The Volokh Conspiracy

Over at Inside the Law School Scam, Paul Campos reveals that he worked extensively with David Segal in helping Segal with his article on law professors and legal scholarship, and in particular with Segal’s estimate of the price students pay for legal scholarship. According to Campos, the basic methodology is to assume that 40% of law school operating costs pay the salaries of tenured or tenure-track professors, and that law professors spend 40% of their time writing articles. Multiplying the two suggests that 16% of law school operating costs pay for law review articles, which Segal estimates collectively at about $575 million.

I am no labor economist, and my comment is probably amateurish, but this strikes me as a puzzling way to calculate the costs of legal scholarship. It assumes that professors spend a fixed amount of time working and a fixed percentage of time writing articles. But that’s not the case, as professors spend a wildly varying amount of time working and a wildly varying amount of time writing. Some professors work very hard; some don’t. As a result, I would think that a better way to measure the costs of legal scholarship would be to compare the salaries of the professors who are active scholars with the salaries of the professors who are inactive scholars. (To determine the costs of X, compare the costs with X to the costs without X.) Consider an example. At a given school, it may be that a professor who spends 25 hours a week writing articles has earned merit increases in pay over time, and as a result is paid $40,000 more per year than a professor who doesn’t write articles at all. If so, that would suggest the costs of legal scholarship are somewhere in the ballpark of $30 an hour. That is, $40,000 additional pay for 1,300 hours of additional work.

This calculation has lots of problems, too, I realize. For example, it assumes that salary competition for active scholars has no effect on the salaries of inactive scholars. But at the very least I would think it’s a better gauge of the costs of legal scholarship than the methodology used by Campos that was followed in the Times article. Or so it seems to me, but then I’m about as far a way from my area of academic expertise as I can get. Comments are open, with corrections and criticisms particularly welcome.

UPDATE: Paul Campos responds, via e-mail: “You’ve misunderstood the calculation regarding the subsidizing of scholarship via tuition, probably because I stated it unclearly. While I estimate 16% of law school operating costs go toward subsidizing scholarship, the $575 million number isn’t 16% of operating costs – it’s 16% of collected tuition.”

Today’s NYT has a lengthy front-page article on legal education suggesting that a major problem with legal education is the failure to teach law students how to practice law. There is something to this complaint — some schools and some legal academics do relatively little to prepare their students for practice and there is much relatively worthless legal scholarship — but the article overstates the case, fails to identify workable alternatives, and makes various errors about legal education and scholarship along the way. For instance, the article identifies a philosophy paper, published in a philosophy journal, as an example of how legal scholarship is divorced from legal practice. The article simultaneously harps on the high cost of legal education and suggests more clinical education is a good way to help prepare law students to practice law. Yet the article makes no mention of the fact that clinical education is more expensive than traditional doctrine-oriented classes.

For more on the article, see these comments from Matt Bodie, Brian Leiter, Jason Mazzone, and Larry Ribstein. As Ribstein notes, if one really wants to understand what’s going in on legal education, the good and the bad, one’s better off reading legal bloggers than the NYT.

UPDATE: Leiter has a fuller response to the article here, and Orin comments above.

Co-blogger Orin Kerr links to Richard Fallon’s interesting article on the ethics of law professor amicus briefs.

Fallon argues that lawprofs are far too quick to sign amicus briefs that fit their ideological proclivities even if they aren’t really expert in the underlying legal issues and sometimes even if they don’t agree with the particular legal argument advanced by the brief. He further contends that legal scholars should only agree to sign briefs if they 1) have personal knowledge of the major factual claims and legal authorities the brief relies on, 2) agree with the brief’s reasoning (not just its bottom-line conclusions), and 3) the brief makes at least some reasonable effort to confront key opposing arguments and evidence.

