Laying Gobitis (1941), where the Justices said no, and Barnette (1943), where the Justices changed their minds and said yes, side by side shows very different worldviews.

The first ruling prized unity, majoritarianism, and ritual nationalism enforced at the local level; whereas the second decision valued individual dissent, pluralism, and uncoerced political attachments.  Drawing on speeches and writings by FDR and high-ranking officials, as well as unpublished drafts of the Barnette decision, I argue that out-of-court statements had an impact in publicly recasting the constitutional stakes in the dispute.  The administration blamed the Supreme Court’s Gobitis decision for the persecution of Jehovah’s Witnesses and urged the Justices to overrule themselves.  Officials also aggressively presented the very values eventually ratified in Barnette, signaling that such values were crucial to the post-war legal and international order.  And they are to this day.

A second episode has to do with the Anti-Establishment Clause.  The “wall of separation” metaphor appeared as part of an official post-war strategy to keep the peace.  As originally conceived, Justice Black’s version of the boundary idea conveyed liberalism’s commitment to equal respect, to the protection and empowerment of religious minorities, and to guaranteeing a strong state uncorrupted or divided by religious strife.

Over time, these connotations were consciously reconfigured through litigation, activism, and the electoral process.  Through a process of composition, reaction, adaptation, and dissolution, the wall of separation began to acquire negative connotations.  Those outside of the courts began to say that the wall signified hostility or discrimination, oppression of religious minorities, and a state weakened by the alienation of its citizens. Eventually judges endorsed this way of describing the wall of separation, shunning it as a trope and divorcing it from their analyses of the controversies that arose.

A word about the causal connections between language, motivations, and outcomes [going to Orin’s comment/question — KA].  The mere existence of a legal discourse does not compel any particular outcome in a dispute.  That would run counter to the idea of “rhetorical freedom,” which even the Framers acknowledged would continue after the Constitution’s ratification.  Whatever a party’s instrumental reasons for taking position X, constitutional language circumscribes the range of options available for portraying X as a defensible position, thereby limiting the range of linguistic options.  Broader shifts in constitutional language reveal changes in a nation’s political beliefs, institutional priorities, and even how a community sees itself.

I’ve been traveling recently, and so have been away from posting.  One of the enforced virtues of traveling — one of the few virtues of traveling for me these days — is the plane flight with no internet.  And if the big guy in front of me reclines his seat, as he always does, I can’t even get to my computer.  So I read  on flights.  I should have some reading gadget, Kindle or whatever, but I’m not that far along yet, and for that matter I should get an economy class friendly little word-processor to use on flights, but I’m cheap.  Here’s a selection across the varied reading on my flights.  No particular theme or order, I’m afraid (on account of the mixed-up topics here, I think I won’t open to comments; too jumbled to be productive). Continue reading ‘Reading While Traveling, Hard Copy and No Internet’ »

I’m late ordering books for my spring class on private equity and venture capital, and am desperately trying to figure out if there might finally be a law school text on this topic.  The constraints are the following.... below the fold.  (ps.  The advice folks gave me on my earlier question re law and econ for a first year course was very helpful, thanks.) Continue reading ‘Private Equity Law Textbook? Desperately Seeking ...’ »

If you are going to be around Palo Alto next Thursday evening, you might consider attending a panel discussion on robotics and law at Stanford Law School.  I’ll be on a panel alongside some very interesting and knowledgeable folks taking up varied aspects of robotics (my particular interest is robotics and war, but the panel will be considering many areas of robotics).  The particulars are below the fold.

(Update:)  Here’s the assigned topic for comments, following up on Laura’s opening comment ... should the panel discuss the Three Laws?  Are they a useful ethical/legal frame for dealing with robots in various aspects of human life?  Did Asimov lead us all astray by proposing them?  Should we instead avoid discussing them altogether?  What would you propose would be a better set of principles/laws/guidelines for robot-human interactions?

(I’ll also be giving a lunch talk/discussion that same day sponsored by various student organizations at SLS specifically on robotics and armed conflict. And thanks Glenn for the Instalanche!)

Continue reading ‘Law and Robotics Panel at Stanford Law School’ »

This is coming more than a little late, as the book has been out for a few months, but I wanted belatedly to congratulate my Washington College of Law colleague, Robert Tsai, on his book Eloquence and Reason: Creating a First Amendment Culture.  I have it on my shelf for night reading, but unfortunately even my “free reading” time has been swept up in other things.  However, I note that it just received an enthusiastic review from Kevin Kosar in the Weekly Standard, October 26, 2009 (maybe sub reqd.).  Kosar’s review notes (along with some criticisms of the book):

Tsai, a professor at the American University law school, depicts how the Court has transformed the nature of the First Amendment by pouring new meanings into its words. In a mere century, the Court has made stunning alterations to the freedoms of speech, assembly, and religious exercise, and transmogrified the Amendment’s prohibition against making a law ‘respecting an establishment of religion’.

