Laurence Tribe ’66, the Carl M. Loeb University Professor at Harvard, has been named Senior Counselor for Access to Justice in the Department of Justice, and he will lead a newly launched initiative aimed at improving access to civil and criminal legal services.

. . . Tribe will be a primary liaison to the federal judiciary, and will work with federal, state, and tribal judiciaries in strengthening fair, impartial, and independent adjudication. He will also exchange information with foreign ministries of justice and judicial systems regarding efforts to provide access to justice, as part of the DOJ’s existing international efforts to promote fair and impartial law enforcement and adjudication. . . .

Tribe will begin his tenure at the DOJ on March 1 and will officially report to Associate Attorney General Thomas Perrelli ’91.

Here’s my take.   In an ideal world, there could be different procedures for different articles and different authors.  But if a one-size-fits-all answer is needed, I think the best approach is to have two-and-a-half rounds of edits.    The first round should be the big-picture round.  The journal should suggest changes or improvements to the overall argument, flow, and organization of the article.   The author should then respond, making changes as necessary.  The second round should be the detail round.  The journal should suggest changes or improvements to specific sentences, words, and citations.  The author should then respond.   Finally, I think it’s helpful for the journal to send the author one last quick round as a courtesy just to help look for typos, wrong words, and other objective errors (the last “half” round, as this can be pretty quick).

Some journals do this, and I think it works quite well.  One of the keys is to have clear roles for each rounds of editing.  Sometimes journals don’t have clear roles for different rounds.  Sometimes you’ll just get back-and-forth process that covers the same ground as prior rounds.  I think this tends to create more work than is necessary, at only marginal benefit.  In my view, the better approach is to dedicate individual rounds of edits to different aspects of the article.  That way, once a round is over, that part of the article is settled.

Perhaps the extreme example of the back-and-forth process is the editorial process followed by the Harvard Law Review, at least when I published with them in 2005.  The HLR is the most prestigious law review, and if you’re lucky enough to get an offer from them, you take it.  But in my experience, the editorial process was completely unlike the process at any other journal.  The HLR editors were super smart and worked incredibly hard.  But there were six or seven rounds of edits, each quite free ranging in subject and scope, as different editors had a crack at the piece.  I was totally exhausted by the end, and there was a lot of wasted effort in the process.  By the later rounds, the editors were suggesting changes to changes made by prior editors that themselves had altered changes made by even earlier editors.  The edits led to a nicely polished article, and I was happy with it.   At the same time, I remember thinking that I could have written an entirely new article just in the time I spend working on the edits to that one.

Anyway, as I said, there is no one perfect way to structure rounds of editing.  Different approaches will work better for different authors and different articles.  But I’ve personally found the two-and-a-half rounds approach described above works best.

The conference is open to the public, and it promises to be a remarkable event. Here is the list of speakers, which includes many close friends, colleagues, and former students of Bill: Pam Karlan, Anne Coughlin, Dan Kahan, Mike Seidman, Carol Steiker, Joe Hoffmann, Richard McAdams, Dan Richman, David Sklansky, Kenneth Abraham, Barbara Armacost, Andy Kaufman, John Manning, Andy Leipold, Tracey Meares, Erin Murphy, Dana Mulhauser, Elizabeth Scott, Robert Scott, and myself. Dean Martha Minow will provide a welcome, and Bill himself will be speaking at a time to be determined.

The schedule and location, together with the topic and abstract of my own remarks,  are after the jump.

Friday, March 26
Ropes Gray Room: Pound Hall

1:00 — 1:30: Welcome: Dean Martha Minow
1:30 — 3:00: Panel 1: Political Economy of Criminal
Justice

Joe Hoffmann
Richard McAdams
Dan Richman
David Sklansky

3:15 — 4:45: Panel 2: Specific Issues in Criminal Procedure

Orin Kerr
Andy Leipold
Tracey Meares
Erin Murphy

5:00 — 6:30: Reception for all attendees and the law school community

Saturday, March 27
Ropes Gray Room: Pound Hall

9:00 — 10:30: Panel 3: Emotion, Discretion, Mercy, and Faith

Anne Coughlin
Dan Kahan
Mike Seidman
Carol Steiker

10:45 –12:15: Panel 4: Mentors, Colleagues, and Students

Kenneth Abraham
Barbara Armacost
Pam Karlan
Andy Kaufman
John Manning
Dana Mulhauser
Elizabeth Scott
Robert Scott

Bill will be speaking at a time TBD.

Please click on the link for a map of the campus. All events will be
held in Pound Hall: http://www.law.harvard.edu/about/map.html

* * * * * *

My own presentation will be the following:

WHY COURTS CANNOT QUANTIFY PROBABLE CAUSE

Orin Kerr

The government can conduct almost any search or seizure if it has “probable cause.”  But what is probable cause?  Courts decline to define probable cause in terms of percentages, instead choosing to express the concept in vague terms like “fair probability.” This essay, inspired by Bill Stuntz’s classic article, “Warrants and Fourth Amendment Remedies,” argues that courts cannot quantify probable cause because probable cause is normally evaluated in an ex parte proceeding. Magistrate judges must assess probable cause based on a one– sided and partial explanation of cause that can only give part of the picture: The facts in a warrant affidavit do not say what methods the government didn’t try or what methods it tried but that failed to produce evidence.   Magistrates cannot accurately calculate the likely percentage chance that evidence will be in the place to be searched because such a calculation would require these additional facts that warrants do not include. In this information vacuum, a hunch will be more accurate than a mathematical calculation.  In short, courts do not quantify probable cause because judges normally will not have the information needed to quantify it accurately.

A generation ago, academia embraced the laptop as the most welcome classroom innovation since the ballpoint pen. But during the past decade, it has evolved into a powerful distraction. Wireless Internet connections tempt students away from note-typing to e-mail, blogs, YouTube videos, sports scores, even online gaming — all the diversions of a home computer beamed into the classroom to compete with the professor for the student’s attention. . . .

Professors have banned laptops from their classrooms at George Washington University, American University, the College of William and Mary and the University of Virginia, among many others. Last month, a physics professor at the University of Oklahoma poured liquid nitrogen onto a laptop and then shattered it on the floor, a warning to the digitally distracted. A student — of course — managed to capture the staged theatrics on video and drew a million hits on YouTube. . . .

Diane E. Sieber, an associate professor of humanities at the University of Colorado at Boulder, has debated her students on the collegiate conceit of multitasking, the notion that today’s youths can fully attend to a lecture while intermittently toggling over to e-mail, ESPN and Facebook. . . .

One recent semester, Siebert tracked the grades of 17 student laptop addicts. At the end of the term, their average grade was 71 percent, “almost the same as the average for the students who didn’t come at all.” . . .

[Professor David ] Cole surveyed one of his Georgetown classes anonymously after six weeks of laptop-free lectures. Four-fifths said they were more engaged in class discussion. Ninety-five percent admitted that they had used their laptops for “purposes other than taking notes.”

Even when used as glorified typewriters, laptops can turn students into witless stenographers, typing a lecture verbatim without listening or understanding.

I’ve yet to ban laptops in my class, but I’ve considered it, primarily because non-classroom use on a laptop can distract other students.  Perhaps I should consider it again.

It is true, however, that Pound was an extremely influential figure who had a very negative influence on American constitutional law. In particular, Pound was the founder and leading light of “sociological jurisprudence,” which in turn influenced constitutional interpretation for decades to come, and not in a good way.  (And I’m curious as to why Orin thinks its absurd to point this out, or whether he in fact thinks Pound’s influence was positive.)

It so happens that I’ve written a fair amount about Pound in chapter 3 of my forthcoming book, Rehabilitating Lochner.  Here are a few excerpts:

Roscoe Pound launched the sociological jurisprudence movement with a series of influential attacks on the Supreme Court’s nascent liberty of contract jurisprudence....

Even though Justice Peckham’s Lochner opinion explicitly stated that the Court’s view of the relative healthfulness of baking was informed by “looking through statistics regarding all trades and occupations,” Pound and his fellow Progressives lambasted Lochner as the product of “mechanical” or “conceptualist” jurisprudence that ignored scientific knowledge about the health effects of long hours on bakers....

According to Pound and other advocates of sociological jurisprudence, law’s purpose is to achieve social aims.  Legal rules, including constitutional rights, cannot be deduced from first principles. Judges should therefore consider the public interest and “social facts” when interpreting the Constitution. Because modern, industrialized society required increased government regulation, the scope of the police power must be interpreted to accommodate this need.

Pound derided inflexible jurisprudential theories like originalism because they fail to respond to changing times. He contended that legal rules should be only a “general guide” to the judge, who should be free “within wide limits to deal with the individual case.”

Pound “repeatedly claimed that turn-of-the century judges engaged in and lawyers believed in mechanical deduction.”  Yet he both misrepresented the reasoning of Lochner, his primary example, and “offered no quotations or citations to that effect by anyone who espoused this allegedly dominant view of judging.”

I go on to point that Pound accused the Lochner majority of Darwinism, even though it was his idol, Holmes, who was the only Darwinist on the Court. Pound himself, a former botanist with prominent “Progressive Darwinist” mentors, was far more influenced in his legal ideology by evolutionary theory than were the Justices in the Lochner majority.

I also argue that to a large extent the entire theory of sociological jurisprudence, at least in the hands of Pound and his followers, was basically an intellectual smokescreen for a statist agenda that called for judges to defer to whatever the legislature wanted to do.  Pound consistently held up the majoritarian Holmes as his model, yet Holmes hated facts and lacked any interest in being a pioneer of sociological jurisprudence, whose proponents claimed to be concerned most of all with ensuring that law was consistent with social facts.

In short, I find Pound’s work on constitutional theory to be rife with dishonesty, and substantively disastrous in his dismissal of the importance of economic liberty [and individual rights more generally] and, more important, his advocacy of injecting social policy considerations into constitutional interpretation at the expense of the text.

Ironically, some modern conservatives have adopted the anti-originalist Holmes and his Progressive allies like Frankfurter, all known enemies of originalism in their day, as their heroes.  And it’s true that modern liberals have abandoned many aspects of the Progressive line pushed by Holmes, Hand, Pound, Brandeis and others.  But the enemy of an enemy isn’t necessarily a friend.

UPDATE: In the comments, Orin writes,

David, I don’t think it’s “absurd” to point out that Pound was a major figure in sociological jurisprudence. Rather, I was pointing out what you characterize as “Beck’s bizarre claim that Pound was somehow responsible for American lawyers interpreting the Constitution via caselaw rather than through studying the Constitution itself.” I gather from your statement that you will not defend it that you disagree with it, as well.

Yes, and I suspect that Beck was somehow conflating Langdell and Pound.  And if that’s all Orin meant, than we agree.  But I read his post as suggesting that its absurd to tag Pound as an enemy of American constitutionalism.  That’s not exactly how I’d put it myself, but I take it Beck and his guest were making the broader point that Pound was extremely influential and had a very negative impact on how American academics and judges go about interpreting the Constitution, in particular substituting traditional modes of constitutional interpretation for Progressive social theory.  And while Beck may have made the point inelegantly and with inaccurate details, the general point (made much more clearly by the guest) strikes me as basically sound.

After several hours of this, I gave up.  I sent an email to the law review editors to the effect that while I was loath to go back on my commitment to review the book, I’d rather be boiled in hot oil than spend my time giving this book the attention it needed to be ready to start writing a review.

I won’t claim to be the best writer in the world, but I do try hard to make all of my academic writing readable, even by non-academics.  I’m not sure that this is always a career benefit–some student law review editors, the basic scholarly gatekeepers of our profession, likely confuse turgid, elliptical, and jargon-filled prose with erudition.  But, as my anecdote hopefully shows, going the opposite route also has its costs.

UPDATE: All this bring to mind the following from Gilbert and Sullivan’s Patience:

If you’re anxious for to shine, in the high aesthetic line as a man of culture rare,

You must get up all the germs of the transcendental terms, and plant them everywhere.

You must lie upon the daisies and discourse in novel phrases of your complicated state of mind,

The meaning doesn’t matter if it’s only idle chatter of a transcendental kind.

And everyone will say, As you walk your mystic way,

If this young man expresses himself in terms too deep for me,

Why, what a very singularly deep young man this deep young man must be.

1. AALS Annual Meeting Registration Fee Is Not (ahem) “Popular”
2. So would reducing the high AALS Annual Meeting registration fees affect attendance?
3. More on the AALS Annual Meeting Registration Rip-Off

All are worth reading. In addition, Larry Ribstein offers some apt comments here, and Jeff Sovern does so here.

I wanted to add to the discussion with a plea directed to the new AALS section heads. Your primary responsibility as the new AALS section head is to (a) put it on your resume and (b) plan the panel discussion hosted for your section for the 2011 AALS meeting. My plea is that you are done with (a), please think carefully about how you can ensure that (b) will be of genuine scholarly interest to many of your fellow section members.

In particular, please don’t put on a panel featuring just your friends. Please don’t choose a panel based on a pet topic that you love but few people seem to follow. And please don’t pick panel members who all agree with each other, or who look at the problem in a similar way.

Instead, chose a specific topic of significant scholarly interest and debate in your field. Then ask the leading and active scholars in your field — the people who everyone wants to hear from — to discuss and debate that topic. Make sure there are participants from all of the major sides of the debate represented (yes, that means inviting people who you think are wrong). In other words, make sure there is a real debate on a very live topic featuring scholars who are heavy hitters and will draw a crowd. Then write up a specific description of the debate and the different sides that will be expressed during the panel for posting in the program and on the AALS website.