I certainly agree that Fallon has identified a real problem. For what it’s worth, I have long refused to sign amicus briefs except in cases where I am an expert on the relevant subject and I endorse the brief’s reasoning as well as its conclusion. This is less stringent than Fallon’s standard of personal familiarity with all the major authorities relied on by the brief. But it does have real bite. For example, I have refused to sign several amicus briefs in Second Amendment cases because, despite my sympathy for the individual rights theory of the Amendment, I feel I’m not expert enough on the subject to opine on it to a court. In another major Supreme Court case that did touch on areas where I am an expert, I refused to sign a brief because, even though I agree with its bottom-line conclusion, one of its principal arguments relied on a theory of the Spending Clause that I had criticized in my scholarship.

Are all legal scholars ethically obliged to follow something like my rules or Fallon’s more restrictive ones? I am not sure that either of us has hit upon exactly the right approach. But I do think that we should apply tighter standards to our participation in these kinds of briefs than seems to be the norm today. Otherwise, as Fallon suggests, we end up using the intellectual authority we have based on scholarship within our fields of expertise to influence courts on issues about which we actually know very little.

An alternative norm is that a law professor might sign an amicus brief on an issue outside his expertise in such a way as to indicate that he’s doing so in his capacity as an ordinary citizen rather than as an academic expert. This approach is, I think, entirely ethical. Experts are not the only ones entitled to express opinions on legal issues, including in amicus briefs. But it does, of course, tend to defeat the main reason why people solicit law professors’ signatures on amicus briefs in the first place. A brief joined by “Professor Joe Blow, constitutional law scholar,” looks a lot more impressive than one signed by “Joe Blow, acting in his capacity as an ordinary citizen.”

Joni Hersch and Kip Viscusi have posted an interesting paper counting the number of law professors at the “top” schools that have Ph.D. degrees. Of course, “top” is in the eye of the beholder: Hersch and Viscusi divide schools into the “Top 13″ and then the “Top 26.” A few of the findings:

• At the “Top 13″ schools, 32.3% of faculty members have Ph.D.s. The most prevalent subject area for the Ph.D. was economics, with 9.2% of faculty members having an economics Ph.D. (see page 23)
• At the next tier of schools, those ranked 14 to 26, the proportion of Ph.Ds dropped: 20.4% have a Ph.D. of some kind, with 4.1% having a Ph.D. in economics (see page 23)
• Of the faculty at the Top 26 schools taken together, 979 have only a J.D. degree; 294 have a J.D. and a Ph.D; and 65 have only a Ph.D. and no J.D. (see page 21)

Thanks to Al Brophy at the Faculty Lounge for the link.

CQ‘s Kenneth Jost assesses “Chief Justice Roberts’ Ill-Informed Attack on Legal Scholarship” on his blog. As had been widely reported and discussed, Chief Justice Roberts was dismissive of the value of much legal scholarship at the Fourth Circuit judicial conference in June.

“Pick up a copy of any law review that you see,” Roberts said, “and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”

As I told Jost for his post, I think there is something to Roberts’ critique. Much legal scholarship has little relevance to the bar or the bench. At the same time, it would be a mistake to believe that practical utility is the only measure of legal scholarship. Empirical analyses of judicial behavior may not help judges resolve cases, but they can certainly aide in our understanding of the legal system. Much scholarship also has value for its own sake. [UPDATE: Even if some scholarship has intrinsic value, that does not necessarily mean it should be financed by law student tuition.]

Somewhat ironically, as Jost notes, this past term featured several opinions that relied heavily upon legal scholarship for their analysis, including Wal-Mart v. Dukes which extensively cited the work of the late Richard Nagareda.

Somewhat coincidentally, two legal scholars have a draft empirical study of the Supreme Court’s use of legal scholarship over the past 61 years. It finds that the Supreme Court actually cites legal scholarship quite frequently — in approximately one third of its cases. As Jost notes, eight of the current Justices cited legal scholarship at least once in their opinions this past term. The one exception: Chief Justice Roberts.