Tsai argues that the Court has been able to pull off this feat by employing stirring rhetoric and powerful metaphors. Thus, over the past century, it has likened the act of speaking in a public place (in Justice Holmes’s words) to falsely shouting Fire! in a crowded theater, to lawful assembly in the grand tradition of democracy, and to the peddling of wares in a ‘marketplace of ideas’. When one metaphor ceases to provide the desired results, the Court crafts a new one....

Inevitably, as Tsai shows, metaphors fail. Speech may be like fire, but it is not fire; it is speech. When people have wised up to this, the Court has concocted a new metaphor and eased an old one from the scene. And as it has repeated this rhetorical switcheroo, the Court’s decisions have grown increasingly estranged from the plain language of the First Amendment and the Constitution generally. The word ‘speech’ no longer means talking; it now includes actions, such as burning the American flag and peddling pornography via the Internet. Taking all this in, the average American might well wonder if the justices are making things up as they go.

Tsai has written a fine book, but I cannot help but think that the late Justice Stanley Reed got it right in his dissent inMcCollum v. Board of Education (1948): “A rule of law should not be drawn from a figure of speech.”

I’ve been asked to step in and teach a 1L elective course on law and economics this spring, covering for a colleague who has taken a high level economics post in the administration.  I have to pick a textbook very soon.  The course is for second semester 1Ls, and my goal is to attract 1Ls who did not major in business or economics as undergrads, and make it comprehensible to them.

That means that I don’t want it to be super-math heavy.  It also needs to focus around the 1L courses that they’ve been taking — antitrust and IP and my own corporate finance won’t work, because they come in later years, and so it needs to focus around contracts, tort, property, criminal law.  In addition, it is only a two unit, once a week class, so it can’t cover vast swathes of material, and in fact very far from it.  I’ve never taught the basic, intro law and econ class before, and I’ve never taught 1Ls, so it should be an exciting pedagogical experience — for me, at least!  I’d be grateful for suggestions in two categories:

• Main text — please tell me why this would be a useful textbook, given my constraints above.
• Supplemental texts, such as short introductions on game theory, statistics, supplemental readings on law and econ, etc., but specifically with law students in mind.

Michael Hersh describes a new $50 million George Soros initative to try and remake the economics profession so to reclaim it from “free market fundamentalists.”  The fund will be run by Robert Johnson, formerly a managing director of Soros Fund Management; it hopes to raise $200 million in matching funds.  (H/T Instapundit; also Mark N is right in the first comment to raise Cato as a better point of comparison in the (lengthy) discussion below the fold.)

Large swaths of economics are going to have to be rethought on the basis of what’s happened.” So said Larry Summers, President Obama’s chief economic adviser, in an interview in the weeks after the markets crashed a year ago. Yet to a remarkable degree, economic thinking hasn’t changed very much at all.

Now financier George Soros is announcing a $50 million effort to speed things along. This week Soros is gathering some of the leading practitioners of the market-skeptic school, who were marginalized during the era of “free-market fundamentalism,” among them Nobelists Joseph Stiglitz, George Akerlof, Michael Spence, and Sir James Mirrlees. He’s also creating an “Institute for New Economic Thinking” to make research grants, convene symposiums, and establish a journal, all in an effort to take back the economics profession from the champions of free-market zealotry who have dominated it for decades, and to correct the failures of decades of market deregulation. Soros hopes matching funds will bring the total endowment up to $200 million. “Economics has failed not only to predict and explain what happened but has also failed to protect society,” says Robert Johnson, a former managing director at Soros Fund Management, who will direct the new institute. “That’s what the crisis revealed. The paradigm has failed. There is no guidance.”

I am curious what professional and academic economists make of this kind of initiative.  (Update:  Here’s a much better article from the FT.  And I’ve added ... still more to the post below.) Continue reading ‘A New Soros Initiative on the Economics Profession?’ »

My recent article “Check that Checkbook: A Guide to Smarter Alumni Giving” which was recently published in National Review is now available online on NR Digital.

(At least I think it is–I’m always a bit unclear when NR Digital is generally available and when it isn’t.)

