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.”

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.

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.”

• 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.

“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.

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.

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.

Certainly there is something to this, and indeed a great deal to it.  Left libertinism of the 60s generation has given way to left authoritarianism, and in support of that, one can find support in readings of Hobbes.  To which, however, I have two critiques.  The first is not that which is offered here as the importance of Leviathan – the argument for authoritarianism.  What I take away as most important from Hobbes for the present situation is something quite different (in my own simplification of the elegant interpretation of Leviathan offered by the Hobbes scholar Sharon Lloyd in her book Ideals as Interests in Hobbes’ Leviathan).  It is that for all Hobbes’ rationalism to the end of absolute authority, he recognized that there were persons – the zealots, the religious fanatics – who would not and could not be reached by reason or fear.

To which the solution for the sake of the commonwealth was … seek to convert them, and in particular show them that they had no reason to be in fear of Hell, and failing that, kill them and raise their children differently.  I exaggerate a bit for effect, but perhaps not, my point is not to read Hobbes as authority for Thucydidean slaughter.  Nor is my point even that Hobbes’ embraces the necessitarian logic of Thucydides and, in Walzer’s phrase, makes it his own by claiming the nature of necessity as the necessity of nature.  My point is that even those of us who think that there are many considerations beyond pure necessity had better be aware of what it prescribes – otherwise we risk living in an unreal and unnatural world; hopes that end badly.

Not everyone in our world is reasonable, there are people and causes and ideologies, including Islamist religionists, who are beyond the appeal of rational choice.  That’s what Hobbes bids us keep in our minds.  It seems to me this is the crucial lesson from Hobbes’ unvarnished rationalism about power and reason, for today’s world.  Where rationality does not hold, then proceeding by methods premised upon rational choice, and the smooth slide and play of marginal incentives and disincentives, does not work.  There is nothing more pitiful than the smooth negotiator who believes that everything can always be negotiated, and few things more costly to sovereign political community than a mistake as to whether the thing at issue is a matter of negotiation or instead touches something deeper, a non-negotiable form of life.  We, after all, are supposed to have some number of beyond-rational-choice non-negotiables, fundamental theorems of human rights; fanatics and zealots have theirs, so too.  The question is what to do and how to do it regarding fanatics and zealots whose non-negotiables are incompatible with our non-negotiables.  But in order to understand the logic of that choice and its relationship to rational choice, Hobbes lays down the fundamental lesson that not even his system of fearsome rationality can manage to reason with everyone.

Second, however, I do not think that today’s liberal authoritarianism is typically rooted in a truly Hobbesian logic.  The Hobbesian logic is grounded upon the rational fears that each must have of every other in the state of nature – a particular form of the tragedy of the commons, in which the common resource to be exploited in the state of nature is each upon others.  The Hobbesian conclusion is, of course, that only an absolute master can provide the public good of personal security.  I don’t believe that captures precisely the problem that progressives have today with democratic process.  Their distaste for it arises, much more profoundly, in my view, from a sense that social and political processes have lost their ability to cohere and make policy – too many people in a democratic system that has been de-natured into mere interest group politics with no greater sense of common cohesion have been granted a veto.

The irony, to be sure, is that this loss of governing coherence is in large part a creation of progressivism itself – the effects of multiculturalism, particularly, in reducing the extra-rational, extra-interest sense of communal ideals, a demos creating a polis, rather than hoping that pure Hobbesian rationality will create a polis of rationality, without any shared sense of community, alone.  The progressive political factions that, in power, bemoan their inability to govern – and leaving aside that perhaps a large part of the inability to govern lies in having handed so much of the task over to professors and academics; I at least have a clear sense of what I would lack as an executive – in large part created these conditions.  They did so by de-mythologizing, which is to say de-legitimating, the communal political community, the part that allowed the interest groups to flourish by serving as an extra-rational, extra-interest guarantor of the political community.

In this world, we are all just interest groups now, thanks; that is the sum total of democracy.  But also by mythologizing communal, identity politics constituencies within the political community and moreover in its place. Progressive elites then profess surprise when, at least on the progressive end of the spectrum, the notion of political community has no meaning because it has no boundaries to define it.  There are still spoils to be divided, but no political community actually to govern.  This creates a problem, however, for the many things for which the current rulers actually do want to govern a political community and set the terms for the demos, having, so to speak, sawn off the branch on which it was sitting.