I ask that you do this because doing so will help turn the AALS into a serious and important conference. As it is, relatively few people go to the AALS with much of a scholarly agenda: There’s a lot of schmoozing, but not much in the way of serious academic discussion. However, every panel that becomes a real scholarly event will draw a crowd and energize the conference. On behalf of the rest of the lawprofs out there, please make sure that the AALS event you help organize will be an exciting one.

To see the problem, imagine a law school issue spotter. The professor sees two major issues in the question, issue one and issue two. The first issue requires working through complicated doctrine but has a reasonably clear answer, at least once you work through all the detailed parts. The second issue requires applying a vague standard to ambiguous facts. It’s not hard to see that the standard applies, but applying it well requires a mastery of the facts and the details of the legal standard; the outcome can be argued for either side, as it’s intentionally right down the middle.

Now imagine you have to grade the following 10 exams:

1) Exam 1 gets lost in the doctrine working its way through issue 1, but it ends up getting the correct answer by chance after making two mistakes that canceled each other out. The exam does a decent job applying the standard for issue 2.

2) Exam 2 provides very little analysis of issue 1 and simply announces the result (albeit correctly). The exam then does a very good job of applying the standard for issue 2. The exam then spends time discussing a third issue that is not actually raised by the facts; the discussion reveals that the student does not understand the law relating to that third issue.

3) On Exam 3, the student has a misunderstanding of one of the basic doctrine issues that leads the student’s analysis of both issues to start off on the wrong foot. However, once you get past that one error, the rest of the exam is excellent: The student is getting absolutely everything wrong, but it all seems to go back to one error.

4) Exam 4 goes through the basic issues reasonably well, but refuses to express any view of the strength of any argument or to reach any conclusion. Every argument, no matter how weak or how strong, is described as a position that “may apply.”

5) Exam 5 does the best job of anyone in the class on Issue 1. However, the exam completely misses Issue 2.

6) Exam 6 starts by discussing two issues not actually raised by the question; the answers reveal that the student has a basic misunderstanding of a topic not tested by the question. However, the student then addresses the two issues raised by the question and does a very good job with both of them.

7) Exam 7 starts with an outstanding answer to issue 1. It then starts to answer issue 2, but the student runs out of time after just a few sentences.

8) Exam 8 has misread the facts. However, it does a pretty good job with both issues 1 and 2 if you assume the facts that the student incorrectly thinks exist.

9) Exam 9 is hard to follow, as the student is a poor writer. It’s kind of hard to tell what the student was thinking with the first problem, as it’s hard to follow what the student was saying, but the student does end up with the right result. The analysis of issue 2 is easier to follow, and the student does a so-so job with it.

10) Exam 10 starts off terribly with an analysis that suggests that the student really has no idea what he is talking about. However, at the end of the answer, the student has a section called “alternate analysis” in which the student writes that he “may have misunderstood the problem” and that there is a different approach that is “arguably applicable.” The student then has a short answer to both issues that is exactly correct.

What makes grading so difficult and anxiety-inducing for professors — or at least for me — is that accurate grading requires a consistent and coherent method, rooted in a concept of the purpose of grading, for how high or low to mark each of these possible combinations of errors and correct answers.

Some professors grade with a checklist that gives “points” for certain things, but I have never found that works for me. My ultimate goal in grading exams is to gauge a student’s lawyerly ability. I try to imagine the exam author is another lawyer who I have the option of working with, and I gauge how enthusiastic I would be about working with that lawyer — and how much I would trust and rely on the lawyer’s judgement and analysis — based on the quality of the answer. I don’t think a checklist can really capture that. A checklist creates a kind of objectivity in grading, but the objective thing measured doesn’t seem to relate to anything a future employer would actually want to know. Instead, I make a judgment call, an overall assessment that factors in my judgments as to what each of these errors suggests about a student’s lawyerly ability. It requires a very careful read of the answer, and often a re-read, to get an accurate sense of where in the scale of answers that answer best fits.

Anyway, I mention these things not because I expect readers to have great sympathy for law professors. We have the single greatest job in the world, so no need to feel sorry for us. Rather, I thought readers might just be interested in the kinds of difficult judgment calls that go into grading law school exams.

Finally, I suspect some readers will say that most of the ten exams here made major errors and that most deserve bad grades. If you think that, you have an inflated sense of how well you took exams back when you were in law school. Your complaint is also addressed by the law school curve: In a curved class, it just doesn’t matter if all the answers are great or all the answers are bad. All that matters is the distribution in quality among the various exams that is then superimposed onto the pre-set curve to yield the actual grades.

Orin tentatively attributed this decline to law schools becoming increasingly concerned about LSAT and GPA scores because these scores are so important to schools’ U.S. News rankings.

I have two related comments.  First, even if we assume that 1993 is the appropriate baseline year (and the study never explains why it is), we see that 9,577 African Americans and 1,434 Mexican Americans applied to law schools in 1992–93, compared to 9,030 and 1,130, respectively, in 2007-08.  In other words, there was a total of just over 11,000 African American and Mexican American applicants  at the beginning of the study period, compared to just 10,160 fifteen years later.  Nevertheless, almost exactly the same number of law students from these two groups matriculated in 2008 as in 1993: 4,060  in 2008, compared to 4,142 in 1993.

So, even though in 2008 there were almost one thousand fewer applicants, only eighty-two fewer individuals matriculated, meaning that a higher percentage of applicants ultimately matriculated.  And this despite the fact that in the interim, public law schools in several states, including, notably, California, Florida, and Michigan, have been legally barred from considering race in admissions.

So, in fact, there is no reason to think based on the statistics provided that law schools have become any less vigorous in their admission of African Americans and Mexican Americans.  ([Corrected:] The study claims that members of the two groups who apply to law school are increasingly well-qualified, but oddly enough, while the study notes an increase in GPAs and LSAT scores, it doesn’t compare these with the increases, if any, of other law school applicants.   Moreover, with regard to LSATs, African Americans’ applicants’ (median? average?) LSAT has increased from 142.6 to 143.7, but the significance of this increase is unclear; 143.7 is still well below the normal cutoff for the vast majority of law schools.

And that leads to my second comment.  U.S News is often blamed for discouraging law schools from admitting minority applicants with low GPAs or LSATs.  Indeed, I’ve heard that one reason various ABA poobahs pushed to require more “diversity” in admissions was the vague sense that some law schools were “cheating” by reducing their minority admissions to improve their U.S. News ranking.

U.S. News, however, only considers, and only has considered, medians, not averages.  While it’s possible to imagine scenarios in which the last few candidates a law school is considering include “diversity” candidates with below median scores and white or Asian candidates with above median scores, in practice in the vast majority of cases the choice will be between “diversity” candidates with below median scores in either LSAT or both GPA and LSATs, and non-minority candidates who are in a similar position.

So, for example, if a law school had one slot left, and the LSAT median of the students who had thus far committed to attending was 160 and the GPA median was 3.3, it wouldn’t make any difference for U.S. News purposes whether the school admited (a) a diversity candidate with a 148 and a 3.32, or a non-diversity candidate with a 157 and a 3.4, or (b) a diversity candidate with a 154 and a 2.7, or a non-diversity candidate with a 155 and a 3.0.  It’s therefore unlikely that U.S. News plays much of a role in discouraging law schools from digging deeper into the applicant pool to admit diversity candidates.

UPDATE: Ilya, above, points to a previous post of mine that I had forgotten about, regarding a similar study from the same crew.  I wrote then, “There are some real oddities with this study. First, the LSAC apparently changed its data collection methods in 2000, and an LSAC page (go to the “Data” link) warns that data starting that year is not comparable to earlier data, which would seem to make the entire exercise of comparing data from 1992 to data in 2005 moot.”  So this “study” is even more dubious than I first thought.

I would guess the increasing importance of the U.S. News rankings explains much of the difference. A law school’s U.S. News ranking is heavily influenced by incoming GPA and LSAT scores of incoming classes. Given the well-known disparities of those numbers, schools may be choosing to emphasize the racial diversity of its incoming class less to get more of an advantage in the U.S. News rankings. Of course, different people will have a different sense of whether that is good or bad. But I think that’s the dynamic.

Academic economists gather in Atlanta this weekend for their annual meetings, always held the first weekend after New Year’s Day. That’s not only because it coincides with holidays at most universities. A post-holiday lull in business travel also puts hotel rates near the lowest point of the year.

Economists are often cheapskates.

The economists make cities bid against each other to hold their convention, and don’t care so much about beaches, golf courses or other frills. It’s like buying a car, explains the American Economic Association’s secretary-treasurer, John Siegfried, an economist at Vanderbilt University.

The rest of the article has entertaining stories of people like Keynes and Milton Friedman.  But let me stick with professional conferences.  We law professors are also holding professional conventions this week, as are many other academic groups, such as the MLA.  Price is part of the timing; so is, as the article notes, the general agreement to schedule academic calendars across the country’s institutions in order to hold the professional meetings before classes resume.

Update: I didn’t realize that this economics conference is also a job market and not just professional confab — definitely changes the picture.  Here is an interesting comment, pulled up from below:

As someone pretty close to the economics AEA meetings, I think the article misses the point about these meetings: they aren’t in fancy places because a huge swath of attendees are graduate students doing job market interviews. These students basically have 0 willingness to pay for beaches or casinos at this point. Economics conferences are often held in really expensive and fancy places, but the winter meetings are different. Maybe I’m overestimating the importance of this factor, but it seems at least worth mentioning.

But we law professors hold our meetings in places like San Diego and, this year, New Orleans.  What does this say about us, compared to the economists?  More interested in rent-seeking than being good agents on behalf of our institutional principals?  More efficient rent-seeking public-choicers than the economists (I mean ‘rent-seeking’ here in the sense of, we won’t come if you hold it in Minneapolis in January, so ...)?  We care more about golf and beaches?  We’re better at golfing and surfing and, in New Orleans, eating?  Our meetings are more boring to attend, so we need better venues to attract conference-goers?  Our attendees are so dedicated to their conference sessions, it doesn’t matter whether they’re held in San Diego or Moose Jaw (in winter and summer, below fold)?

Moose Jaw in summer is quite lovely, by the way, and not just as places in Saskatchewan go.  I’m not going to the AALS meetings — I’ve almost never gone.  I’m not sure why, come to think of it.  It’s paid for by the school and the cities are often great places to go.  (This year I have a conflicting Hoover meeting in Palo Alto, and those task force meetings are always great.) But, sad truth be told, I also think it’s because I’m a rampant egotist beneath the tranquil academic exterior, and it’s hard for me to go to a conference where ... I’m not on the program.  This is embarrassing to admit, but, if I’m honest, it’s hard for me to sit through a meeting where I’m not doing the talking or some chunk of it.  But am I truly alone in that — be honest — it must be part of the reason why conferences today feature so many talkers on panels (besides the fact that traditional academic papers have to be read to be understood, not read aloud)?  Plus, as Steve Bainbridge commented on his blog, most of the intellectual action in law these days takes place in more specialized venues.

(PS.  I haven’t participated in any conference venue negotiations, but I’d be easily open to persuasion that major conference cities do price weather and season, not just to say, bad weather=cheaper rates, but also running the other way: Bad weather=fewer conferences in off-season=not geared up for major conferences in places like Minneapolis in winter except at higher effective prices=New Orleans or San Diego have better weather and more cost effective at the same time, with golf and beach merely marginal bonuses or loss-leaders.)

The Standards Review Committee of the ABA Section of Legal Education and Admissions to the Bar has proposed revising accreditation standard chapter 3 (Program of Legal Education) to incorporate “Student Learning Outcomes.”  The committee will discuss the proposed standards as part of the AALS Annual Meeting Program on Friday January 8, 2010, from 4:00 p.m. — 5:45 p.m. in the Napoleon Ballroom on the third floor of the Hilton New Orleans Riverside.

Looking at the proposal, we find that “the learning outcomes shall include”:

(3) knowledge and understanding of:
(ii) the legal profession’s values of justice, fairness, candor, honesty, integrity, professionalism, respect for diversity and respect for the rule of law;

No further explanation is provided as to what “knowledge and understanding of ... respect for diversity” entails.   My suspicion is that this is just p.c. pablum inserted to satisfy constituencies that demand it.  And there’s nothing inherently wrong with “respect for diversity,” if this means “respecting and treating fairly all clients and colleagues regardless of their background.”  Indeed, this is praiseworthy.

However, given the past record of ABA accreditation committees, who have rather loosely interpreted ABA guidelines to try to enforce a political agenda on law schools–for example, requiring strong affirmative action preferences in admissions when there was no textual basis in the accreditation guidelines for such a requirement–one could easily imagine this language being misused in the future.   Teaching “respect for diversity” could easily be interpreted as teaching that law schools, law firms, etc., should and must engage in affirmative action preferences.

Without further clarification, the ABA could easily threaten the accreditation of a law school if a substantial percentage of the faculty signed a brief opposing Grutter–like diversity admissions; or if students interviewed by the accreditation people complained that the faculty seems to them insufficiently supportive of “diversity” (i.e., affirmative action) in its teaching; or if professors assigned academic papers arguing that homogenous organizations or societies function better than heterogeneous ones; or if the law school failed to discipline students who undertook a satirical “affirmative action bake sale”; and so forth.  After all, any of these hypotheticals could arguably decrease students’ “respect for diversity,” depending on how this phrase is interpreted.

I won’t be attending the committee meeting, but I hope someone who does attend raises these concerns, and asks the committee to clarify the guidelines such that they make clear that teaching “respect for diversity” does not obligate a law school or any of its constituents to take any given position on the desirability of affirmative action preferences, or any other political position (such as the pluses or minuses of homogenous and heterogeneous organizations).