That’s the title of my forthcoming article in the Connecticut Law Review; a revised version is now available. The article suggests that, under Heller, bans on guns at schools are constitutional. However, as a policy matter, gun prohibition on campuses turns them into targets for criminals, particularly mass killers. The response of anti-gun groups is to warn about the dangers of 18-year-olds carrying AK-47 rifles to keggers. For the record, I do not think that anyone should take an AK-47 (or any other gun) to a kegger. However, there are sensible policies that avoid the dangerous extremes of creating a cluster of thousands of defenseless victims, or teenagers bringing machine guns to keggers. For example, adult employees of the school who already have been issued concealed carry licenses by the state should not be barred from licensed carry while on campus. A professor at a medical school who lawfully carries a licensed concealed handgun throughout the state is not going to suddenly turn into a violent criminal if he also carries while on campus. 

Paul Caron, at TaxProf, has posted some executive summary parts and the link to a GAO report on drivers of law school cost as well as minority enrollment.  Regarding costs of legal education, the GAO summary says:

According to law school officials, the move to a more hands-on, resource-intensive approach to legal education and competition among schools for higher rankings appear to be the main factors driving the cost of law school, while ABA accreditation requirements appear to play a minor role. Additionally, officials at public law schools reported that recent decreases in state funding are a contributor to rising tuition at public schools.

Very interesting post over at TaxProfBlog — the screen shots include a number of powerpoint charts and graphs from the GAO report.  I agree with the GAO report and its surveyed law school officials that accreditation plays very little role in driving up law school costs, and that rankings are an important driver.  They are also an important driver in things schools spend money on that drive up costs, such as faculty student ratios, for example.

I also believe, however — but wouldn’t try to defend here — that law schools respond to the availability of federal dollars and capture that money from students, and that law school tuition rates reflect perceptions of the return on investment available to students in going to work for law firms.  At least in my discussions with fellow professors who have some idea about law school economics, the thought is that mid tier schools found that they could place more of their students into large law firms, not necessarily the very top firms, but large workhorse firms that paid well.

And in my discussions with professors, the concerns are two-fold.  First, that if the big law model is genuinely collapsing into the long term, then the returns on law school investment might well be declining to ... what, exactly?  Well, for those of us here in Washington DC, it might be to something closer to what government lawyers earn.  Not to be sneezed at, heaven knows, particularly if you factor in the security and benefits, but not necessarily the returns long term that can support the rate of tuition increases at even mid tier schools like my own.

Second, if the USG becomes the lender directly, the pressure on it to intervene in the tuition “market” (I use that term very loosely indeed) and impose some cost controls is strong.  That could well be characterized, and might actually be, a regulatory mechanism for ensuring that subsidies aimed at students don’t wind up in the hands of a law school oligopoly.  Or not.  At least, that’s the substance of conversations I have with friends at a variety of schools in roughly my school’s tier.

Given the fascination of law professors with all things having to do with the ranking and dissection of the law school world, is it possible that someone has already done a genuine empirical study of the cost structures of law schools and their implied or explicit business models?

As a side note, I certainly find that I think harder than I used to about whether I am providing value to students, and I think of it as dollar value and return on long term investment.  I treat myself a lot more as an educational fiduciary than I used to.  I’m not alone in that, I suspect — I had a fascinating dinner conversation with a friend who teaches comp lit at a top five university; he told me that he thinks all the time about what he is going to convey and what it should mean, particularly as it is not professional education — it is inherently long term and about learning to think, reason, interpret, and write effectively, and in the context of the humanities and values.  He has a son about to enter college and it is on his mind same as it is on mine.  Yet it’s easier, really, for me to answer that teaching in a professional school — I don’t mean that the humanities, literature, etc., are not important, far from it, but that it’s an easier pedagogical question in a law school or medical school than in a literature department.

That means, from my point of view, thinking about law student education and what I think they need that they are not professionally able to determine for themselves.  I’m not an agent for a principal, I’m a fiduciary for an only partly competent principal.  My best advice, I suppose, is that you need a mix of plumbing classes and grad school classes; classes that teach you about the nuts and bolts, but also classes that teach you to think creatively and amply, because the field is not static, at least not in American law.  It might mean law and economics, to learn to think in a forward manner about incentives, for some students; and to learn to write and interpret difficult texts for others; and still something else for others.

Students, on the other hand, tend to think they know more than they do about what they need from law school, and at the extreme end, tend to think of themselves as the purchasers of a very expensive commodity called legal education, and I am the guy on the other side of the Starbuck’s counter purveying it to them.  Wants and needs.  There was a song about that, right?