This is pretty much what Thomas Friedman’s lamentations to be China amount to – the inability of the current masters to force through their curriculum.  He laments the inability of the political class to cohere the political community – while failing to recognize that it is his class that has largely created the loss of coherence.  Note that Thomas Friedman’s columns mostly want Chinese communist command and control not to deal with plain emergencies that come from outside the ordinary politics of the political community – but instead, he longs for these authoritarian powers to do precisely the ordinary tasks that a democracy, in its messy ways, should be able to perform.  He is not wrong to identify the increasingly difficult problem of coherent political action; he is wrong not to recognize that it is a function of his own political elites and their systematic downgrading of precisely the legitimacy of political community over faction that they now desperately seek.

But the loss of coherence as a ground for authoritarianism is not really Hobbes’ core logic, which is one of creating a political community out of the state of nature not for the sake of being able to pursue common, collective interests, but for the purpose of security, one against another.  The current political masters are dismayed at the inability in crucial ways to govern a political community.  That concern, far from illegitimate, is instead one of the most fundamental problems of mature democracies; sclerotic interest group and identity politics factions displace not just the relations of the political community, but its fundamental legitimacy.  But it is an incoherence that they themselves both firmly helped create.

Finally, however, the liberal authoritarianism that started to take hold in the first days of the Clinton administration, but then went into retreat, and has now reasserted itself with nudginess – the return of the repressed – is not Hobbesian in another, utterly fundamental way.  Today’s progressive authoritarianism is not about an institutional settlement to the war of all against all, every man for himself and God against all, but instead an assertion of therapeutic authoritarianism.  It will not just provide you with security against your neighbor – it is for your own interior, psychological well being, to help you be simultaneously a better person and a therapeutically more happy one.  Contemporary liberal authoritarian impulses unite the prosecutor and the therapist, so as to produce a prosecutor who is as much a member of the “helping professions” as the psychologist (or, more exactly, the behavioral economist nudging us along), on the one hand, and a therapist who is armed as much as the prosecutor with the powers to compel, on the other.  It is not Hobbesian, but something frankly far more ambitious.

(A tangential thought.  I have sometimes been surprised that discussions of Leviathan often overlook the sheer modernity of its prose style.  It seems to me to exemplify, in the ways that most matter, Orwell’s call for a plain prose style, the style of Politics and the English Language.  Plain and unadorned, resting heavily upon the argument and far more lightly on the rhetoric.)

(Note:  I was going to clean this up and fix the grammar and some other unclear stuff before opening for comments, but I’m on the road today, so I’ll open it to comments, should anyone want to now, but try to get back and make some changes later.)

Call for Papers Announcement

AALS Section on Financial Institutions and Consumer Financial Protection

Beyond Financial Reform:  Mapping Regulatory Objectives, Institutional Forms, and Accountability in the Post-Crisis Landscape

Friday, January 7, 4-5:45 pm

2011 AALS Annual Meeting

San Francisco, California

The AALS Section on Financial Institutions and Consumer Financial Services will hold a panel presentation of selected papers during the AALS 2011 Annual Meeting in San Francisco, California.

Program Summary:

Three years into the deepest financial crisis in decades, debates rage on about the core objectives of regulating finance, the relative importance of competing objectives and the relative competences of competing local, national and global regulators.  This program will assess the recent reform efforts in context, to shed light on the choices inherent in determining who gets to regulate whom, how, and for whose sake.  What, if any, tradeoffs must be made between systemic stability and growth?  … safety and soundness and consumer protection?  … risk management and innovation?  … home country, host country, and multilateral regulation?  … regulatory effectiveness and accountability?

Leading policy makers, academics and market participants have staked out positions on the merits; yet others contend that reform has been mired in false choices.  The program will address the competing claims; explore the relationships among regulation, finance, and its economic, political and social context; and try to shift the terms of theoretical and policy debates to chart the path ahead.  Of particular interest are papers that:

Engage with economic and political thought on urgent policy problems,  such as macroprudential and countercyclical regulation;

• Address the challenges of compliance, regulatory arbitrage, and regulatory capture;
• Contribute to the debate about the institutional structure of regulation and the competing bases for allocation of regulatory authority; and
• Explore insights for financial regulation from other law disciplines, including bankruptcy, international law, and administrative law, as well as institutional and behavioral fields outside the law.