My Washington College of Law colleague Robert Tsai points me to an interesting Huffington Post article  by Anis Shivani on new directions for university presses.  I have a somewhat more critical take on this, in the sense of an interest in the economic and business models driving the presses as they move in different directions.

For example, I wonder how falling costs of producing books and different and cheaper distribution models via Amazon interacts with a relative decline, at least among senior law professors, in the prestige of law review articles in favor of books.  I wonder about shifts in the hiring, promotion, tenure, and lateral process and ways in which that drives a cycle of academic production – at least among law professors – of crank out articles, repackage as book, start cycle again – but without it being clear to me, at least, that there is great value added in putting the articles between hard or soft covers.  We tell ourselves that we are pulling together a handful of articles into a unified book-y whole, but, well, I wonder how much it is simply driven by a combined shift in the prestige markers within our academic world and shifts downward in the cost of production, along with dissatisfaction with the student law review publishing model.

Is that a bad thing?  The sometimes assumed frivolity and waste of publishing in humanities, social science, and law – the purely critical story is not all there is to it, by any means.  I, for one, do look forward to a revival of the humanities as a source of meaning.  The availability of an increasing number of scholarly books at a much cheaper price than, well, Cambridge UP’s sticker-shocker numbers is a terrific thing.  It takes into account lower productions costs, the idea that university libraries are not the only places to find these books, and a host of other things.  That many of these books are deliberately aimed at a wider audience than the university library is a feature of many of these new business models; that will inevitably mean more popular titles.  It will inevitably mean a certain amount of wishful marketing … frankly unreadable academic tomes with exciting titles, cool covers, and misleading blurbs.  But I’m not convinced at all that these will crowd out traditional academic monographs.

Those are mostly questions I have within the world of academic law publishing, however, while Shivani’s post is on university presses more broadly.  It is worth reading in part just to get a sense of the ways in which presses are extending themselves, and also because it might give some readers a sense of where to turn to for particular varieties of books, and for authors among us to get a sense of what presses might be suitable for what ventures.

Speaking of blurbs, I’m somewhat surprised that as a marketing strategy, academic writers do not take a page from the marketing of that great work of 1990s fiction, A.A. Gils Sap Rising. Reviews were either wildly positive or wildly negative … so the publisher put them all on the back, including in alternation:

• “He writes so brilliantly.”
• “Extremely badly written, hideously and unamusingly obscene.”
• “A clever, sexy story.”
• “Frightful pile of garbage.”

And then it ended up with the laconic comment of the Times Literary Supplement (a venue for which I occasionally write, and for which this kind of plain, unadorned, Eric-Blair-would-approve-of-it prose makes me proud to be a TLS contributor):

• “This is a dirty book.”

In academic writing, however, one is not looking for this exactly, it is slightly different.  What one wants in academia is not a collection of wildly for and wildly against.  Because academic writers are generally trapped – self-stranded, to be precise – in cul-de-sacs of like-minded academics, no one is much impressed by the log-rolling blurbs of one’s confreres.  But for a converse (or do I mean ‘obverse’?) reason, no one will be much impressed by the attacks of one’s enemies, either.  What one wants is what so much of contemporary academia is out to deny – except when it comes to what people say about one’s own academic work – viz., that I utterly disagree with it and indeed at some profound level think it deeply mistaken and even wrong, but alas I cannot deny the sheer intellectual power, unaparalleled learning and erudition, and brilliance heft of this work.

Endorsement from outside one’s epistemic community, in other words, on the basis of an ideal of neutral, objective quality that we long for, when it comes to our own stuff, but within academia don’t really accept.  We deny its validity – but then want its validation.

One of these days I will take the plunge and compose a “greatest influences” books list, as some of the other Conspirators have done.  I have hesitated in part because my list would not tend to contain works of monumental ideas, but instead plays, works of fiction, poetry, and fragments that are not always  blockbusters in the history of ideas, as well major works of the left.