That was the subject of a recent symposium at Denver University’s law school. The DU Law Review’s online publication, DUProcess, published several short articles on the topic.  I wrote on Connecting Laypeople with the Law Through Blogs, and began: “Blogging is creating a Golden Age of legal scholarship.  For the first time in the memory of any living person, legal scholarship is now connecting with an audience beyond the world of law professors and legal professionals.” I argued that law blogging provides readers with much better coverage of important appellate cases than does the MSM, and as an example pointed to Dale Carpenter’s VC posts on gay marriage cases. I also suggested that comment threads on legal blogs provide people with an opportunity that, in the olden days, mostly belonged only to on-campus law students: having a serious, enjoyable pro/con discussion of legal issues. Checking on Westlaw, I found that of the 291 law review citations to the Volokh Conspiracy, five were to comments. Lastly, I suggest that law blogging continues a salutrary trend which began nearly four centuries ago:

Starting around 1250, courts in England began operating in French.  After hundreds of years, the legal language had turned into something called “law French,” which was a confusing amalgam of English and of a French that no French person would ever speak. The new American colonists jettisoned law French.  In America, the law was stated positively in statutes written in straightforward English comprehensible to ordinary people.

The writing of statutes in plain English was one of the methods by which the Americans ensured that the law was under the control of the people, rather than imposed from above.  One of the causes for the cynicism which many modern Americans feel about government in general, and law in particular, is the degree to which the laws Americans must obey have become as incomprehensible to a normal, literate American as law French was to a normal, literate Englishman.

Scholarly legal blogging is a wholesome, constructive development, in the tradition of the plain English statutory writing of our American ancestors four hundred years ago.  By making law, and legal scholarship, more accessible to the lay public, law bloggers are reconnecting American law with the American people.

In the same symposium, Sam Kamin writes briefly on how professors use law blogging to enhance their traditional writing. Alan Chen discusses the use of blogs in faculty hiring or promotion. Student Joe Aguilar explains Race to the Bottom, DU’s joint faculty-student blog on corporate governance.

If you’re interested in the role of blogs in legal education, you might also enjoy Of Empires, Independents, and Captives: Law Blogging, Law Scholarship, and Law School Rankings by J. Robert Brown, Jr., and David I. C. Thomson’s book Law School 2.0: Legal Education for a Digital Age. Thomson argues that the new electronic media can–and should–lead to more profound changes in legal education than anything that has occurred in the last hundred years. If you want to check out some of the book’s ideas before buying, a 2008 paper by Thomson sets up the issue, and another paper details how legal writing can be taught well in an online-only class.

This morning NPR ran a story on Yale University’s decision to force the Yale University Press to remove all depictions of the prophet Muhammed, including several controversial Danish cartoons, from Jytte Klausen’s book The Cartoons that Shook the World.  As had already been reported, the University’s decision was based, in part, on various outside experts on national security, terrorism, and Islam who beleived republication of the cartoons could spark further violence.  What I had not previously known, but NPR reported today, is that the experts consulted by Yale University were not asked to read the book, only to comment on the cartoons.

just a few weeks before publication, Yale University, which owns the Yale Press, mounted a second review. The university asked some 20 scholars, counterterrorism officials and national security experts to asses the risk of more violence if copies of the cartoons were included in the book.“It was fairly overwhelming that the people who knew the most about this kind of situation said ‘Don’t do it,’ that this was likely to provoke violence,” Yale Press director John Donatich said. . . .

The university told Yale Press to eliminate the cartoons from the book, along with all other images of Muhammad. And Klausen was told she’d have to sign a nondisclosure agreement if she wanted to read the experts’ comments. She declined to do so. But she says she was even more dismayed to learn that the panel had not read her book.

“My first reaction was that it was stunningly similar to what happened during the conflict itself,” said Klausen. “I disagreed with the experts’ advice. I felt that had the experts read my book, they would not have given the advice they produced.”

So we are clear: A prominent University censored content from a book based on the opinions of experts who had not read the book in question.

Interesting article in the Financial Times (Thursday, October 22, 2009) by Sarah O’Connor, “Colleges confused over which jobs have been saved by the extra cash.”  Marcia Smith, associate vice-chancellor for research administration at UCLA, who leads a UCLA administrative team handling its stimulus awards

received guidance from the UC Office of the President saying she should include everyone paid by stimulus dollars, including tenured faculty members.  She was surprised, given that this appeared to clash with the government’s definition of a “retained” job as “an existing position that would not have been continued were it not for [stimulus] funding”.  But it did avoid a very sticky problem: how can you know for sure whether a job would have disappeared were it not for stimulus money?

