The Volokh Conspiracy

Boalt Hall Associate Dean Goodwin H. Liu has been nominated to serve on the 9th Circuit Court of Appeals. Some readers and Senators may be interested in his viewpoint on Second Amendment and other constitutional issues related to firearms policy. So here’s an excerpt from his article Separation Anxiety: Congress, The Courts, And The Constitution, 91 Georgetown Law Journal 439 (Jan. 2003). Liu’s co-author on the article is Senator Hillary Rodham Clinton. The article is based on a 2002 speech that Senator Clinton presented at Georgetown, sponsored by the American Constitution Society. Senator Clinton and Professor Liu criticize recent Supreme Court decisions declaring two federal gun control laws unconstitutional:

Footnote 72 includes the following:

The Supreme Court has seen fit to rein in some of the most activist lower-court decisions. . . . But additional cases continue to test the limits. See, e.g., United States v. Emerson, 270 F.3d 203, 227–29 (5th Cir. 2001) (agreeing with district court that Second Amendment confers an individual right to bear arms, notwithstanding contrary indications in United States v. Miller, 307 U.S. 174, 178 (1939)).

Instapundit points us in the direction of Joseph Bottum’s First Things blog post yesterday; also Althouse’s comment:

[W]hile I was [at NYU Law School] I saw posters for a lecture this afternoon by Eugene Volokh on the structure of slippery-slope arguments.  ... the posters for Volokh’s talk read, as I remember: “Founder of The Volokh Conspiracy blog and Gary T. Schwartz Professor of Law at UCLA.”

I wonder how the Schwartz family feels about that. Indeed, I wonder how UCLA law school feels. For that matter, I wonder how I feel. Since when has even a blog as interesting as the The Volokh Conspiracy trumped, for a law-school audience, a chair at a major law school and all the speaker’s academic publications?  A fascinating change in the culture of things.

Well, heck (and  not speaking for Eugene), I feel pretty darn good as a coat-tails participant at VC!

Is this the ‘Australian Sound’? My class is covering information asymmetries as transaction costs affecting pure Coase Theorem analysis, and we will soon come to classic information asymmetries found in agent — principal relationships.  I am thinking of using this as a pedagogical tool.

Consider Eric Roberts’ soliloquy on agent-principal relations, and the many ironies involved.  (Midway through — the focus here is not on the political discussion at the beginning, but the Australian sound debate midway through.)  Good teaching tool?  (Also, the Coke jingle by Tim Finn is surely one of the best around, and I’m amazed that the real Coke corporation never figured out it had a winner.)

Congratulations to Larry Ribstein on his new book from OUP, The Rise of the Uncorporation.  I somehow got a comp copy in the mail, just finished reading it, and it is terrific.  A gracefully written essay on business law!(!!)  It manages to meld together law, history of business and legal forms in business, law and economics, and sociology into an exceptionally readable short book.  The discussion of the rise of the LLC is fascinating — I thought I knew all about it, as someone who teaches private equity and business associations, but boy, was I wrong.  The frame of social history in business form is a real contribution to a field that is oddly neglected by legal academics, the political and social theory of the corporation and the business assocation.

(My only complaint is that at $70 list, and $50 on Amazon, it is still a little pricey at least if, like me, you would want it for students and courses, like my private equity course, where it would be a fantastically useful and readable supplement.  I think OUP has missed on market pricing here.  I would love to require it as a secondary text in my private equity course, but at that price, I don’t think I can justify it.  Maybe when it’s out in paperback?  Or Kindle?)

Over at Opinio Juris, my co-blogger Kevin Jon Heller has a post on the German political theorist Carl Schmitt and the history behind his brush with a Nuremberg prosecution at the end of the Second World War.  It is drawn from research for Kevin’s book on the Nuremberg trials; given the interest that law professors and others have taken in Schmitt’s work over the years, I thought the VC audience would find it interesting.  Kevin has done very interesting research into this whole episode at Nuremberg:

I am particularly fascinated by how close Carl Schmitt, the political theorist who has influenced both the right and the left, came to being a defendant in one of the trials.  After Schmitt joined the Nazi Party in 1933, he had been appointed the head of the Union of National-Socialist Jurists and had written a number of pro-Nazi and anti-Semitic articles for the self-published German Jurists’ Newspaper.  Schmitt had a falling-out with the SS in 1937 and resigned his position as Reich Professional Group Leader, although he was able to keep his professorship at the University of Berlin because Goering protected him.