Part of this is generational.  I intellectually came of age in a period in which both Marx and Freud were still considered the giants, and in which the humanities had not yet collapsed into its current state of identity politics and post-modernist irrelevance; literature was still believed to shed light on something called the human condition – though these were by then on the way out.  Rational choice economics had not yet won over the academy, partly through its own intellectual strengths but also from being the ‘last man standing’ as the humanities sawed off the intellectual branch, as it were, it was sitting on.  I came from the peculiar position of what Larry Solum once called my “left Burkeanism” with a good bit of American libertarianism thrown in.

But it was not until quite recently that I read a long list of thinkers on the libertarian or conservative end of things – part of this was that I studied philosophy, not economics, and many of the leading thinkers pointed to by other Conspirators such as Hayek or Friedman did not figure into my intellectual education.  I am the classic case of one of the tangential but not unshrewd definitions sometimes given of a neoconservative – a leftwinger who has moved right.  For many of those “neoconservatives,”  including me, the core intellectual influences from early on come, not from the right or even centrist liberalism, but from the intellectual left.  Marx, the left Hegel, a long list of left European intellectuals such as Gramsci, etc., etc.  I am intellectually as much a product of the melding of a very traditional education in Anglo-American analytic philosophy of a certain period – Wittgenstein, Philippa Foot, Rogers Albritton – and the European critical theory and intellectual history of the great critical theory journal Telos.

My intellectual influences definitely included, however, the great figures of the British traditions in philosophy and political theory, Locke, Hume, Bentham, Mill, etc., and, probably at the top of my list, Hobbes.  Very much in an analytic philosophy tradition rather than a historical one; seeing these ancient political essays as political theory to be treated a-historically rather than as intellectual history.  I studied Locke’s Second Treatise as a pure system of intellectual propositions, and only much later gained an appreciation of the way in which Locke was deeply engaged in the political arguments of his day.  Leviathan was studied – I’m glancing at my first Leviathan text and my undergraduate marginalia (ouch, ouch ouch) – purely as a system of rational propositions, with no attention whatsoever to the religious wars of the day.

So, given the importance of Hobbes to my own intellectual formations, I welcome the notice and review in yesterday’s Wall Street Journal of a new Yale critical edition of the Leviathan, edited by Ian Shapiro, and aimed at a general rather than academically specialized audience.  It has four interpretive essays, all of which receive good notices from the WSJ reviewer, the historian and Hobbes scholar Jeffrey Collins.  The WSJ review essay is a fine piece of writing on its own, and raises the question, not just of Hobbes’ enduring importance, but why he has particularly been of interest in the past few years.  Collins puts the issue this way:

The question is why Hobbes’s account has enjoyed such popularity in recent decades. The likes of John Locke and James Madison long ago demonstrated the limits of Hobbes’s raw statism. But many thinkers and political actors, lately, seem to prefer Hobbes’s vision of society to theirs. Why should this be so?

One might point to several reasons. Hobbes’s snide irreligion, once the main complaint against him, may now commend him to those who perpetually fear the supposed return of theocracy. His tendency to portray humans as appetitive beasts flatters our present eagerness to explain every aspect of human conduct in biological terms. Hobbes was also acutely suspicious of democracy. He considered it a breeder of faction. When pundits such as Thomas Friedman decry “broken government” and fawn over China’s “enlightened” response to global warming, one wonders if the Hobbesian within the liberal breast is stirring.