Justices have always tended to hire clerks who reflect their own ideological leanings. Prior to the 1980s, the ideologies of different judges’ clerks didn’t differ much because there was little ideological diversity among the justices themselves. Until the appointment of several conservative justices by Ronald Reagan and George H.W. Bush, William Rehnquist was the only clearly conservative justice on the Court; Chief Justice Warren Burger was also conservative on some issues, but far from consistently so. Richard Nixon and Gerald Ford did appoint some justices that were more pro-prosecution on criminal law than the Warren Court was. But most of the Nixon and Ford appointees stayed well within the liberal post-New Deal consensus on other big issues before the court, such as race, gender, property rights, federalism, regulatory law, and the like. Two of the five Nixon-Ford appointees (Blackmun and Stevens) actually ended up voting with the Court’s liberal bloc on nearly all the important cases that came up in the 80s and early 90s. It isn’t surprising that these Republican justices ended up hiring clerks with views that didn’t differ much from those of the Court’s most liberal members. Scalia, Thomas, and — to some extent — O’Connor and Kennedy, were much more willing to challenge liberal judicial orthodoxies, and tended to hire more genuinely conservative clerks. Thus, the divergence between those clerks’ later careers and the ones pursued by clerks for liberal justices.

In my view, the pre-1980s Supreme Court had serious flaws in its jurisprudence, and was badly in need of greater ideological diversity. I say that even though I oppose important elements of the conservative judicial ideology that came into prominence at that time. Liptak writes that the new polarization “is not easy to reconcile with the view that that law and politics are, or at least ought to be, different realms.” Perhaps not. But the previous homogeneity wasn’t politically neutral either. Rather, it reflected the fact that for several decades after World War II, the Supreme Court was dominated by a relatively homogeneous center-left legal elite that hired clerks cast in its own image. As both right of center and left-wing radical critics pointed out, that establishment’s view of the law was far from incontestably correct, nor was it free of political bias.

Today’s Supreme Court has many flaws. But it is a better institution for having more genuine ideological and jurisprudential diversity among its personnel. I admit that that judgment is partly based on my strong disagreement with many of the positions taken by the old-style liberal justices. But even if you think that their decisions were mostly correct, that is very different from claiming that they represented judicial decision-making that was somehow apolitical in a way that today’s more conservative justices and clerks are not; most of the earlier decisions closely tracked the political preferences of the moderate and liberal legal elites of the time. And even aside from the merits of particular decisions, it’s also important to recognize that small ideologically homogenous groups are vulnerable to deliberative pathologies such as groupthink that are less likely to arise in more diverse settings.

The article presents empirical findings of the employment pattern of former Supreme Court clerks. It concludes that “careers of former clerks show striking trends of political polarization in the recent history of the clerkship with regard to the legal academy, government service, and private practice.” The basic finding is that the law clerks of conservative-leaning Justices often then work at conservative-leaning law firms and then end up in Republican Administrations or stay in private practice, while the law clerks of liberal-leaning Justices often work at liberal-leaning law firms or go into academia with possible pit-stops for positions in Democratic Administrations. Liptak summarizes the findings for who became an academic here:

Only 19 percent of clerks from the four most conservative justices in recent decades joined the legal academy and only 7 percent went to one of the top 10 law schools in the annual survey published by U.S. News & World Report. A significant minority joined the faculties of religious or conservative law schools. Clerks for the other five justices followed the historical pattern, with 34 percent joining the legal academy, about half of them at the elite schools.

The article then argues that this polarization has had a number of harmful effects on the law, including that it has made legal academia overwhelmingly liberal and therefore of less interest and influence on more conservative judges and Justices.

The study’s basic finding that former law clerks often tend to work in places where others share their ideological orientation certainly matches my anecdotal evidence. As I once described the staffing switch from the Bush White House lawyers to the Obama White House lawyers, “Out With the Scalia Clerks from Kirkland, In With the Stevens Clerks from WilmerHale.” At the same time, the article makes a lot of quite broad claims about cause and effect that I though overreached. The identified trends are interesting, but I’m not sure they reveal anything particularly important. It seems to me that these trends largely reflect the fact that a lot of law clerks are interested in career paths that factor in ideological views, such as high-level DOJ spots, White House Counsel gigs, and judicial appointments. The trends reflect those realities, but I don’t tend to think they are the cause of significant additional polarization in views of the law. That’s my initial sense, at least.

UPDATE: Following Ilya’s model of full disclosure, I should add that I clerked for Justice Kennedy, identified in the article as one of the Court’s conservative Justices. I’m not sure it had any impact on my employment, though: Before clerking I was a law professor at GW and a VC blogger, and after clerking I went back to being a law professor at GW and a VC blogger.

“By instructing a class with Mr. Yoo, you are helping to legitimize his illegal and unethical actions,” organizations led by the National Lawyers Guild said Tuesday in an open letter to Deputy Attorney General David Carrillo, a doctoral candidate and instructor at the university’s Boalt Hall law school.

They asked Carrillo either to teach the course by himself, if the school will allow it, or to leave it to Yoo. Signers included the law school’s chapter of La Raza Law Students Association and the Boalt Alliance to Abolish Torture.

The class is scheduled to begin January 11, and 23 of 24 spots are filled.  (LvHA)

Frankly, I am not a big fan of academic investigations.

First, academic investigations are not how science – or social science – is supposed to operate. They are a hard type of official coercion, which ought to be reserved for only the most egregious cases.

For one or more of these reasons, I fully expect Penn State not to bring formal charges against Professor Mann – and if it does, I expect him to be cleared by his colleagues. Though I have read only a few dozen CRU emails, in my opinion Mann’s errors should be corrected in the usual way, not by organized groups telling people what to think.

But if I were Professor Mann’s dean at Penn State, I would try to determine whether he has fully shared his data, metadata, and computer code. To the extent that he hasn’t already, I would try to make him do so – at least for his most important or most controversial articles in recent years. And, for reason #3 above, I wouldn’t take Mann’s word for it. I’d call his critics and ask them to name the few most important Mann papers for which the data and computer code are needed for replication.

If Mann is still withholding the data and code necessary for replication, I’d ask him to replicate his most important or most controversial recent work (certainly not everything) and to release the data and code so that others might do so. If Mann couldn’t replicate his own work, I would ask him to announce that fact to the scientific community, so that serious scientists would know whether his work is replicable.

Thus, if I were Professor Mann’s dean, probably the only power I’d use would be to further the scientific enterprise. And even that would not be necessary if ethical standards were higher in the subfield of paleoclimatology.

(For those who might be wondering, I did not call for a formal investigation of Michael Bellesiles back in 2000–2002. It was Bellesiles’s supporters who most frequently called for an investigation, though some of his critics did as well. Emory’s investigation was triggered by prominent members of its faculty pushing privately for a formal inquiry. Apparently, Bellesiles’s public supporters, being too lazy or too biased to bother checking the evidence that could be found in an hour or two in any major academic research library, miscalculated that Bellesiles would be vindicated. He wasn’t.)

A learning-disabled freshman suing Princeton University for refusing to allow her extra time to take exams was dealt a setback this week, as a federal judge refused a temporary restraining order on the eve of midterms. But plaintiff Diane Metcalf-Leggette still has a shot at getting a preliminary injunction in January, when final exams begin, if she can show probability of success in her suit under the Americans with Disabilities Act.

Metcalf-Leggette, of Centreville, Va., contended that a poor performance on the midterms would constitute irreparable harm, but U.S. District Judge Anne Thompson in Trenton, N.J., said the school could deal with that after the fact. Thompson set a hearing date for Jan. 11, a week before the start of finals, in Metcalf-Leggette v. Princeton University, 3:09-cv-05428.

Metcalf-Leggette, represented by Seth Lapidow and Jonathan Korn of Blank Rome in Princeton, asked for an accommodation in a series of meetings with university officials before suing the school on Monday, the day before midterm exams began.

The student has apparently been diagnosed with 1) Mixed-Receptive-Expressive Language Disorder, 2) Disorder of Written Expression, 3) Developmental Coordination Disorder, and 4) Attention Deficit Hyperactivity Disorder. The University did agree to give the student the right to take tests in a “reduced distraction testing environment,” to provide a 10-minute break every hour during tests, and to impose a one-exam-per-day limit. But the University refused to give her extra time on the exam.

When I was in law school, there were a lot of rumors about the top performers in the class having special arrangements to take exams with extra time or special rules. I don’t know if the rumors were true, but they did make a lot of students skeptical of these sorts of medical claims — whether rightly or wrongly.

Hat tip: Blackbook Legal.

There are more PhDs in the legal academy every year. They’ve all of the motivation in the world to demand the training as a credential for entry level hires, and as they age in their schools they will begin to flex their muscles. Looking ahead to 2015, I’d say that the current cutoff of schools that softly demand a PhD for entry level hires (i.e., 1–10 or thereabouts) will trend toward all of the top tier.

I’m not so sure. Such things are hard to measure, but my sense is that Ph.D.s are often overvalued in entry-level hiring right now. Hiring committees change every year, but some committees see them as a very big deal. Time will tell whether that perception is accurate. Right now that perception is based on a prediction about the kind of scholarship those with Ph.D. credentials are likely to produce — more serious and more important than those with just a J.D. But we don’t know if that prediction will pan out. Maybe it will. But maybe it won’t. And if it doesn’t, the preference for Ph.D.s. at some schools likely will soften. We may end up looking back at the present as a time when hiring committees overvalued the Ph.D. credential and schools tends to overhire Ph.D.s. Of course, Dave may be right that those on the inside will then want to replicate themselves. That much is human nature. But I suspect the track record of Ph.D.-versus-non-Ph.D. hires over the next decade will play a significant role in determining the long-term picture of how much the academy values the credential.

For more on these questions, Larry Ribstein has additional thoughts.

Anyone who has been following Climate Audit for the last few years knows that at least some of the adjustments to the raw data done by the major data depositories appear to have been incompetently done at best. The statistical techniques used in the scientific backwater of historical climatology are often ad hoc, bearing little relation to the techniques that are standard in other fields. In particular, their techniques for handling missing data are particularly unscientific.

Perhaps the most accessible blog post demonstrating the effects of homogenization adjustments on a set of temperature records is by Willis Eschenbach at Watts Up With That.

The Smoking Gun At Darwin Zero

People keep saying “Yes, the Climategate scientists behaved badly. But that doesn’t mean the data is bad. That doesn’t mean the earth is not warming.”

Let me start with the second objection first. The earth has generally been warming since the Little Ice Age, around 1650. There is general agreement that the earth has warmed since then. See e.g. Akasofu. Climategate doesn’t affect that.

The second question, the integrity of the data, is different. People say “Yes, they destroyed emails, and hid from Freedom of information Acts, and messed with proxies, and fought to keep other scientists’ papers out of the journals … but that doesn’t affect the data, the data is still good.” Which sounds reasonable.

There are three main global temperature datasets. One is at the CRU, Climate Research Unit of the University of East Anglia, where we’ve been trying to get access to the raw numbers. One is at NOAA/GHCN, the Global Historical Climate Network. The final one is at NASA/GISS, the Goddard Institute for Space Studies. The three groups take raw data, and they “homogenize” it to remove things like when a station was moved to a warmer location and there’s a 2C jump in the temperature. The three global temperature records are usually called CRU, GISS, and GHCN. Both GISS and CRU, however, get almost all of their raw data from GHCN. All three produce very similar global historical temperature records from the raw data.

So I’m still on my multi-year quest to understand the climate data. You never know where this data chase will lead. This time, it has ended me up in Australia. I got to thinking about Professor Wibjorn Karlen’s statement about Australia that I quoted here:

Another example is Australia. NASA [GHCN] only presents 3 stations covering the period 1897–1992. What kind of data is the IPCC Australia diagram based on?

If any trend it is a slight cooling. However, if a shorter period (1949–2005) is used, the temperature has increased substantially. The Australians have many stations and have published more detailed maps of changes and trends.

The folks at CRU told Wibjorn that he was just plain wrong. Here’s what they said is right, the record that Wibjorn was talking about, Fig. 9.12 in the UN IPCC Fourth Assessment Report, showing Northern Australia:

Figure 1. Temperature trends and model results in Northern Australia. Black line is observations (From Fig. 9.12 from the UN IPCC Fourth Annual Report). Covers the area from 110E to 155E, and from 30S to 11S. Based on the CRU land temperature.) Data from the CRU.

One of the things that was revealed in the released CRU emails is that the CRU basically uses the Global Historical Climate Network (GHCN) dataset for its raw data. So I looked at the GHCN dataset. There, I find three stations in North Australia as Wibjorn had said, and nine stations in all of Australia, that cover the period 1900–2000. Here is the average of the GHCN unadjusted data for those three Northern stations, from AIS:

Figure 2. GHCN Raw Data, All 100-yr stations in IPCC area above.

So once again Wibjorn is correct, this looks nothing like the corresponding IPCC temperature record for Australia. But it’s too soon to tell. Professor Karlen is only showing 3 stations. Three is not a lot of stations, but that’s all of the century-long Australian records we have in the IPCC specified region. OK, we’ve seen the longest stations record, so lets throw more records into the mix. Here’s every station in the UN IPCC specified region which contains temperature records that extend up to the year 2000 no matter when they started, which is 30 stations.

Figure 3. GHCN Raw Data, All stations extending to 2000 in IPCC area above.

Still no similarity with IPCC. So I looked at every station in the area. That’s 222 stations. Here’s that result:

Figure 4. GHCN Raw Data, All stations extending to 2000 in IPCC area above.

So you can see why Wibjorn was concerned. This looks nothing like the UN IPCC data, which came from the CRU, which was based on the GHCN data. Why the difference?

The answer is, these graphs all use the raw GHCN data. But the IPCC uses the “adjusted” data. GHCN adjusts the data to remove what it calls “inhomogeneities”. So on a whim I thought I’d take a look at the first station on the list, Darwin Airport, so I could see what an inhomogeneity might look like when it was at home. And I could find out how large the GHCN adjustment for Darwin inhomogeneities was.