If you were a tenured professor who happened to receive stimulus dollars as part of work on some research project, then your job, on this guidance, was counted as “created or saved.” Many universities, says the article, are “including tenured academics in their ‘jobs created and saved’ numbers even though their jobs were already guaranteed for life.”

While “many universities,” according to the article, including UCLA, simply decided to count everyone who is paid through a stimulus grant, in accordance with the formula, others “have excluded tenured academics from their data, after taking legal advice, amid what they say was a lack of clarity from the government on how to deal with the issue.”

According to Tina Brown, they are — in an interview in today’s Financial Times about her website, The Daily Beast.  This is an elliptical addition to Eugene’s posts about e-books and new legal book technologies.

I’m sure many legal academics, myself included, have wondered how, along the way in the last couple of years, things seemed to shift so that no one seems to read one’s academic articles anymore.  Our legal academic audience, in my highly anecdotal take, seems to want to read either blog posts or books.  I’m not quite sure why this is, but I Sense This In The AcademicoSphere.

Here is Tina Brown on the topic of websites, magazines, and books.  It’s quite a good interview on the founding and progress of the Daily Beast.

Given her record, it is startling when [Tina Brown] announces that she sees no future for long-form magazine pieces “of the old kind”, outside the pages of The New Yorker, The Atlantic and Vanity Fair, and proclaims that “books are the new magazines”.

However, Daily Beast writers are to be encouraged to “exercise their narrative journalism muscles” through a tie-up with Perseus Books to produce books of no more than 50,000 words.

“People’s time spans are so short, they either want a short ‘nerve centre’ piece immediately, or they want a short book they can read on a plane,” she says. “A lot of stuff about the [financial] meltdown I would have liked to be marinated over three or four months, but I didn’t want to wait a year and a half.”

The model, which will be tested in January with a book by John Avlon called Attack of the Wingnuts , will be to launch e-books for Amazon’s Kindle or Sony’s Reader, and then to print paperbacks for titles that have sold well.

George Mason economist Bryan Caplan has an interesting post advocating merit-based pay cuts for academics:

Many universities now have pay freezes or even nominal pay cuts. Under the circumstances, several professors have told me that there’s little point in doing faculty evaluations. If there’s zero — or negative — money for raises, why bother saying who’s doing well and who’s not?

It amazes me how much these remarks take for granted. Suppose a department is 5% over-budget. It may be obvious that it needs to cut total compensation by 5%, but it isn’t obvious that any particular professor’s salary needs to be cut by 5%. If raises can depend on performance, so can cuts! If a chairman normally gives a 0% raise to his worst performer, and a 5% raise to his best performer, why not respond to fiscal austerity by simply changing the range from –7.5% to -.2.5%?

I agree with Bryan’s argument, though I suspect many of my fellow academics won’t. One possible objection is that the criteria for evaluating “merit” in academia are too subjective. But academic departments already have merit criteria for making hiring and promotion decisions. If our criteria are good enough to decide whether or not someone deserves to be hired or offered lifelong employment, they should be good enough to make much less consequential judgments on whether a given scholar should get a 3% pay cut as opposed to 1%. A department that lacks good criteria for evaluating merit ought to get some pronto — whether it intends to base pay cuts on them or not.

The real reason why Bryan’s proposal is unlikely to be implemented is academic politics. Any law school dean or department chair who tried it would face enormous resentment from faculty members whose scholarship was judged deficient (or just not as good as that of their peers). To be sure, he or she might also win some gratitude from superior performers. But, as a general rule, people resent pay cuts more than they are grateful for increases. Obviously, people also don’t like equal across-the-board cuts. But administrators can blame those on budget cuts or economic conditions. By contrast, if the administrator saddles professor X with a 5% pay cut while Professor Y gets off with only 2% because her work is better, X is likely to blame the administrator.

In private industry, owners might nonetheless institute merit-based pay cuts because they stand to profit directly from rewarding good performers and penalizing bad ones. Such incentives are weak or nonexistent in the case of academic administrators. If you want to be a successful academic administrator, the first rule you have to follow is to not antagonize the faculty. For that reason, Bryan’s merit pay cut proposal is unlikely to be implemented at very many schools.

UPDATE: I am sure clever commenters will suggest that Bryan and I are among those academics who deserve a merit-based pay cut. All I can say in response is that if a merit-based pay cut system were adopted, I would be more than willing to have my work judged by the same standards as those applied to my colleagues.