Continue reading ‘Leviathan’ »

The American Association of Law Schools section on financial regulation is seeking paper proposals for the January meeting on all topics of financial regulation and regulatory reform.  The deadline for proposal submissions is August 1, fast approaching; I have posted details below the fold, and you can also contact my colleague Anna Gelpern with any questions … agelpern at wcl dot american dot edu.  I encourage to take advantage of this opportunity for exploring these issues; as I suggested in a recent talk to a student group that was later published as an informal essay, lawyers and law professors do have certain comparative advantages in relation to economists and others in addressing financial regulatory reform.   Continue reading ‘Financial Regulation Reform – AALS Call for Papers’ »

Five new podcasts from the Independence Institute’s iVoices.org:

1. The University of Montana’s Rob Natelson on the Executive Vesting Clause.  Natelson argues that the first clause of Article II grants the President no additional powers–contrary to the theory that the clause gives the President almost all the powers formerly possessed by English Kings. 36 minutes.

2. The Privileges or Immunities Clause and what it means for the Second Amendment. The Cato Institute’s Ilya Shapiro discusses his new law review article. 29 minutes. (The final version of the Shapiro-Blackman article, “Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States,” was just uploaded to SSRN today.)

3. What Miller Meant. Oklahoma City University’s Michael O’Shea explains  the history and multiple meanings of United States v. Miller. 65 minutes. 

4. The International Hunter Education Association. IHEA’s Wayne East describes the IHEA’s good works in teaching safety and responsibility. And how you can take most of a hunter safety course on-line. 26 minutes.  

5. Weld County, Colorado, Sheriff John Cooke provides law enforcement perspective on three bills in the Colorado legislature: removing the Governor’s power to prohibit gun sales, transfers, or transportation during an emergency; a declaration that the federal government cannot apply federal gun control laws to guns manufactured in Colorado and which do not leave the state of Colorado (background checks on sales would still be required pursuant to Colorado law); and a bill to state that business owners on their own property have the same self-defense rights as do persons in their own homes. All three bills were supported by the County Sheriffs of Colorado. The first two bills were killed on party-line votes in a state Senate committee; the last bill is awaiting a committee vote in the House.

The first four are interviews I conducted last week. The last interview is conducted by Independence Institute’s Amy Oliver.

Yesterday, I was editing the Introduction to my “Rehabilitating Lochner” book, and I needed a word to fill in the following sentence: “Lochner itself is now considered the ___ of the liberty of contract cases, though the opinion has not always attracted such disproportionate attention.” After some thought, I came up with the word “apotheosis.” I thought it looked good, and, given that this was an early sentence in the book, made me sound erudite.

But then I remembered that I’m trying to write for the readers’ benefit, not to sound smart or well-educated. (William F. Buckley, who was an excellent writer but often used obscure words, was trying to sound smart, in part to counter the image that conservatives are ignorant.) And I noted that even though I have a pretty good vocabulary, I had to look up apotheosis to make sure I was using it correctly, which likely meant that many of my readers would be unsure of the word’s meaning. So I deleted apotheosis, and replaced it with “epitome,” a much more common word. The sentence may sound less erudite, but it’s much more comprehensible.

UPDATE: On further reflection, I changed the sentence to “Lochner has come to exemplify the liberty of contract cases, though the opinion has not always attracted such disproportionate attention.”

A while back, a prominent law review asked me to review a book on a topic of interest to me.  I readily agreed, on condition that the review be relatively short.  When it came time to sit down and read the book, however, I found it extremely difficult to understand; the book was loaded with unnecessary jargon, long, run-on sentences, and big, obscure words where short, simple ones would do fine.  I found myself sometimes reading a sentence five times to try to figure out what the author was trying to say.

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.

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.

I recently finished Brian Tamanaha’s new book, Beyond the Formalist-Realist Divide: The Role of Politics in Judging. I thought it was excellent: well-written, provocative, and engaging. If you’re interested in jurisprudence, this book is a must-read.

The gist of the argument is that the common story about the legal realists and the legal formalists is just bunk. For those not familiar with this area, the common story is that until the 20th Century, lots of lawyers and legal theorists were legal formalists who naively thought law was entirely mechanical. Then, in the 20th century, the legal realists came around and revealed for the first time that law was human and often indeterminate. Tamanaha shows that the realists’ claims about what the formalists thought were totally wrong, and that there wasn’t any real difference between how so-called realists and so-called formalists thought about the law. Rather, he suggests, progressive legal reformers in the 1930s invented the bogeyman of formalism to try to discredit the status quo and facilitate legal reforms of the day.