Eschenbach proceeds to set out what an “inhomogeneity” is and show that the GHCN must have done something other than they claimed to have done to make the adjustments they did. In the course of this, he shows some stunning anomalies:

Then I went to look at what happens when the GHCN removes the “in-homogeneities” to “adjust” the data. Of the five raw datasets, the GHCN discards two, likely because they are short and duplicate existing longer records. The three remaining records are first “homogenized” and then averaged to give the “GHCN Adjusted” temperature record for Darwin.

To my great surprise, here’s what I found. To explain the full effect, I am showing this with both datasets starting at the same point (rather than ending at the same point as they are often shown).

Figure 7. GHCN homogeneity adjustments to Darwin Airport combined record

YIKES! Before getting homogenized, temperatures in Darwin were falling at 0.7 Celcius per century … but after the homogenization, they were warming at 1.2 Celcius per century. And the adjustment that they made was over two degrees per century … when those guys “adjust”, they don’t mess around. And the adjustment is an odd shape, with the adjustment first going stepwise, then climbing roughly to stop at 2.4C.

Eschenbach goes on:

Intrigued by the curious shape of the average of the homogenized Darwin records, I then went to see how they had homogenized each of the individual station records. What made up that strange average shown in Fig. 7? I started at zero with the earliest record. Here is Station Zero at Darwin, showing the raw and the homogenized versions.

Figure 8 Darwin Zero Homogeneity Adjustments. Black line shows amount and timing of adjustments.

Yikes again, double yikes! What on earth justifies that adjustment? How can they do that? We have five different records covering Darwin from 1941 on. They all agree almost exactly. Why adjust them at all? They’ve just added a huge artificial totally imaginary trend to the last half of the raw data! Now it looks like the IPCC diagram in Figure 1, all right … but a six degree per century trend? And in the shape of a regular stepped pyramid climbing to heaven? What’s up with that?

Those, dear friends, are the clumsy fingerprints of someone messing with the data Egyptian style … they are indisputable evidence that the “homogenized” data has been changed to fit someone’s preconceptions about whether the earth is warming.

One thing is clear from this. People who say that “Climategate was only about scientists behaving badly, but the data is OK” are wrong. At least one part of the data is bad, too. The Smoking Gun for that statement is at Darwin Zero.

So once again, I’m left with an unsolved mystery. How and why did the GHCN “adjust” Darwin’s historical temperature to show radical warming? Why did they adjust it stepwise? Do Phil Jones and the CRU folks use the “adjusted” or the raw GHCN dataset? My guess is the adjusted one since it shows warming, but of course we still don’t know … because despite all of this, the CRU still hasn’t released the list of data that they actually use, just the station list.

Another odd fact, the GHCN adjusted Station 1 to match Darwin Zero’s strange adjustment, but they left Station 2 (which covers much of the same period, and as per Fig. 5 is in excellent agreement with Station Zero and Station 1) totally untouched. They only homogenized two of the three. Then they averaged them.

That way, you get an average that looks kinda real, I guess, it “hides the decline”.

Oh, and for what it’s worth, care to know the way that GISS deals with this problem? Well, they only use the Darwin data after 1963, a fine way of neatly avoiding the question … and also a fine way to throw away all of the inconveniently colder data prior to 1941. It’s likely a better choice than the GHCN monstrosity, but it’s a hard one to justify.

Figures 7 and 8 are indeed stunners: “homogenizing” in effect changes slight temperature declines into huge temperature increases.

To get the full flow of the argument, please read Eschenbach’s whole post.

Turning declines in raw data into rises in one’s tables is one of the things that led to Michael Bellesiles’s resignation from Emory in the Arming America scandal.

Remember, people are usually at least somewhat circumspect in writing emails to professional colleagues around the world. Thus, is it likely that the corruption in this subfield of climatology is LESS serious or MORE serious than the scientists would disclose to their colleagues in their own emails?

A small group, including several prominent physicists, are asking the American Physical Society to rescind its political statement on climate change (tip to Bishop Hill):

Dear fellow member of the American Physical Society:

This is a matter of great importance to the integrity of the Society. It is being sent to a random fraction of the membership, so we hope you will pass it on.

By now everyone has heard of what has come to be known as ClimateGate, which was and is an international scientific fraud, the worst any of us have seen in our cumulative 223 years of APS membership. For those who have missed the news we recommend the excellent summary article by Richard Lindzen in the November 30 edition of the Wall Street journal, entitled “The Climate Science isn’t Settled,” for a balanced account of the situation. It was written by a scientist of unquestioned authority and integrity. A copy can be found among the items at http://tinyurl.com/lg266u, and a visit to http://www.ClimateDepot.com can fill in the details of the scandal, while adding spice.

What has this to do with APS? In 2007 the APS Council adopted a Statement on global warming (also reproduced at the tinyurl site mentioned above) that was based largely on the scientific work that is now revealed to have been corrupted. (The principals in this escapade have not denied what they did, but have sought to dismiss it by saying that it is normal practice among scientists. You know and we know that that is simply untrue. Physicists are not expected to cheat.)

We have asked the APS management to put the 2007 Statement on ice until the extent to which it is tainted can be determined, but that has not been done. We have also asked that the membership be consulted on this point, but that too has not been done.

None of us would use corrupted science in our own work, nor would we sign off on a thesis by a student who did so. This is not only a matter of science, it is a matter of integrity, and the integrity of the APS is now at stake. That is why we are taking the unusual step of communicating directly with at least a fraction of the membership.

If you believe that the APS should withdraw a Policy Statement that is based on admittedly corrupted science, and should then undertake to clarify the real state of the art in the best tradition of a learned society, please send a note to the incoming President of the APS ccallan@princeton.edu, with the single word YES in the subject line. That will make it easier for him to count.

Bob Austin, Professor of Physics, Princeton
Hal Lewis, emeritus Professor of Physics, University of California, Santa Barbara
Will Happer, Professor of Physics, Princeton
Larry Gould, Professor of Physics, Hartford
Roger Cohen, former Manager, Strategic Planning, ExxonMobil

Bishop Hill:

The bristlecone pines that created the shape of the Hockey Stick graph are used in nearly every millennial temperature reconstruction around today, but there are also a handful of other tree ring series that are nearly as common and just as influential on the results. Back at the start of McIntyre’s research into the area of paleoclimate, one of the most significant of these was called Polar Urals, a chronology first published by Keith Briffa of the Climate Research Unit (CRU) at the University of East Anglia. At the time, it was used in pretty much every temperature reconstruction around. In his paper, Briffa made the startling claim that the coldest year of the millennium was AD 1032, a statement that, if true, would have completely overturned the idea of the Medieval Warm Period. It is not hard to see why paleoclimatologists found the series so alluring. . . .

[In 2005, Steven] McIntyre discovered that an update to the Polar Urals series had been collected in 1999. Through a contact he was able to obtain a copy of the revised series. Remarkably, in the update the eleventh century appeared to be much warmer than in the original — in fact it was higher even than the twentieth century. This must have been a severe blow to paleoclimatologists, a supposition that is borne out by what happened next, or rather what didn’t: the update to the Polar Urals was not published, it was not archived and it was almost never seen again.

With Polar Urals now unusable, paleclimatologists had a pressing need for a hockey stick shaped replacement and a solution appeared in the nick of time in the shape of a series from the nearby location of Yamal.

The Yamal data had been collected by a pair of Russian scientists, Hantemirov and Shiyatov, and was published in 2002. In their version of the data, Yamal had little by way of a twentieth century trend. Strangely though, Briffa’s version, which had made it into print before even the Russians’, was somewhat different. While it was very similar to the Russians’ version for most of the length of the record, Briffa’s verison had a sharp uptick at the end of the twentieth century — another hockey stick, made almost to order to meet the requirements of the paleoclimate community. Certainly, after its first appearance in Briffa’s 2000 paper in Quaternary Science Reviews, this version of Yamal was seized upon by climatologists, appearing again and again in temperature reconstructions; it became virtually ubiquitous in the field: apart from Briffa 2000, it also contributed to the reconstructions in Mann and Jones 2003, Jones and Mann 2004, Moberg et al 2005, D’Arrigo et al 2006, Osborn and Briffa 2006 and Hegerl et al 2007, among others.

When McIntyre started to look at the Osborn and Briffa paper in 2006, he quickly ran into the problem of the Yamal chronology: he needed to understand exactly how the difference between the Briffa and Hantemirov versions of Yamal had arisen. McIntyre therefore wrote to the Englishman asking for the original tree ring measurements involved. When Briffa refused, McIntyre wrote to Science, who had published the new paper, pointing out that, since it was now six years since Briffa had originally published his version of the chronology, there could be no reason for withholding the underlying data. After some deliberation, the editors at Science declined the request, deciding that Briffa did not have to publish anything more as he had merely re-used data from an earlier study. McIntyre should, they advised, approach the author of the earlier study, that author being, of course, Briffa himself. Wearily, McIntyre wrote to Briffa again, this time in his capacity as author of the original study in Quaternary Science Reviews and he was, as expected, turned down flat.

That was how the the investigation of the Yamal series stood for the next two years until, in July 2008, a new Briffa paper appeared in the pages of the Philosophical Transactions of the Royal Society B, the Royal Society’s journal for the biological sciences. The new paper discussed five Eurasian tree ring datasets, which, in fairly standard Hockey Team fashion, were unarchived and therefore not succeptible to detailed analysis. Among these five were Yamal and the equally notorious Tornetrask chronology. McIntyre observed that the only series with a strikingly anomolous twentieth century was Yamal. It was frustratingly therefore that he had still not managed to obtain Briffa’s measurement data. It appeared that he was going to hit another dead end. However, in the comments to his article on the new paper, a possible way forward presented itself. A reader pointed out that the Royal Society had what appeared to be a fairly clear and robust policy on data availability:

As a condition of acceptance authors agree to honour any reasonable request by other researchers for materials, methods, or data necessary to verify the conclusion of the article...Supplementary data up to 10 Mb is placed on the Society’s website free of charge and is publicly accessible. Large datasets must be deposited in a recognised public domain database by the author prior to submission. The accession number should be provided for inclusion in the published article.

Having had his requests rejected by every other journal he had approached, McIntyre had no great expectations that the Royal Society would be any different, but there was no harm in trying and he duly sent off an email pointing out that Briffa had failed to meet the Society’s requirement of archiving his data prior to submission and that the editors had failed to check that Briffa had done so. The reply, to McIntyre’s surprise, was very encouraging:

We take matters like this very seriously and I am sorry that this was not picked up in the publishing process.

. . . Had Briffa made a fatal mistake?

Summer gave way to autumn and as October drew to a close, McIntyre had still heard nothing from the Royal Society. However, in response to some further enquiries, the journal sent McIntyre some more encouraging news — Briffa would be producing most of his data, although not immediately. Most of it would be available by the end of the year, with the remainder to follow in early 2009.

The first batch of data appeared on schedule in the dying days of 2008 and it was something of a disappointment. The Yamal data, as might have been expected, was to be archived with the second batch, so there would be a further delay before the real action could start. Meanwhile, however, McIntyre could begin to look at what Briffa had done elsewhere. It was not to be plain sailing. For a start, Briffa had archived data in an obsolete data format, last used in the era of punch-cards. This was inconvenient, and apparently deliberately so, but it was not an insurmountable problem — with a little work, McIntyre was able to move ahead with his analysis. Briffa had also thrown a rather larger spanner in the works though: while he had archived the tree ring measurements, he had not supplied any metadata to go with it — in other words there was no information about where the measurements had come from. . . .

[I]n late September 2009, a reader pointed out to McIntyre that the remaining data was now available. It had been quietly posted to Briffa’s webpage, without announcement or the courtesy of an email to McIntyre. It was nearly ten years since the initial publication of Yamal and three years since McIntyre had requested the measurement data from Briffa. Now at last some of the questions could be answered.

When McIntyre started to look at the numbers it was clear that there were going to be the usual problems with a lack of metadata, but there was more than just this. In typical climate science fashion, just scratching at the surface of the Briffa archive raised as many questions as it answered. Why did Briffa only have half the number of cores covering the Medieval Warm Period that the Russian had reported? And why were there so few cores in Briffa’s twentieth century? By 1988 there were only 12 cores used, an amazingly small number in what should have been the part of the record when it was easiest to obtain data. By 1990 the count was only ten, dropping still further to just five in 1995. Without an explanation of how the selection of this sample of the available data had been performed, the suspicion of ‘cherrypicking’ would linger over the study, although it is true to say that Hantemirov also had very few cores in the equivalent period, so it is possible that this selection had been due to the Russian and not Briffa.

The lack of twentieth century data was still more remarkable when the Yamal chronology was compared to the Polar Urals series, to which it was now apparently preferred. The ten or twelve cores used in Yamal was around half the number available at Polar Urals, which should presumably therefore have been considered the more reliable. Why then had climatologists almost all preferred to use Yamal? Could it be because it had a hockey stick shape? . . .

As so often in McIntyre’s work, the clue that unlocked the mystery came from a rather unexpected source. At the same time as archiving the Yamal data, Briffa had recorded the numbers for another site discussed in his Royal Society paper: Taimyr. Taimyr had, like Yamal, also emerged in Briffa’s Quaternary Science Reviews paper in 2000. However, in the Royal Society paper, Briffa had made major changes, merging Taimyr with another site, Bol’shoi Avam, located no less than 400 kilometres away. While the original Taimyr site had something of a divergence problem, with narrowing ring widths implying cooler temperatures, the new composite site of Avam–Taimyr had a rather warmer twentieth century and a cooler Medieval Warm Period. The effect of this curious blending of datasets was therefore, as so often with paleoclimate adjustments, to produce a warming trend. This however, was not what was interesting McIntyre. What was odd about Avam–Taimyr was that the series seemed to have more tree cores recorded than had been reported in the two papers on which it was based. So it looked as if something else had been merged in as well. But what? . . .