As I detail in the book, the OCC submitted three different trial programs to the US’s Occupational Military Government (OMGUS): on 14 March 1947, 20 May 1947, and 4 September 1947.  Schmittt was listed in the first program as a possible defendant in what the OCC called the “Propaganda and Education case.”  ...  At some point between 14 March and 20 May, when the OCC submitted its second trial program, Taylor’s staff decided not to prosecute Schmitt.  The second trial program no longer includes Schmitt as a possible defendant.

Kevin cites to an article in the social/critical theory journal Telos, of which I was long an editorial associate, along with the late great founding editor Paul Piccone, and an astonishingly long list of people you might not have expected to have done a stint with a New Left, then Post New Left, then sometimes left and sometimes right editorial board.  Fred Siegel, Seyla Benhabib, Jean Bethke Elshtain, Jean Cohen, Andrew Arato, David Pan, Joe McCahery Moishe Gonzales, it’s a really, really long list.  (Once in a while it has done important articles on critical jurisprudence — I am proud to say that as an editor in the 1980s, I commissioned a piece from Martha Minow, “Law Turning Outward,” that bears re-reading today, if only if were online!)  It is subscription only, dense, difficult, highly abstract and theoretical reading, within a sometimes alien critical theory tradition that is part homegrown and part European intellectual inheritance — and over the course of forty years, some of the best social theory in the world.

(One of these days I’ll talk about why social theory is both important and ripe for revival.  This, despite the general collapse of social theory into mere identity politics in the academy, thus driving people interested in rigorous thinking into more technically rigorous, but also more “surface” fields, such as economics, and the imitation of economics in other fields.  Maybe I’ll ask the current Telos editor, Russell Berman, if he’d like to take a crack at explaining why it matters.)

As to Schmitt, well, Telos was largely responsible for introducing him to the American academic community, translating and commenting on much of Schmitt’s output.  Schmitt continues to resonate today — the idea of emergency, after 9/11, for example, attracted much discussion.  In Europe, Schmitt overcame his past as a Nazi collaborator — rather, it seems never to have been much of an issue — and developed a very wide following across ideological boundaries, and considerable influence on the political theory of the Continent.  One reason I first read Schmitt was that it was clear to me I couldn’t understand Continental political theory, including Habermas and many others, without understanding Schmitt; he was a crucial part of the background discussion and intellectual assumptions over decades.

In the United States, the invocation of Schmitt always raises at least as a backdrop the question of Schmitt as a Nazi party member and full-on collaborator over important years.  My own view is that Schmitt was not a Nazi, far from it — in the ways in which Nazism was truly radical, Schmitt was a reactionary.  By all measures, a morally repellent character who saw where things were going in Germany and hopped aboard, and then saw where they were going and hopped off again.  But not a Nazi in his thinking or, really, sympathies despite, true, his long list of public intellectual credentials during historically crucial years.

The truth is, as an intellectual matter, I think Schmitt has long since run out of steam in terms of what he offers to American political and social theory.  This is possibly because I was intimately involved at Telos in the Schmitt revival from the beginning, felt like I absorbed what seemed important to me, and moved on by the 90s.  For example, the notion of emergency in Schmitt is both deeper but more alien to American political thought than, I suspect, many American theorists think — they really mean something that just is regular old consequentialism pushed hard, whereas for Schmitt, such notions are part of a far deeper and more committed system.  And although I once wrote a paper not long after 9/11 with a section carrying the very Schmittian title, “Criminals and Enemies,” what I meant by that had little to do with Schmitt and I was amazed at how quickly it was cast in Schmittian terms.  Far, far more important than Schmitt in contemporary American social theory — if there were such a thing outside the cul-de-sac of identity politics — is the revival of New Class theory in the American contempory context, and a theory of elites.

The Wall Street Journal has an entertaining article on the front page (Justin Lahart, Jan. 2, 2010), recounting tales of economists as hard bargainers and, well, cheapskates.  The article opens noting that the annual professional meetings occur the week after New Year, when hotel costs are generally low, and this year are taking place in Atlanta:

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)?

Continue reading ‘Economists as Cheapskates? Law Professors as Conference Seekers of Golf and Surfing?’ »

I am delighted to say that President Obama has supplied me with what to say to students coming to complain about receiving a B+ in my classes — a semi-regular occurrence, in these days of grade inflation.  (I have a sneaky feeling that my student evaluations are going to take a nosedive this term, having advised the students that I had allowed the curve to creep up too high in the last couple of years, and that I intended to “take the liquidity out of the Anderson grading supply.”  I explained this in great detail in the first week of class, when there was still time to drop, and even earlier in a pre-enrollment memo, but clearly not everyone believed it.)  However, if Professor Obama awards himself a B+ for his first year, how can my students not be pleased with one from Professor Anderson for their accomplishments this term?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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