I particularly liked the book because it takes on a narrow but important point, sticks to that point, and is relentless and unyielding within it. Tamanaha is trying to debunk one specific point, and he doesn’t let himself get distracted by related topics or the need to offer his own general theory. I tend to think that approach has the most impact in legal debates: Following this book, it will be hard to make the usual claims about the realists and the formalists without dealing with Tamanaha’s counterstory.

(Updated below …  Give me global oligopoly or give me climate death!)

I

Post-Copenhagen.  At bottom, the question is legitimacy.  The global New Class met in Copenhagen, convinced, as ever, that it had legitimacy to act as it proposed to act, with the UN as its vehicle, because legitimacy was conferred by “expertise.”  The UN bureaucracy, its permanent culture of functionaries, endorsed the global New Class elites and their claim of legitimacy through expertise, because, after all, the experts were using the UN as the vehicle and thereby conferring upon it governance legitimacy – if you are Ban Ki Moon, what’s not to like about that?  Together, they thought they had found the formula to buy off the poor world through the climate fund.  They also thought they had found a formula that would bring the BRICs on board, by endorsing the Kyoto formula of encouraging industry to move from the rich world to China and India.  Obama and the Democrats would deliver the United States.

In the event, it turned out that the BRICS and the developing world decided to exercise their particular forms of legitimacy – the legitimacy of the sovereign equality of member states at the UN – in order to demand more for relaxing their “hold-up.”  Global New Class legitimacy at the UN encountered  that other form of global governance legitimacy, that of the mass of member states.  Whose legitimacy matters and for what?  And what does it mean to say that a climate change deal requires, in Secretary General Ban’s words, an “equitable global governance structure” to administer it – especially given the many, many, many, many, many, many, many, many things that are apparently to fall under its tent, from global free trade to ice water in our glasses?  What is this global governance, anyway?  What makes it “equitable” and supposedly, therefore, legitimate?  Is it legitimate to do a deal of global proportions, on climate change or anything else, and not involve everyone?  Is “expertise” enough grounds for global legitimacy, the legitimacy required to remake relations from the top to the bottom, trade, jobs, lifestyles, you name it?

II

If your issue is simply the substance of climate change policy, and not UN politics, then you perhaps don’t much care about these abstract issues of legitimacy, global governance, and the UN.  Until the end of Copenhagen, however, because it turns out that (given the breathtaking scope of things to be governed under the rubric of climate change, starting, really, with the whole global economy, as it affects ordinary people) that the meanings of global governance, legitimacy, and the UN matter after all.

What we call “legitimacy” and what Ban called “equitable,” after all, translated in the event, among other things, into a hold-up premium for the G-77 and a corresponding unwillingness of the G-rest to pay up past a certain point.  Global governance, but “legitimate global governance,” meaning, it appears from Copenhagen, not just solemn obeisance to experts, but solemn obeisance to the ‘sovereign equality of states’ – which is to say, the UN and, in particular, the countries of the General Assembly.

For some of Copenhagen’s participants who believe(d) both that

• climate change is the existential problem of now and the future, but who are (were) also
• committed to global governance as an activity of the world together, and so committed to the legitimacy that comes with the UN over any nation-state that might act unilaterally, or little conspiracies of the great powers foisting off their oligopolistic deals on the rest of the world

… for them, legitimacy, particularly via the sovereign equality of states, is a problem.   Continue reading ‘Copenhagen as UN Politics, Not Climate Change Substance’ »

Back in 2005 and 2006, a lot of law-professor bloggers wondered whether blog posts could and would serve as ways to advance scholarly ideas about law. At the time, I was very skeptical:

Can blogs help advance legal scholarship? I think the answer is that they can, but that the format isn’t well-suited for the job. The key problem is the tyranny of RCO, reverse chronological order. RCO means that blog visitors see the most recently posted material at the top of the page. A visitor may see one or two posts on the screen, but needs to scroll down to see earlier posts. This isn’t the only way to visit a blog. Readers can follow direct links to earlier materials, and can search through archives (or query search engines) for particular materials. But this is relatively rare. For the most part, blogs direct readers to the most recent post first.