At the same time, McIntyre’s rough cut approach assigned 103 cores to Taimyr, a number which meant that there were still over 100 cores still unallocated. The only way to resolve this conundrum was by a brute force technique of comparing the tree identification numbers in the dataset to tree ring data in the archives. In this way, McIntyre was finally able to work out the provenance of at least some of the data.

Forty-two of the cores turned out to be from a location called Balschaya Kamenka, some 400 km from Taimyr. The data had been collected by the Swiss researcher, Fritz Schweingruber. The fact that the use of Schweingruber’s data had not been reported by Briffa was odd in itself, but what intrigued McIntyre was why Briffa had used Balschaya Kamenka and not any of the other Schweingruber sites in the area. Several of these were much closer to Taimyr — Aykali River was one example, and another, Novaja Rieja, was almost next door.

By this point then, McIntyre knew that Briffa’s version of Yamal was very short of twentieth century data, having used just a selection of the available cores, although the grounds on which this selection had been made was not clear. It was also obvious that there was a great deal of alternative data available from the region, Briffa having been happy to supplement Taimyr with data from other locations such as Avam and Balschaya Kamenka. Why then had he not supplemented Yamal in a similar way, in order to bring the number of cores up to an acceptable level?

The reasoning behind Briffa’s subsample selection may have been a mystery, but with the other information McIntyre had gleaned, it was still possible to perform some tests on its validity. This could be done by performing a simple sensitivity test, replacing the twelve cores that Briffa had used for the modern sections of Yamal with some of the other available data. Sure enough, there was a suitable Schweingruber series called Khadyta River close by to Yamal, and with 34 cores, it represented a much more reliable basis for reconstructing temperatures.

McIntyre therefore prepared a revised dataset, replacing Briffa’s selected 12 cores with the 34 from Khadyta River. The revised chronology was simply staggering. The sharp uptick in the series at the end of the twentieth century had vanished, leaving a twentieth century apparently without a significant trend. The blade of the Yamal hockey stick, used in so many of those temperature reconstructions that the IPCC said validated Michael Mann’s work, was gone.

As McIntyre’s work has repeatedly shown, the Hockey Stick was always highly dependent on which samples were selected and the extent to which inconvenient data from particular years were omitted for some samples but not for others.

The evidence of data suppression and of cherry-picking (though circumstantial) is quite strong. It is stunning that that Briffa would go so far to support the Hockey Stick that he introduced data from datasets, researchers, and locations that he did not disclose having used in his published paper. If the CRU would like to rejoin the community of scientists, it should compel Keith Briffa (and Phil Jones as well) to stop their stonewalling and release their data, metadata, and computer code immediately.

And don’t just take Briffa’s and Jones’s word for it. The CRU should call up Steven McIntyre and ask him to send them a list of what data and metadata is still being suppressed by Briffa, Jones, or other CRU staff — perhaps with a ranking of the most important omissions.

Kudos to the Royal Society for forcing Briffa to release some of his data, but they should follow up on their disclosure requirement by making Briffa release the metadata indicating which tree rings he used.

And, of course, Kudos to McIntyre and to the Bishop Hill blog.

UPDATE:

Briffa’s response to McIntyre can be found here.

McIntyre’s comments on that response are here.

Substantively, I disagree with its treatment of the evidence in favor of the Medieval Warming Period being warmer than the 1990s as if it were well established by scientific evidence. Even Steven McIntyre, who debunked the Hockey Stick, is generally careful not to assert that as fact. Because of sampling problems and statistical issues, McIntyre views the state of the evidence as insufficient to establish with adequate certainty which period was warmer. Nonetheless, the substantial evidence that the Medieval period was indeed warmer grows every year.

JoNova:

In 1995 everyone agreed the world was warmer in medieval times, but CO2 was low then and that didn’t fit with climate models. In 1998, suddenly Michael Mann ignored the other studies and produced a graph that scared the world — tree rings show the “1990’s was the hottest decade for a thousand years”. Now temperatures exactly “fit” the rise in carbon! The IPCC used the graph all over their 2001 report. Government departments copied it. The media told everyone.

But Steven McIntyre was suspicious. He wanted to verify it, yet Mann repeatedly refused to provide his data or methods — normally a basic requirement of any scientific paper. It took legal action to get the information that should have been freely available. Within days McIntyre showed that the statistics were so flawed that you could feed in random data, and still make the same hockey stick shape nine times out of ten. Mann had left out some tree rings he said he’d included. If someone did a graph like this in a stock prospectus, they would be jailed.

Astonishingly, Nature refused to publish the correction. It was published elsewhere, and backed up by the Wegman Report, an independent committee of statistical experts.

In 2009 McIntyre did it again with Briffa’s Hockey Stick. After asking and waiting three years for the data, it took just three days to expose it too as baseless. For nine years Briffa had concealed that he only had 12 trees in the sample from 1990 onwards, and that one freakish tree virtually transformed the graph. When McIntyre graphed another 34 trees from the same region of Russia, there was no Hockey Stick.

The sharp upward swing of the graph was due to one single tree in Yamal.

Skeptical scientists have literally hundreds of samples. Unskeptical scientists have one tree in Yamal, and a few flawed bristlecones . . . .

The Briffa reconstruction mentioned is the one that prompted the “hide the decline” comment. Post-1960 tree-ring data was deleted because it did not match the temperature data, a discrepancy that both created an impression of warming rather than cooling and called into question the use of those tree rings in the first place.

The Bishop Hill post goes into great detail to show how the UN’s IPCC was complicit in the conspiracy of scientists to keep the Hockey Stick thesis alive and to retain it as sound science in the IPCC Report.

Here is an excerpt dealing with data manipulation and the initial refusal to share data:

We have seen above that one of the chief criticisms of the hockey stick was the fact that its author, Michael Mann, had withheld the validation statistics so that it was impossible for anyone to gauge the reliability of the reconstruction. These validation statistics were to be key to the subsequent story. At the time of their press release Wahl and Amman (colleagues of Mann) had made public the computer code that they’d used in their papers. By the time their paper was submitted to Climatic Change, McIntyre (the statistician at Climate Audit) had reconciled their work with his own so that he understood every difference. And he therefore now knew that Wahl and Amman’s work suffered from exactly the same problem as the hockey stick itself: the R2 number was so low as to suggest that the hockey stick had no meaning at all, although another statistic, the reduction of error statistic (or RE) was relatively high. It was only this latter figure that had been mentioned in the paper. In other words, far from confirming the scientific integrity of the hockey stick, Wahl and Amman’s work confirmed McIntyre’s criticisms of it! McIntyre’s first action as a peer reviewer was therefore to request from Wahl and Amman the verification statistics for their replication of the stick. Confirmation that the R2 was close to zero would strike a serious blow at Wahl and Amman’s work.

Wahl and Amman’s response was to refuse any access to the verification numbers, a clear flouting of the journal’s rules. As a justification of this extraordinary action, they claimed that they had shown that McIntyre’s criticisms had been rebutted in their forthcoming GRL paper, despite the fact that the paper had been rejected by the journal some days earlier. At the start of July, with his review of the CC paper complete, McIntyre took the opportunity to probe this point, by asking the journal to find out the anticipated publication date of the GRL paper. Wahl and Amman were forced to admit the rejection, but they declared that it was unjustified and that they would seek publication elsewhere.

With the replication of the hockey stick in tatters, reasonable people might have expected some sort of pause in the political momentum. Seasoned observers of the climate scene, however, will be unsurprised to hear that global warming eminences grises like Sir John Houghton and Michael Mann continued to cite the Wahl and Amman papers . . . .

While the AGU (American Geophysical Union) was meeting in San Francisco, Climate Change had provisionally accepted Wahl and Amman’s CC paper, any objections which might have been raised by McIntyre swept aside by simple means of not inviting him to review the second draft. The resubmitted version of the paper turned out to be almost identical to the old one, except that a new section on the statistical treaments had been added, presumably as a condition of acceptance. And here there was an upside because, buried deep within the paper, Amman and Wahl had quietly revealed their verification R2 figures, which were, just as McIntyre had predicted, close to zero for most of the reconstruction, strongly suggesting that the hockey stick had little predictive power. . . .

However, the [RE] figure of 0.52 was insufficient for W & A’s purposes. Their problem was that the key component of the hockey stick had a verification RE of 0.48, leaving it tantalisingly just below the calculated benchmark. They needed it to be in the top rank and getting it there was going to be tricky. For each simulation, a thousand runs through the statistical sausage machine were perfomed and the RE number, the correlation with the temperature record, was recorded. Then all the runs were sorted in order of RE value, the best runs having the highest RE and the worst the lowest. W & A needed to show that the hockey stick RE was right up there with the best simulations — in the top one percent. While its RE was high, it wasn’t good enough. And it was no good simply removing runs which had a higher score than the hockey stick, since this would not increase its position enough — they would have been reducing the total number of runs as well as the number of runs which were scoring better than the hockey stick. To get the answer they needed, the higher scoring runs had to be made to be lower than the hockey stick, but left in the calculation.

To do this, Wahl and Amman came up with a value which they called a calibration/verification RE ratio. As the name suggests, this was the ratio of the two RE numbers for calibration and verification. This ratio is however, entirely unknown to statistics, or to any other branch of science. But it was not plucked out of the air. The ratio and the threshold value which was set for it by Wahl and Amman was carefully calculated. They argued that any run with a ratio less than 0.75 should be assigned a score of –9999. Since the hockey stick had a score of 0.813, 0.75 was pretty much the highest level you could go to without rejecting the hockey stick itself. However if you set your ratio threshold too low, not enough runs would be rejected and the hockey stick would no longer be “99% significant”. Some of the results of this ratio were entirely perverse — it was possible for a run that had scored a reasonably good RE in the calibration (there was a good correlation between it and the actual temperatures) to be thrown out of the final assessment on the grounds that it had done very well in the verification — the correlation with actual temperatures was considered too good!

With this new, and pretty much entirely arbitrary hurdle in place, Wahl and Amman were able to reject several of the runs which stood between the hockey stick and what they saw as its rightful place as the gold standard for climate reconstructions. That the statistical foundations on which they had built this paleoclimate castle were a swamp of misrepresentation, deceit and malfeasance was, to Wahl and Amman, an irrelevance. For political and public consumption, the hockey stick still lived, ready to guide political decision-making for years to come.

One quick test for telling whether a UN or US government climate report is based on solid science and whether a climate scientist is both honest and informed is whether they present Mann’s Hockey Stick thesis as if it is true and established by solid scientific evidence.

Fear of Failing:  the Effects of U.S. News & World Report Rankings on U.S. Law Schools, by Michael Sauder, and Wendy Espeland.  Love ‘em or hate ‘em, the rankings are a fact of life for law schools.  This report looks at the effect of the USN rankings on legal education, and it’s not peripheral.

From the Executive Summary:

One general effect of the USN rankings on law schools is that it has created pressure on law school administrators to redistribute resources in ways that maximize their scores on the criteria used by USN to create the rankings, even if they are skeptical that this is a productive use of these resources. This redistribution is illustrated by two examples mentioned consistently by the administrators interviewed: (a) increases in marketing expenditures aimed toward raising reputation scores in the USN survey and (b) increases in merit scholarships intended to improve the statistical profile of incoming classes. A more subtle form of resource redistribution is also described in this section: the adoption of strategies by some schools to “game” the rankings.

Some forms of this redistribution comes in the forms of brochures and other publications designed to enhance a school’s reputation, which is a full 40% of the ranking.  Many administrators acknowledge that many these enhancing publications are probably not read before being recycled (go green!), but peer pressure makes them spend upwards of $100,000 to produce and distribute these publications anyway.  Library volume count, by the way, represents 0.75% of the weight of an over all score.  That explains much more as to why academic law libraries are hardly ever enhanced with an eye to the rankings.

Schools game the system by giving out financial aid to students with high LSAT scores as a way of bringing in a higher quality metric to the entering class and student body as a whole.  Some schools create part-time or probationary programs to keep the academically weaker students off the books.  Student quality (LSAT, GPA) is 12.5% of the full ranking.  Things such as need-based scholarships, enhancements to programs, improved quality to areas of the school not affecting the rankings all tend to take a back seat at the most rankings-obsessed schools.  The pressure on admissions and career services offices is tremendous.  Schools put up with it because potential students do take rankings seriously.  Rankings even affects faculty recruitment and the ability of faculty to publish in quality journals.  While none of this is a surprise, the report is a nice compilation of how schools have adapted their budgets and practices to account for their survey information.  There is also a nice table that breaks down the ranking standards and weights.

The report is available on the LSAC site.  Because of the way the site is constructed, there is no direct URL.  However, anyone interested in finding it should start at the main LSAC page, click on Research Data from the menu bar running across the top of the screen, roll over the graphic for Research and select Grant Reports.  The report should be available from the page that comes up.  It’s numbered GR-07–02.  [MG]

One question I have long had about LSAT scores is whether they tend to favor the youngest applicants.  My brother the neuro-psychiatrist points out to me that IQ scores on average tend to go down starting quite early in adulthood, and suggests that particularly the logical games section of the LSAT functions like an IQ test.  If that were true, and younger takers of the LSAT had higher scores, other things equal, and if USNWR put enough pressure at the margin for higher LSAT scores (even for small increments, and I suspect the rankings do indeed create such marginal pressures), then the result might favor younger law classes.