Call for Papers:

Law teachers and other scholars are invited to submit a manuscript or précis on any aspect of the foregoing topic.  Junior faculty members are particularly encouraged to submit.  A review committee consisting of Section officers will select one or more papers or proposals and will invite the author(s) of each selected submission to make a presentation at the program panel.  A précis should be comprehensive enough to allow the review committee to evaluate the likely content and quality of the proposed paper; however, complete drafts will receive preference in the selection process.  Please send submissions to the Program Chair–Anna Gelpern, American University Washington College of Law, agelpern@wcl.american.edu–no later than August 1, 2010. Please forward this Call for Papers to anyone who might be interested.

Eligibility:

Faculty members of AALS member and fee-paid law schools are eligible to submit papers for this panel presentation. Foreign, visiting and adjunct faculty members, graduate students, and fellows are not eligible to submit for this panel presentation; however, any such submissions may be considered for other parts of the Section program at the Annual Meeting.

Registration Fee and Expenses:

Call for Paper participants will be responsible for paying their annual meeting registration fee and travel expenses.

How will papers be reviewed?

Papers will be selected after review by members of the Executive Committee of the Section.

Deadline date for submission:

August 1, 2010

Contact for submission and inquiries:

Anna Gelpern, American University Washington College of Law,

agelpern at wcl dot american dot edu

Authors of accepted papers will be notified in September 2010.

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.

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.”

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.

(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?)

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 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.

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.  

Copenhagen just showed, for those who hadn’t thought this problem applied to them and their existentially important issues, that legitimacy means, among other things, that you’ve granted a “hold-up” to whomever you’ve ascribed legitimacy. Apparently that includes Robert Mugabe and Hugo Chavez.  That’s not a problem for me, because I ascribe minimal legitimacy to the UN and zero to the General Assembly and its members qua members.  But for a large number of international law experts, professors, academics, think-tankers, diplomats, journalists, and global governance devotees, this is a problem.

III

As to the academics:  Let me now predict a sizable number of law review articles in the next three years, devoted to showing ways in which the General Assembly and its member states together, and its organs and appendages, and the Group of 77, are not legitimate when it comes to holding up deals on matters of “existential” import to law professors.  Hooray for global oligopoly!!  But those same law review articles will also have to show, presumably, how all this is consistent with the many things said against unilateral action by one state in particular, and consistent with actions by congeries of states acting as great powers to impose on others in the world.

(I’d add as well that for the first time in quite a while, international law professors, who are the minor clergy of global governance, will suddenly discover reasons for writing about the institutional United Nations – a topic under some neglect in comparison to the academic love affair with international tribunals and international criminal law.  I predict a whole wave of law review articles giving a new theory of UN legitimacy, showing how it is true, and has always been true, and could never not have been true, that East Asia is at war with that global governance is really a theory of Some States Know Best, and that expertise, specifically in the form of climate change panels, confers legitimacy.  It is even possible that law professors will conclude that the General Assembly, through its resolutions, does not make international law, not even when cited by the International Court of Justice.)

IV

Genuine climate change believers might therefore consider that the price of hitching their wagon to the UN might well have cost them the game, at least for some time to come.  Versus, for example, a series of robust bilateral or multilateral deals among key players that simply ignored the UN and the motley of the General Assembly specifically.  It always appears tempting to take a global problem and enlist the global go-to organization … but more attention to the history of the UN and its processes might have suggested that, if one were truly serious about the issue, the UN was precisely the venue to avoid.

It is perhaps difficult for the environmental climate change community to understand that, from the UN’s standpoint as a historical player (a standpoint that the UN itself is unable to articulate, however) climate change is not the defining issue and never was.  The defining issue is the UN itself.  Climate change policy is simply the latest, and particularly aggressive, vehicle that the international community hopes will drive forward toward UN global governance.  If the history of UN causes, values, and agendas is any indication, climate change will be tossed aside if, and when, it too proves a bridge too far for global governance.

The wheel of politics turns at the UN – with the UN itself as the constant.  Perhaps climate change and global warming will be the issue that alters the wheel of change and not-change, but so far there is little indication of that.  None of this exhausts – far from it – the range of issues that swing in and out of fashion at the UN, particularly with respect to human development and global welfare.  Not long ago, on account of the Asian tsunami, it was natural disaster.  For a while it was pandemic disease.  These are all important issues – let us have no misunderstanding – but they are also “flavors of the month” (as the NGO expression has it) among funders, at the UN, in the international community.  They are also deserving of well-considered, well-funded answers.