RCO helps ensure that the difference between blog posts and law review articles is something like the difference between short term and long term memory. Blog posts tend to be about what happened today, yesterday, maybe last week. They are quick reactions to current events and current issues, and for the most part are forgotten a few days after they have been posted. In a sense, blog posts end up as an online equivalent to faculty lounge conversation: They tend to be quick thoughts, comments, and perspective that offer an interesting tidbit about a broader question. Posts might plan the seed of a future article, or stimulate readers to think of old questions in new ways. But the time horizon is short. Blog posts may support and influence traditional scholarship, just as short term memory can work its way into long term memory. But the two are usually quite distinct.

Fast forward to the present, and I now think my old self was wrong. Or at least a bit off. I now think blogging actually does provide an effective way to present new scholarly ideas in many cases. In this post, I want to explain why my view has changed.

The main reason my view has changed is that I think the legal academic culture has changed. In the past five years, legal blogs have become an acknowledged and accepted part of the world of legal scholarship. Exactly why is open to debate. It might be because more law professors are blogging. It might be because our experience has been that what profs say on their blogs is usually the same as what they say in their articles. Perhaps the new online journal supplements have blurred the traditional paper-vs-on-line distinction. Whatever the reason, there seems to be more of a convergence between scholarly blogging and “traditional” law review articles today than existed 4 or 5 years ago. That convergence encourages more scholarly blogging and recognizes its value.

Citations in the Westlaw JLR database are an imperfect metric, but they tend to confirm the change. Consider the number of times that the phrase “Volokh Conspiracy” and/or “volokh.com” appeared in the database. (Usually, although not always, these phrases reflect a citation to a particular post appearing in a law journal.) In 2005, the phrases appeared 24 times in the JLR database. The year 2009 isn’t over yet, with roughly 20-30% of issues schedule for a 2009 publication not yet out and on Westlaw. Still, the phrases have appeared 108 times so far in the JLR database. That’s a lot of cites. Out of curiosity, I did a quick check of my own citations — vain, sure, but at least to an interesting end — and I would estimate that about 25% of the citations to my own work in the last year have been to my blog posts rather than traditional journal articles.

In short, I think we’re seeing a shift in how law professors and legal journal editors view blogs. The old lines have blurred. Blogs have become a significant part of the scholarly conversation. I didn’t expect this to happen, at least so soon. And I don’t know whether the trend will continue. But I think the trend is a real one.

Advances in the technology widely used by legal bloggers have facilitated the changes. My skeptical view from 2005-06 (see excerpt above) was based on the blogging technology generally in use at the time. Back in 2005, comment threads were still pretty new. We didn’t start experimenting with them here until late 2004. At the time, it was also very hard to link posts or hide the bulk of a long comment behind a hyperlink. Also, my recollection is that Google did not index blogs in the early days of legal blogging. Further, it was odd at the time, if not unheard of, to use google or any other search engine to do legal research.

Over time, all of that has changed. Searching the web for legal scholarship has become common. Blogs are indexed and available via Google minutes after they are posted. The culture of comment threads has developed more, encouraging more feedback between authors and readers. It has become easier to link posts and hide long text. All of these changes have helped create an environment much more conducive to scholarly blogging than existed in 2005-06.

Erik S. Jaffe has written a very interesting brief for the CalGuns Foundation. In short, the argument is: “Charles Fairman’s and Raoul Berger’s Work on Fourteenth Amendment Incorporation of the Bill of Rights Is Deeply Flawed, Inaccurate, and Should Not Be Relied Upon by this Court.”