And yet, if age is the thing that matters, the students being taken younger today will turn into those same “less smart” people tomorrow, so apart from the LSAT scores themselves, what is the advantage in this?  Do we as law schools think that in those younger years, those higher scores mean we can teach more advanced stuff in school?  Do we think that this compensates for having students who already know something of the world that lawyers regulate and intermediate?  I, for one, think that professional school is more professional, not less, if students are not coming direct from undergraduate studies — and I do not favor in the least a “trade school” model of legal education.  Rather, a thoroughly intellectual law study that takes advantage of the fact that students are not entirely operating in their imaginations about the world of work.

Why do I think think this matters?  Because, if true, it tends to squeeze out students who have spent significant years doing work in the real world — as (again, if true) merely an artifact of age.  I think offhand of one person — Harvard undergraduate, did very well there in economics, near perfect SATs — who has spent the last eight years first learning Arabic, and then reporting for various wire services from the Middle East.  Well, he can see the writing on the wall in journalism, and wants to go to law school.  From the standpoint of the tests, however, he was smarter and a better bet as a law student when he first got out of Harvard undergrad.  He’s in Cairo but does not think, probably correctly, that coming back to do Kaplan would make that much difference and, frankly, it’s an idiotic idea.  (My sense of this is anecdotal, of course, but I can think of various people like him — I don’t mean folks who might be considered “interesting” even if not “smart” in the usual terms — I mean people who have all their lives been “smart” in the sense of top schools, top test scores, but find that after significant time doing something real, test performance is not what it used to be.)

In the past, someone like him would be considered an interesting possibility for Harvard or Yale law, and the LSAT score would be a consideration, but taking him would not damage the school’s USNWR scores.  Now, the USNWR rankings mean that if the school decides that someone like him means smart + worldly experience + willingness to do something (in those years) other than practice for the LSAT while being an analyst on Wall St, well, it will cost the school.  Its LSAT composite goes down.  If I’m right about the underlying assumption of age and LSAT score, on the margin, taking these older, experienced people, even the ones who, earlier in life, have hit the standard “smart” benchmarks, is a real hit to the school’s rankings.

Anecdotally, I think this is happening.  No data to really know, but I suspect it has affected the composition of law classes, in terms of age and experience outside of school.  Anyone know of data that would tend to confirm or disconfirm this?

In collective response to Doug, Steve, and Ann, I agree that the question isn’t whether blogging “is” scholarship, “can be” scholarship, or “has to be” scholarship. Rather, I think the question is the extent to which those who write scholarly blog posts are participating in a useful way (and are recognized as participating in a useful way) in the scholarly enterprise. My sense is that they often are, more than I anticipated in 2005.

The current case, like the previous case, arises from the 1891 Agreement between the Dartmouth Trustees and the alumni of the College, acting through the Association of Alumni, that gave the alumni the right to elect half of the non-ex officio members of the Board of Trustees.  At the time, the Board was comprised of 12 members, of which 2 served ex officio (the Governor of New Hampshire and the Dartmouth president).  Upon striking the agreement, over the next two years, 5 of the appointed trustees resigned and were replaced with elected trustees.  Over time, the size of the board expanded, and by the time I was elected a trustee in 2005 there were 8 elected Alumni Trustees, 8 appointed Charter Trustees, and the Governor and College president as ex officio members.  As I have discussed in detail elsewhere, the 1891 Agreement was the culmination of decades of negotiations between the trustees and college administration on one hand and the alumni on the other.

In 2007 after a string of petition trustees were elected to the Board, a majority of trustees voted to impose a board-packing plan, which added 8 new appointed seats to the board, making 16 appointed and 8 elected trustees.  I won’t rehash that here, except to point interested readers to my earlier discussions as well as the Court’s excellent opinion which held that the plaintiffs in that case stated valid claims both on contract and promissory estoppel theories.  Importantly, the Court also held that the Association of Alumni had standing to sue and capacity to contract in that case, as well as to provide valid consideration, such as administering the Alumni Trustee elections.  For purposes of analysis on the current summary judgment motion, I am going to take it as given that the underlying contract claim is valid.

In Spring 2008, however, the alumni leaders who brought the suit had to stand for reelection and were voted out of office.  The winning slate of alumni loyal to the trustees and administration dismissed the suit.  Their campaign position had been that the alumni should have “negotiated” more with the trustees before bringing suit.  As the current plaintiffs note in their most recent brief, it thus came as quite a surprise when the suit was dismissed with prejudice, with the deliberate intent to try to foreclose a future lawsuit if negotiations broke down (it doesn’t actually work, as will be discussed below).  After all I’ve seen over the past few years, I thought that I was beyond being shocked by the sort of behavior described in the plaintiffs’ brief, but I confess that this surprised even me.  The College has not contested any of the claims in the briefs of the current plaintiffs with respect to the collusive behavior of the AoA leadership in settling the prior case.  Read the first 10 pages of so of the plaintiffs’ brief if you want to get a flavor of what happened.

I note in passing that almost two years have now gone by since the loyalist slate was elected.  Since that time, the trustees have never for a single moment ever suggested that they intend to back off from the board-packing plan, either publicly or privately.  It was, to put the matter gently, an unorthodox negotiating tactic for the newly-elected members of the AoA Ex Comm to immediately surrender its only bargaining chip (the right to sue to enforce parity).  This was a curious negotiating strategy, especially in light of the fact that the president of the Association of Alumni (John Mathias) is a lawyer.  The trustees, for their part, simply treated the matter as closed.  I’m afraid that to the extent that the current leaders of the AoA continue to state that the trustees are open to negotiation on this point, either they are exceedingly gullible or they think that the alumni are exceedingly gullible to believe them.  To their credit, the trustees have never even suggested for a moment that they are open to reconsideration, so the confusion is solely on the side of the alumni association leaders.

But last year a group of 7 alumni brought a new lawsuit as individual alumni to enforce the 1891 Agreement.  They claim that they were direct beneficiaries and third-party beneficiaries.  As I see the case, the core claim is that they are third-party beneficiaries of the 1891 Agreement and have the right to enforce the contractual promise of parity in the 1891 Agreement.  Dartmouth has filed a motion for summary judgment.  Reading all of the briefs (including one that I submitted focusing on the public policy questions raised by the case), if the judge applies the law correctly to the case, the plaintiffs should prevail on the summary judgment motion (and eventually will prevail in the case).  I’ve been teaching Contracts now for over a decade and this is the strongest third-party beneficiary case that I’ve ever seen.  In talking to one of my colleagues who also teaches Contracts, he accurately referred to this case as having “casebook quality facts” in terms of illustrating the doctrine of third-party beneficiaries.  Moreover, given the high quality of Judge Vaughan’s opinion in the first case, he is likely going to get this right.

Once understood, the plaintiffs’ case is simple and compelling.  The key to understanding why the 7 individual alumni plaintiffs are valid third-party beneficiaries is that they are organized for these purposes through the Association of Alumni, which is an unincorporated association.  In the first case, this legal status as an unincorporated association meant that the plaintiffs (which were the elected leaders of the AoA in that case) had to show that they had capacity to contract and to enforce the contract.  The Court held, correctly, that they did.  And the AoA itself provided consideration when it agreed, for example, to administer the elections of Alumni Trustees.

From this standpoint, the current case is actually much easier on this point.  It is precisely because the AoA is an unincorporated association that the 7 current plaintiffs can enforce the contract.  Because it is not a corporate entity, the AoA is fundamentally a collection of its individual members.  It exists on behalf of and to further the interests of its individual members not itself in a corporate capacity.  Thus, the entire purpose of the 1891 Agreement was to benefit the individual members of the AoA, not to benefit the AoA itself. It is each individual alumnus who is the beneficiary of the contract by given the right to vote for Alumni Trustees to comprise half of the Board.  The AoA doesn’t benefit–each alumnus benefits by having the right to vote.  The AoA is simply an instrumentality that is chosen for the alumni to administer their substantive rights under the agreement.  The AoA itself has no obvious rights as a corporate entity independent of the aggregate individual rights that comprise the Association.

Once the nature of the AoA as an unincorporated entity is understood, the case is an easy one to show that there is are viable third-party beneficiary claims that easily survive summary judgment.

There are two types of third-party beneficiaries: intended beneficiaries and beneficiaries by estoppel.  Dartmouth’s Motion for Summary Judgment fails on both counts in the current case.

Intended beneficiary: As noted above, the purpose of the 1891 Agreement was to provide a benefit to individual Dartmouth alumni by giving them the right to vote for half of the non-ex officio Trustees.  It turns out that this had a lot of other benefits (as I discuss in my brief), but that’s the essence of the deal.  As noted, this flows directly from the fact that the AoA is an unincorporated association–the whole contract makes sense when understood as being designed to benefit all of the individual alumni as intended beneficiaries (either directly or as third-party beneficiaries) rather than the AoA.  This is what my colleague had in mind in referring to this as casebook quality facts–if one wanted to design a contract with an intended third-party beneficiary, this is what it would look like.  (I note that for similar reasons the plaintiffs might also be direct beneficiaries, but I don’t think it is necessary to discuss that given how compelling the intended beneficiary claim is).

Beneficiary by Estoppel: The plaintiffs also argue that they are beneficiaries by estoppel.  This is just promissory estoppel where the reasonable reliance is by a third party.  The plaintiffs submitted an Affidavit by Dr. John Steel, a former petition trustee, who states that he relied on the 1891 Agreement in a number of ways over the years.  At the Summary Judgment stage the Court takes Steel’s claims as true for purposes of establishing whether there a contested issue of material fact.  Steel’s Affidavit certainly states reliance and any claim that he did not in fact rely would have to be an issue of credibility for trial that can’t be decided on the pleadings.  Moreover, given that the underlying Agreement was a valid contract and Dartmouth through its actions repeatedly ratified and reaffirmed the promise of parity in the 1891 Agreement, I don’t see how it could be argued that Steel’s as a matter of law Steel’s reliance was not reasonable.

So on the core third-party beneficiary claims in the case, the plaintiffs should win.  Indeed, this is pretty much hornbook law in this case.  The purpose of the contract was to benefit alumni as a class of third-party beneficiaries.  Moreover, at least one plaintiff has stated a claim as being a beneficiary by estoppel based on reasonable reliance on the contract, a question that cannot be resolved by summary judgment.

There are two other issues in the case that are quite straightforward and that I think require little discussion.

Res judicata: The first is the claim that this case is barred by res judicata from the first case being dismissed with prejudice.  The plaintiffs’ brief dispatches of this pretty easily.  First, the facts provided by the plaintiffs show that the first settled through extreme collusion between the plaintiffs and defendants (again, you have to read the brief to be able to believe this).  After the loyalist slate was elected, they entered into secret negotiations to settle the case.  The defendants even paid for the plaintiffs new lawyers to settle the case.  David Spalding, a Vice-President of Dartmouth, was also a participant on the plaintiffs’ side as the Secretary of the AoA.  Again, it is well-established law that where the plaintiff and defendant collude in a settlement, then they are not adverse parties for purposes of a judgment on the merits, which is what is necessary for res judicata to apply.  Thus, even if res judicata would be the basic rule, there is an exception here.

Second, there has to be an identity of parties.  Dartmouth claims that both cases were “controlled” by the Hanover Institute, a 501(c)(3) organization.  This doesn’t work for a couple of reasons.  First, when the loyalist slate decided to settle the case, quite obviously they were not operating under the control of the Hanover Institute.  Second, the Hanover Institute was not a plaintiff in either case and simply raised money for the lawsuits.  Which means that the plaintiffs could simply get a new “banker” and res judicata wouldn’t apply, which shows that the Hanover Institute isn’t the real party in interest, but in fact it is the individual plaintiffs.

So Dartmouth’s res judicata arguments are weak.

Finally, there is the question as to whether these plaintiffs have standing to sue as third-party beneficiaries.  Of course they do.  It is again hornbook law that if a party is a third-party beneficiary then that party has standing to sue to enforce its rights.  Where there is a third-party beneficiary, the standard rule is that duty can run to either the promisee or the third-paty beneficiary and either the promisee or the third-party has standing to sue to enforce the promise (Restatement (2d) section 305).  This is especially clear where the remedy being sought is specific performance, as is the case here (Restatement (2d) section 307).  So even if we assume for the sake of argument that the AoA was the promisee under the 1891 Agreement (as suggested above, a case could be made that in fact the individual alumni were actually the promisees and not third-party beneficiaries), individual alumni were quite obviously the intended beneficiaries of the agreement and have standing to sue.  As stated in the case (Hamill v. Maryland Casualty) that is in the casebook from which I teach, “It has been said that so long as the contract necessarily and directly benefits the third party, he may enforce it.”

But even if the individual alumni were considered for some reason to be incidental beneficiaries rather than intended beneficiaries they would probably still have standing to sue.  There is a longstanding rule that permits even incidental beneficiaries to sue if there is an inability of the promisee to enforce the right (such as because of death or disability) or an “outright refusal” of the promisee to enforce the rights.  This traditionally has arisen in the context of child support obligations where the right runs to the custodial parent, not to the children who are incidental beneficiaries.  But where the parent is unable or unwilling to enforce the child support agreement, the children have been given standing to do so.  The reason for the rule, and the exception, are both pretty obvious.  The reason for the rule is that the parent is assumed to have the child’s best interest at heart and the parent has her own incentive to enforce the contract.  Thus it is unnecessary to give the child the right to enforce the claim directly, which could give rise to redundant claims.  But the justification for the exception is obvious as well–where the parent is essentially a disloyal agent who is not acting in the best interests of the child, then the child has the right to sue to enforce the obligation.  That is essentially the case here with the unequivocal refusal of the leaders of the Association of Alumni to enforce the rights of the alumni under the 1891 Agreement.