As are the environmental issues that are not CO2, air pollution and water pollution, and many other environmental problems that cannot be captured in a global negotiation around the presumption that this percentage shift up or down in carbon emissions today will have one degree or a half degree or whatever degree at some far point down the road.  The science behind the connection might be perfectly defensible, but it’s a purely notional idea, whatever the science behind it, so far as the negotiators are concerned.  ”I’ll give you half a degree z-decades from now and you give me $x-billions-today”?  It would require remarkable faith in one’s discounting models to make deals like that – but its real-world significance is how much any future presumed degree shift translates into payments today to the developing world or, more precisely, to its rulers and their regimes: legitimacy, again.  It is not entirely dissimilar from bank managers looking to single number indicators of risk from their derivatives and securitizations – the number is notional and anyway they don’t understand its derivation, but that doesn’t matter because it is merely a marker in negotiation.

Climate change has, for the moment, swept the field as the “it-girl” issue of the UN and all its processes.  The confluence of “experts and enthusiasts,” together with the permanent search by the UN bureaucracy for the issue that will drive “global governance,” and the permanent seeking by the worst actors who dominate the General Assembly, snuffling around for new resources, ensured that whatever the merits of the issue, the actors would goad each other on to further and further claims – for money, for legitimacy, for political governance.  Those who come to the governance issues from the inside of a single substantive issue, such as climate change, are perhaps taken by surprise, because, for the UN’s permanent actors and constituencies, climate change is just another issue on which to plump for global governance, on the one hand, and a hold-up premium on legitimacy, on the other.  There were other, quite unrelated issues, for which the same governance claims were made; they failed, as this one likely will but, from the standpoint of the permanent interests of the UN, what matters is not any particular issue, but the perennial claim to governance.

V

Secretary General Ban meant it quite sincerely when he said that the world faced an existential crisis over climate change.  What he meant, however, was not limited to climate change – but rather for global governance, for which climate change is an existential driver.  But so might many other things, and will be, if this one does not work out.  Because what matters for the UN is not finally climate change or anything other substantive issue, but the claim to legitimate governance of as much as possible.  This is what the UN bureaucracy always says, about every issue, in which there is a suggestion, a hint, that it might be the thing that cracks open the possibility of the governance to which the UN believes it is legitimate heir.  (The legitimacy question will not go away – and the international law experts will have to make some hard choices about what they prefer, their substantive outcomes on certain global issues or their hithertofor views of legitimate global process.  I foresee much squaring of circles in the academic literature.)

But if your issue is climate change, query that you might not have given sufficient attention to the long history at the UN, across a wide range of issues, serially proposed to constitute “existential crises” for which only global governance could save us.  There was something before, and there will be something after; seen specifically from the standpoint of the permanent and objective interests of the UN, climate change is not just a substantive issue, it is also a card to be played in a much longer game.  Believing in Ban and in themselves, and believing that this time around there were clever answers to the collective action questions, the advocates before and at Copenhagen, the experts and enthusiasts, ratcheted up and up the agenda of things that would have to be addressed in this “existential” crisis.  The agenda finally looked largely indistinguishable from the permanent wish list of governance – check back at previous instantiations of UN crises, however, whether 2005 or earlier ones, and much the same pattern emerges.  Unable to withhold the “hold-up” of global governance legitimacy that goes along with the principle of sovereign equality, equally for Mugabe as for Brown or Wen or Obama or Merkel, demands went up and up.  Then the bubble began to collapse.

VI

Other issues will come to the fore as this one recedes, for a time or until the next big review conference at which hundreds of millions of dollars can be spent on the peculiar culture and social affairs of global elites or else permanently.  At the UN, however, these issues are inevitably part of the institutional cycle of permanent crisis.  Whatever importance they have on their own, within the dynamics of the UN, they have a specific role to play in the waxing and waning of crisis-and-stasis.

Does the bubble of misplaced expectations, and its pricking, matter?  Of course it matters if and to the extent one thinks that climate change is an important issue.  Moreover, it is a humanitarian and welfare disaster for important issues, ranging from development to the global epidemics of AIDS, tuberculosis, malaria, etc., to peacekeeping and post conflict peacebuilding that have a moment in the sun, but then are displaced by some new enthusiasm on the part of the international community.  There is a long list of issues that need to be addressed multilaterally, in some useful sense of multilateral, but serial, crisis attention is not the way to do it.  The marching, but marching in place, of the UN, and its cycle of equilibrium sustained and weirdly strengthened by punctuated crises, has profound costs.

(PS.  Stewart Baker’s take is very interesting, here, at Skating on Stilts.)

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.

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.

(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.

[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.