To make a long story short, during the latter half of the 20th century, Fairman and Berger were the pre-eminent legal scholars opposed to incorporation of the Bill of Rights. Fairman was a close ally of Justice Felix Frankfurter. In the 1949 case Adamson v. California, Justice Black (with support from two other Justices) wrote an dissent arguing for total incorporation of the Bill of Rights; the dissent included a lengthy appendix with selections from the congressional ratification debates on the Amendment.

Fairman and Berger both looked at original-period sources, and argued for merely selective incorporation (Fairman) or no incorporation (Berger). Their views were later challenged by, inter alia, Michael Kent Curtis, Richard Aynes, and Akhil Amar. The Curtis v. Berger pro/con articles in the law reviews are some of the harshest exchanges I’ve ever read between two legal scholars. The brief’s Table of Authorities provides a list of key law review articles, if you want to study the history of the debate.

The brief’s main argument, which I find persuasive, is that Fairman and Berger really did grossly misread Jonathan Bingham and the early history of the Fourteenth Amendment. Accordingly, the Court in McDonald v. Chicago should not be guided by their views.

And for those VC readers who have been playing Aldridge’s Bingham for the last seven hours, you better tap another keg.

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’ »

In an interesting post on the goals of legal scholarship, Marc DeGirolami writes:

[It] doesn’t particularly matter to me who is or is not interested in my ideas. It probably is true that I hope vaguely that someone, somewhere, now or in the future, will be interested in them. If no one ever thought them at all interesting, I would likely find that regrettable. But I do not write with the purpose to address a particular audience. Even when something I write addresses a particular scholar’s claims, I do not take that scholar, or his epigones, to be my audience. In fact, I usually give no thought at all to whom I am writing “for.”

When I write, I don’t really care who cares, or why they care, or whether someone will care in the future for reasons I cannot guess. I am not writing with the practical aim of influence in mind, or with an ulterior motive, or with the hope that I will make it easier, or harder, for pastry chefs to frost cakes with greater velocity or skill. This is different, I think, than saying that one ought not care if one’s ideas are put to deeply harmful use, or that one ought to be utterly indifferent to the consequences of one’s ideas. Rather, it is to say that one should not have as one’s conscious writing object the excitement of anyone’s cares.

I look at this differently. I think that inherent in legal writing is writing for an audience. Legal writing is a type of argument, and arguments are made with audiences in mind. Of course, that doesn’t mean you know exactly who the audience is, or that you write with a specific reform in mind. And it doesn’t mean that you express an idea you don’t actually believe in just to please or influence the audience. But I think it does mean that a sense of the audience is inherent in the enterprise.

Imagine yourself as an author sitting down to start a new law review article. At the most basic level, you need to choose a language. You need to pick a level of complication in your language. You need to know how much to explain concepts, and how much to take things for granted. You need to have a sense of what claims readers will find obvious, what claims readers will find arguable, and what claims readers will find simply batty. You need to have a sense of how the reader is likely reacting to your argument as the reader delves into it, so you can take the reader on a clear path through the argument.

All of these steps require at least a vague sense of who the readers are. It requires the author to have a sense of how likely readers will experience reading the article so the author can try to help them understand the claim and persuade them that it is true. The sense of readers can be very general, of course. Perhaps it is just “law school hiring committees,” or “other lat-crit professors,” or “the kind of people who read law review articles about insurance contracts.” And perhaps, for some writers, the audience is really just themselves. They want to read over their work when it’s done and feel that the article genuinely reflects their own experience with the argument. But I think that’s an audience, too, albeit a small one.

Anyway, these are big issues, and no doubt others have expressed these views far better than I have. But I did want to briefly post about the issue — written, of course, with the readership of the Volokh Conspiracy in mind.