In short, if the AoA’s leaders want to get rid of parity then they have to do it through an amendment to the AoA’s constitution.  A poll taken around the time of the board-packing plan found that 90%-plus of alumni supported the continuance of parity.  The AoA’s leaders can’t do it through a stealth, back-door process of engaging in a collusive bargain with a majority of the trustees to simply refuse to enforce the rights embodied in the 1891 Agreement.

In short, the Court in this case should deny Dartmouth’s summary judgment motion.  In fact, I think the issues in the current case may be even easier than the issues in the last case (which required a pretty sophisticated understanding of the nature of consideration and promissory estoppel).  Because of the AoA’s status as an unincorporated association, the most natural understanding of the 1891 Agreement was to make individual alumni the direct and/or third-party beneficiaries of the 1891 Agreement of giving them the right to elect half of Dartmouth’s Trustees.  And, if so, they plainly have the right to sue to enforce it.  Given that Judge Vaughan got the last case right, I expect he’ll probably get this case right too.

At that point President Kim and the majority of the trustees are going to have to figure out how much more of the alumni’s donated money they are going to continue to squander on their project to disenfranchise the alumni–and I would hope at some point the alumni would start asking questions about whether this is why they donate to the College.

Let me stress in closing that this is just my personal analysis of the case based on my years teaching and reading about Contracts.  I haven’t consulted with the lawyers for the plaintiffs.  These views are mine alone and should not be attributed to the lawyers for the plaintiffs or to anyone else.  Finally, this is obviously a blog post and not a brief so I haven’t provided chapter and verse for every argument here nor have I taken care to make sure that my language might be as precise as in a brief.  But I’ve been teaching Contracts for a long time and this is pretty basic stuff.

I agree with Fish that “affirmative action”  for conservatives or some such would be an inappropriate response to the gross ideological imbalance in American academia.  (On the other had, a little, okay, a lot, more self-consciousness by left academics regarding whether they are improperly implicitly or explicitly smuggling ideological considerations into hiring–I was once grilled by telephone, after the official interviews, by a senior professor regarding my views on affirmative action when being considered for a lateral chair, with the explicit premise that if I didn’t pass the quiz, the professor would vote against me and rally her allies against me–would be welcome).

And for reasons Fish discusses, even a completely ideologically neutral hiring process would likely perpetuate the one-sidedness of the American academy.  I think this is a problem, not because the conservative side is somehow “entitled” to “fair” representation within the academy, but because liberal students are currently not being well-served educationally by their professors.

In particular, studies show that approximately 40% of American adults consider themselves to be conservatives.  I would therefore posit that a well-educated American college graduate should have some idea of what mainstream conservatives think, and why they think it.

Yet the late controversy over Rush Limbaugh and the Rams suggests that many well-educated liberals don’t know the first thing about American conservatism.  In particular, I found it extremely troubling that so many columnists, bloggers, political figures, and so on, were gullible/ignorant enough to believe that a mainstream figure like Limbaugh publicly praised the assassination of MLK, or stated that “slavery had its merits,” without any apparent controversy at the times these alleged remarks were made, with no diminishing of his 20 million strong audience, and with no harm to his political standing among conservatives and within GOP circles.

I’m a libertarian, not a conservative, and I’ve probably listened to a total of less then ten hours of Limbaugh in my life, but it was obvious to me that these alleged statements were phony.  I would have hoped that they would have at least raised eyebrows among liberal commentators, such that they would have demanded a firm source before attributing them to Limbaugh.  But no, apparently a significant fraction of well-educated American liberals, the products of our best universities, thought it unexceptional, indeed, completely congruous, that a mainstream conservative figure would praise slavery and James Earl Ray.

I’m not sure what the solution to this problem is, but I do think it’s clear that many product liberal-leaning institutions, starting with the universities, are sufficiently engaged in groupthink that they lack the most basic curiosity about or knowledge of what their ideological adversaries believe, and are instead inclined to dismiss them entirely as mere evil reactionaries.  [And they are sufficiently isolated from contact with conservatives that they don’t have personal experiences to suggest otherwise; it’s easy enough, for example, to go to a top university, on to a major journalism school, and from there to the New York Times or MSNBC or The Huffington Post without every having had a serious  intellectual discussion with a conservative colleague or mentor.]  That’s not good for the universities, it’s not good for liberals themselves (isn’t easier to defeat one’s enemies if one first understands them?), and it’s not good for America.

UPDATE: In response to some of the comments, I’m hardly suggesting that liberal students be required to study Rush Limbaugh.  What I am suggesting is that if the elite academy wasn’t so ideologically one-sided, both with regard to the faculty and the student body, graduates of these universities would have more contact with conservative ideas and conservative individuals (assumedly some thoughtful ones) and would therefore be less likely to adopt an uninformed, stereotypical view of conservatives and conservatism.  Undoubtedly, there are some self-identified conservatives who fit liberal stereotypes, just as there are some self-identified liberals who fit conservative stereotypes. But a conservative would be hard-pressed to, say, attend an Ivy League school and not be confronted with people and ideas that defy these stereotypes.  By contrast, I think that many liberals who arrive at such a school with stereotypes of conservative people and ideas will not only not find themselves challenged, but will find those stereotypes reinforced by the general intellectual climate, such that they could become an educated adult blogger, staffer at MSNBC, and so forth, and believe just about any nonsense said about any prominent conservative like Limbaugh.

FURTHER UPDATE: This seems like a good place to reprint an anecdote I published once before:

Senior year of college, I took a political economy class from a very left-wing, but very fair-minded, Sociology professor. One of the books he assigned was David Stockman’s The Triumph of Politics. Stockman was a libertarian Republican who served as Reagan’s first budget director. At the beginning of the book, he provided a concise summary of why he thought limited government was beneficial to the American people. When the class discussed the book, one of my fellow seniors exclaimed, “This was very interesting to me! He seems like a good guy... I didn’t know that any conservatives actually cared about people!.” Kudos to this professor for enlightening my classmate, but how does someone get to her senior year of college without being exposed to the radical idea that not all conservatives are innately evil?

I’d add that it’s hardly good for American democracy and public discourse that many students graduate without such enlightenment.

Thanks for your courtesy in letting me know about your posting on Volokh, which I read with great interest (as I also did the ensuing comments from others).

Surely it’s clear that my remark about people with no discernible expertise refers to those who have launched wild and abusive attacks on Sand, not to every blogger who has commented on the book. The latter would indeed have been a wild, absurdly over-general charge — and in any case I have of course not read more than a fraction of the truly remarkable outpouring of commentary, in several languages, which continues to appear. I do not find abuse of that kind in your own criticism, so naturally did not have you among my implied targets.  However, where you say you ‘haven’t seen anyone call Sand anti-Semitic’, I’m afraid I have come across many such instances. Just try Googling the relevant words!

As to my own knowledge or lack thereof, a more careful glance through my past publication list would reveal that I have written a fair bit over the years on Israeli history and politics, in both journalistic and more academic veins. I have been working for some while on a book on Israel’s ‘history wars’, and from both that and a more longstanding ‘layperson’s interest in Jewish history’ am I think fairly well acquainted with most of the very disparate controversies into which Sand ventures. Insofar as, in my view, the real point and purpose of Sand’s polemic is not about ancient history but present-day Israeli politics, I have followed these fairly closely for many years. Apart from anything else, I am closely connected to the country through what E.P. Thompson once called ‘the accident of marriage’.

Both you, and more than one of the respondents so far, apparently see both Sand’s book and my review as serving ‘an anti-Zionist agenda’. I leave it to Sand himself to say whether ‘anti-Zionist’ is an accurate label for his views (though he clearly signals his belief in Israel’s right to exist). I’ve long doubted whether a crude, simple division of people’s worldviews between Zionist and anti-Zionist is a helpful way of mapping the complexities either of Israeli politics or of attitudes to it. And ironically I have myself more than once in the past come under attack for supposedly engaging in ‘Zionist’ apologetics. So long as I continue thus occasionally to be assailed from both ends of the spectrum, I shall feel I’m getting something right.

P.S. I should have added that I in my turn agree entirely with the subsequent comment you posted, thus: “‘Totally agree. I’ve said before that I find these historical debates rather irrelevant to the Israeli-Palestinian conflict. Even if few Jews are descended from ancient Judeans, or even if most Palestinians’ ancestors didn’t live in Israel Palestine until rather recently, that wouldn’t in any way change the fact that Israeli Jews believe themselves to believe a national entity, as do Palestinian Arabs, and act on that basis. Either group’s national ‘rights’ must be based on their modern national identity, not their ancient ancestry.” Hear, hear!

[Having found some common ground between myself and Prof. Howe, and appreciating his gentlemanly response, I will leave it at that–DB]

But here’s the unintentionally ironic part:

The blogosphere has been buzzing with wild charges and vulgar abuse against Sand’s book – most repeatedly, predictably and depressingly, calling it anti-Semitic. Almost none of those assailants, naturally, has any discernible expertise in any of the fields Sand touches on.

In fact, much of the criticism I’ve seen (plus my own), is either by people who do have some demonstrated expertise in the area, or who link to/cite those who do.  (For that matter, I haven’t seen anyone call Sand anti-Semitic, but many have correctly pointed out that his theory that most Ashkenazic Jews descended from Khazars finds virtually no support among geneticists or linguists, but is quite popular with anti-Semites around the world, who have been basically the only ones keeping the “controversy” alive.)

But what of Prof. Howe?  From his website:

My main focus has been on British imperial history, including the role of imperial questions in domestic British politics; but my writing also involves a strong comparative element, which embraces a growing interest in ideas about American ‘empire’ today. Much of my recent and current work engages with the very concept of colonialism and associated terms, including reflection on and probing of the limits, the uses and indeed the abuses of the concept itself. Much, too, addresses broad theoretical and comparative questions about anti– and post-colonialism. I’m currently completing three interrelated books: on the intellectual consequences of decolonisation, on anticolonial intellectuals, and on representations and legacies of late-colonial violence.

Not only does this statement of his scholarly interests not betray any “discernable expertise” on Jewish history, but Howe’s list of over two hundred publications contains not a single one with the words “Jew” or “Jewish” in the title.

Sure, he and Sand may have a common interest in colonialism and “post-colonialism.”  But the controversy over Sand’s book is not over post-colonial theory, writ large, or Sand’s theory of nationalism, but over Sand’s specific historical claims about the purported “invention” of the concept of Jewish nationhood by 19th-century European Zionist intellectuals who purportedly had little genetic or other connection with either the ancient Judeans or other Jewish communities around the world.

In other words, Howe is likely  more ignorant about the actual subject matter at hand than many of the bloggers he excoriates (many of whom have at least a layperson’s interest in Jewish history), and there is certainly nothing in his review that suggests otherwise.

UPDATE: One reasonable interpretation of Howe’s review is that Sand’s book is useless academically, because it either consists of rehashed, well-known information, or of rampant speculation (“in intellectual and historical terms, Sand is rehashing some old arguments and even setting up straw men for too-easy demolition”). But the book is nevertheless valuable because it serves an anti-Zionist agenda (Howe’s lack of expertise on the matter doesn’t stop him from concluding, dubiously, that “Zionism and the Israeli state’s most basic founding assumptions depend heavily (though, as [Sand’s] concedes, never exclusively) on the ethno-nationalist pseudo-history he attacks.”)  Yet another triump for “truthiness” in academic discourse?  Put another way, replacing whatever combination of myth and fact that is accepted among the lay public in Israel with Sand’s equally (at least) dubious version of myth and fact wouldn’t advance the quest for truth, and is a shameful ambition for an academic, but it might serve someone’s political interests if he prefers Sand’s politics to mainstream Israeli politics.

“[T]he most important function of the system, both for purposes of its continued survival and for purposes of controlling the market for its products, is the production of the producers. The academic disciplines effectively monopolize (or attempt to monopolize) the production of knowledge in their fields, and they monopolize the production of knowledge producers as well.” Menard applies the above statement to law as well as to humanities Ph.D. programs, but as he explicates, the problem is a lot worse in the Ph.D. context, because the credential takes so much longer to obtain.

PURPOSE OF STUDY: You are invited to participate in a research study for a political psychology seminar. The purpose of the study is to explore where people get their political information and how credible they perceive the sources to be.

CONFIDENTIALITY: The survey will be completely anonymous and participants will never be contacted post completion.

COMPENSATION: Post completion, participants will have the opportunity to be entered into a raffle for a $50 gift certificate to Amazon.com.

RIGHT TO REFUSE OR WITHDRAW: The decision to participate in this study is entirely up to you. You may refuse to take part in the study at any time without affecting your relationship with the investigators of this study, or Smith College. Your decision will not result in any loss or benefits to which you are otherwise entitled. You have the right not to answer any single question, as well as to withdraw completely from the study at any point during the process; additionally, you have the right to request that the researcher not use any of your research material up to that point.

RIGHT TO ASK QUESTIONS: You have the right to ask questions about this research study and to have those questions answered by us before, during or after the research. If you have any further questions about the study, at any time feel free to contact Lauren Duncan at lduncan@smith.edu or by telephone at (413) 585‑3763. If you like, a summary of the results of the study will be sent to you. If you have any other concerns about your rights as a research participant that have not been answered by the investigators, you may contact Phil Peake, Chair, the Smith College Institutional Review Board at (413) 585‑3914.

Clicking the ‘Next’ button indicates that you have decided to volunteer as a research subject for this study and that you have read and understood the information provided above.

It says above, if you have any further questions ... I have this one:  Ms Duncan and Professor Peake, what made you think this was an acceptable use of other people’s blog comments sections? Let me ask VC commenters, am I being too nice, too nasty, or reasonable?  In what ways, if any, is this different from using the VC comments to sell Viagra? (Update:  Oh heck, I’ll stop being grumpy about this, though it is annoying — if you want to take the survey and support Smith College undergraduates, click through here.)

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.

(Update.  I’m going to take out some stuff  below– sitting in airports puts me in a bad mood, and it showed.  I’ll repost some of it expressing less irritation another time.)

Moral Machines: Teaching Robots Right from Wrong, Wendell Wallach and Collin Allen (Oxford 2009).  If anyone follows my posts over time here and at Opinio Juris, I have a large interest in robotics, war, law and ethics.  And my most recent trip was to Stanford Law School, for a panel discussion of robotics, society and law — more on that in a separate post, but a great session on law and future technology.  This is a terrific book, and not just for people interested in robotics and technology.  It is manages to be both philosophically and technologically acute, and while not focused on law the way lawyers would focus, the questions raised clearly lead that direction.

Means to an End: US Interest in the International Criminal Court, Lee Feinstein and Tod Lindberg (Brookings Press 2009).  If you are around DC on Monday afternoon, there will be a screening of part of a new documentary on the ICC, The Reckoning, and then a panel discussion afterwards featuring Jane Stromseth, Gary Solis, John Bellinger, and me, moderated by Ruth Wedgwood.  Screening at 4:30–5:oo, panel discussion 5–6:00, at the Rome Auditorium, SAIS.  This short book is well worth reading; I comment on it briefly here at Opinio Juris and on the general question of US relations with the ICC at this point in time (about which I am much more dubious than I was a year ago when I was commenting on drafts of this book; at that point I thought there was much more room for US engagement than I think there is today, but see my discussion at OJ).

In any case, this is a wonderfully clear book, and a surprisingly plainly written one, given that it is a “centrists reaching across the partisan divide” work.  Lee and Tod are both old friends.  Lee was foreign policy director for the Clinton campaign, former Clinton administration DOS official, and currently US ambassador to Poland.  Tod is a Hoover fellow and editor of its marvelous journal Policy Review.

(Hint.  If you don’t read Policy Review, you should — eclectic, readable, intelligent, and intellectual in the sense of never falling into “trivially academic” or “trivially policy” or “trivially political.”  The intellectual political essay — under the hand of a skilled editor of mature judgment — is not dead.  If you’re a writer and have something more significant than a blog post to say, you might want to suggest it to Policy Review as a 4,000 essay.  This was the journal that launched, among other things, Robert Kagan’s Power and Weakness essay, for example — and which, if I may be so bold, was better as the Policy Review essay than as a book.)

Gods at War: Shotgun Takeovers, Government by Deal, and the Private Equity Implosion, Steven Davidoff (John Wiley 2009).  The NYT’s Dealbook columnist and corporate law professor Steve Davidoff puts a lot of stuff together in a terrific book.  It covers a lot of ground because its subject is dealmaking — as it cuts across private equity, hedge funds, sovereign wealth funds, the financial crisis, government bailouts ... what fascinates me about this book, what makes it very special, is that Davidoff keeps the focus on the law and legal battles that create the frame in which the dealmaking takes place.

As such, he pushes back against a sense among many commentators that the legal stuff is merely the lawyers coming to act as scribes for transactions, the essential economics of which is set elsewhere.  Davidoff reminds us that while that might be true in the middle of the bell curve, in ordinary times — when things go bad, for one side, both sides, all sides, then the words written down for all those contingencies turn out to matter, as words and sentences on paper.  Judges will have to interpret them.  The discussion of the evolution and interpretation of the “material adverse change” clause in the courts is worth the price of this book.  Likewise the “regulation by deal” discussion that I originally saw in Davidoff’s paper with David Zaring.  I think I will probably assign this book to my private equity course next term — there’s a lot of stuff that isn’t my focus, but this book can help my students understand some hugely important issues.

“Enemies need not be insane,” Christopher Caldwell’s Financial Times column of November 13, 2009 (sub req’d?).  Caldwell particularly focuses on:

Public doctrine insists on a distinction between Islam and Islamism. Islam is a religion, and Americans are punctilious about respecting the religions of others. Islamism is a violent political ideology, a “perversion” of Islam if you like, that has already taken thousands of US lives. Voters will punish pitilessly any politician who does not fight it with every tool at his disposal.

Hence the crisis. Maj Hasan’s case shows that authorities are incapable of making the very distinction between Islam and Islamism that they insist the public make. That Maj Hasan was a Muslim need not concern Americans. But he was an Islamist, too, if that word has any meaning. And those who had the authority to monitor him more closely were either unable or unwilling to.

This is as well put as you are likely to find.  But let me carry this one step further.  Read the columnists or listen to the talking heads on NPR and note the preferred narrative of the moment.  Why didn’t the military or the government or someone look any more closely at this and make some kind of judgment that this was dangerous?  Because of An Elite Narrative that said, and which had trickled down years before, permeating official responses as both Sense and Sensibility, or the lack thereof, to ask these kinds of questions is to be a racist.  Do it and it’s career suicide.

But the measure of elite narrative control is to play bait and switch, have your cake and eat it too:  the ideologies of the elites will prevent anyone in officialdom from asking or acting on anything that contravenes official multicultural sensitivities.  But when someone does shoot up the joint and kill a bunch of people (and they tend to  be places like Ft. Hood and somehow not places like Sidwell, Dalton, St Albans, Crossroads High, etc.), then exactly the same set of Elite Narrative Commentators will sententiously ask why government and officialdom ignored all the warning signs.  If you’re an NPR commentator or NYT editorial writer or WaPo opinion columnist, you get to have it both ways; if you’re the FBI or military official faced with all this stuff, you’re damned if you do and damned if you don’t.

Which is another way of saying that the currently preferred Elite Narrative of Ft. Hood is exquisitely tailored to insulate our Political and Media Elites from the blame that they are now scurrying to put upon officialdom.  It must be nice to live in a world without accountability.  In a Better World this kind of crime would result in also putting the occasional NYT op-ed writer on trial, pour encourger les autres,  for having made it impossible to stop the actual perpetrator.  In Our World, the ones who largely made the perpetrator unstoppable then proceed to conduct the public inquisition of Why He Was Not Stopped.

Actually, if you haven’t taken a look at Caldwell’s Reflections on the Revolution in Europe: Immigration, Islam, and the West (Doubleday 2009), you are missing the most important discussion I am aware of on these issues of global multiculturalism and the collapse of secular European public culture from the ideal of the liberal public-private divide into an ironically human rights-mediated ideal of global religious communalism (facilitating this changeover in the essential meaning of human rights from ‘liberalism’ to ‘multiculturalism’ will, in my view, turn out to be Human Rights Watch’s actual global legacy, by the way).

“Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004–2009,” Mary Ellen O’Connell (draft book chapter up on SSRN).  There is not very much that I agree with in this new paper by Mary Ellen O’Connell; my view is here.  However, it is the plainest statement to date on how to view Predator strikes in Pakistan, and by extension various other places, as violations of international law and criminal law and war crimes.  I admire it on the grounds of intellectual and moral honesty, although, I stress, it’s not so much a matter of disagreement as not sharing nearly any part of the intellectual world from which it comes.  But I think the CIA in particular ought to take account of it, because although not my world view or, presumably, its, the chapter does capture with remarkable clarity the world view of the community that would finally like to put the CIA on trial.  My view is that the “international law community” — what is sometimes called the “invisible college of international law” - already essentially agrees with its conclusions, even if  it will take more circuitous and less obvious legal routes to get there and avoid expressing itself so plainly and directly.

But the invisible college of international law won’t get to those conclusions, in my estimation ... until the day after the Obama administration leaves office, whereupon suddenly a whole series of legal conclusions will magically be pronounced “customary international law” dating back to Grotius or Vatel or someone, and a couple of sentences from some Nuremberg opinion will be deployed for the occasion, and various human rights groups will round up a bunch of countries on the Human Rights Council to lecture the US and as ever ignore Sudan, as they repose in human rights majesty listening to some special rapporteur drone on beneath the HRC chamber’s $23 million ceiling consisting, alas, of money partly diverted from Spain’s international development aid budget for, you know, really poor people, opining what a human rights abuser the US is and such war criminals its officials are, and the US, member of the HRC on account of its excess of zeal to be one of the multilateral good guys, mumbles apologies for existing, and finally the US, having joined the ICC as a little parting gift of the Obama administration, discovers that its officials in the CIA — but not, note, the DOS Legal Advisers office, which was so very, very careful not to say anything very specific about this — are subjected to legal investigations by the ICC prosecutor, and investigations by Spanish prosecutors eager to prove to their consciences that they have expunged Franco by embarking on human rights adventures abroad, although conspicuously not, in the real-politik of the real world, human rights adventures involving the New Hegemon, China, but instead focusing on the Country That Chose Decline ... and so one of the genuine advances in discrimination in targeting in self-defense, targeted killing from stand-off remote platforms, will be removed from the US arsenal in what we might call the on-going ‘war against war’ currently underway by the Forces of Good Who Tend to Ignorance and Disavowal of Responsibility for Unintended Consequences (e.g., new terrrorist attacks against soft targets in South Asia, but hey, they’re not Americans!!), and the legal process thereof buttressed by expressions of support and amicus briefs by former Obama lawyers suddenly discovering they had views on these topics after all, and they all somehow tended toward the liability of the US and its agents.

The arguments will not be as reaching, and certainly not as plain — or as honest, come to that — as O’Connell’s, but I think pretty much every conclusion she reaches will be reached by the ‘visible and noisy’ college of international law:

Abstract:

Within days of his inauguration as president, Barack Obama ordered the CIA to continue President Bush’s policy of attacks by unmanned aerial vehicles (UAVs) or drones in Western Pakistan. By October of 2009, the CIA had launched around 80 drone attacks. These attacks cannot be justified under international law for a number of reasons. First drones launch missiles or drop bombs, the kind of weapons that may only be used lawfully in an armed conflict. Until the spring of 2009, there was no armed conflict on the territory of Pakistan because there was no intense armed fighting between organized armed groups. International law does not recognize the right to kill without warning outside an actual armed conflict. Killing without warning is only tolerated during the hostilities of an armed conflict, and, then, only lawful combatants may lawfully carry out such killing. Members of the CIA are not lawful combatants and their participation in killing persons—even in an armed conflict—is a crime. Members of the United States armed forces could be lawful combatants in Pakistan if Pakistan expressly requested United States assistance in a civil war to end a challenge to Pakistan’s civilian government. No express request of this nature has been made. Even if it were made, drone attacks are the wrong tactic in the context of Western Pakistan. The CIA’s intention in using drones is to target and kill individual leaders of al-Qaeda or Taliban militant groups. Drones have rarely, if ever, killed just the intended target. By October 2009, the ratio has been about 20 leaders killed for 750‑1000 unintended victims. Drones are having a counter-productive impact in Pakistan’s attempt to repress militancy and violence. The use of the drone is, therefore, violating the war-fighting principles of distinction, necessity, proportionality and humanity.

Let me repeat one of those sentences in case the CIA counsel’s office was not paying attention:

Members of the CIA are not lawful combatants and their participation in killing persons—even in an armed conflict—is a crime.

(Update.)  I guess we might as well add Roger Cohen’s op-ed in the NYT, in which he takes up the subject of drone warfare and, seemingly having no idea what he actually thinks, decides to call for ... a public debate.  He has not thought very much or very long about drone warfare if he thought Jane Mayer’s recent New Yorker piece, as he says, “ground-breaking.”  Only if you became aware of Predators last week.

There are several excellent practicing lawyer books — Levin’s book, for example, but they are really only usable by lawyers with much experience and usually (eg Levin) partnership tax as a background, which is hardly any law students.  In addition, I simply can’t ask students to pay $300 or so dollars for a book aimed usually at a practicing lawyer’s office library.

In the past, I have used Josh Lerner’s business school casebook, which I like except for that fact that it is not a law book, and contains very little law.  So it is expensive but doesn’t get used for many of its key points in a law school class.  And the law part gets cobbled together out of unpublished stuff I have around.  I’d like to get away from this.

For some reason, I have this idea that someone finally came out with a law school textbook in this subject, but I can’t locate it online anywhere, so maybe I am mistaken.  If anyone has any idea, I would be very grateful — if only to stop looking frantically and just cobble stuff together yet again.

(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!)

Stanford Law School
5:30 p.m.-6:30 p.m. Reception (Student Lounge)
6:30 p.m. — 7:45 p.m. Panel (Room 190)

Once relegated to factories and fiction, robots are rapidly entering the mainstream. Advances in artificial intelligence translate into ever-broadening functionality and autonomy. Recent years have seen an explosion in the use of robotics in warfare, medicine, and exploration. Industry analysts and UN statistics predict equally significant growth in the market for personal or service robotics over the next few years. What unique legal challenges will the widespread availability of sophisticated robots pose? Three panelists with deep and varied expertise discuss the present, near future, and far future of robotics and the law.

Panelists:

• Kenneth Anderson, Professor of Law, American University; Research Fellow, Hoover Institution on War, Revolution and Peace at Stanford University
• Paul Saffo, Consulting Associate Professor, Stanford University; Visiting Scholar, Stanford Media X; Columnist, ABCNews.com
• F. Daniel Siciliano, Faculty Director, Arthur and Toni Rembe Rock Center for Corporate Governance; Senior Lecturer in Law and Associate Dean for Executive Education and Special Programs, Stanford Law School
• Moderator: M. Ryan Calo, Residential Fellow, Stanford Center for Internet and Society

Co-Sponsored by the Arthur and Toni Rembe Rock Center for Corporate Governance and the Stanford Program in Law Science and Technology’s Center for Computers and Law (CodeX).  Click here to register.

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.”

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.