Month: June 2008

Now that same-sex marriage in California is two weeks old this might be a good time to reflect on how the initiative fight is going to shape up. One of the most interesting things to me about the first few days of same-sex marriage here was the character of the coverage by radio and TV. Time and time again newscasters and reporters fell into colloquial descriptions of marriage — “tying the knot,” “getting hitched,” etc. This seems significant to me because it put a fundamentally positive spin on the marriages. Of course there were other reasons for the favorable coverage. Gay rights groups carefully managed the first few marriage ceremonies, such as the now-famous one in San Francisco between two older women who have been in a relationship for over fifty years. More generally gay couples getting married during the early days seemed to have understood the importance and seriousness of the occasion, not just for them but as a matter of public discourse. And of course the media might simply have been biased in their favor to begin with.

For my purposes now, though, what seems significant is that the very act of getting married is looked upon so positively that watching pairs of adults do it on TV is bound to make people sympathetic. After all, who looks at a marriage ceremony and scowls at the couple? So I suspect it was natural for reporters to slip into a more favorable, or even celebratory, frame of mind when covering the story.

This matters because it suggests that the anti-marriage rights forces were probably right to lay low during the initial period, for fear of seeming petty. Indeed, the L.A. Times quoted one marriage-rights opponent to the effect that his side was letting gay couples “have their day” before beginning their campaign. But what do people’s fundamentally positive reaction to two people getting married mean for the tack the anti-marriage rights forces will take during the fall campaign?

People intimately involved on the pro-marriage rights side of the debate have told me that they expect the other side to focus on the “judicial tyranny” angle more than simple opposition to same sex marriage. Presumably, the argument would be that the state supreme court acted illegitimately when it reversed the people’s decision from 2000, when Californians approved Proposition 22, the statewide initiative that defined marriage as between a man and a woman, and that the people need to respond to that usurpation of authority. (Of course, one could argue that the initiative process is providing exactly that popular response to the court’s action. Thus, one could dislike what the court did but still consider the entire process to be working well, since indeed the people will get the final say on the issue. But that’s going beyond the point I’m trying to make here.)

If same sex marriage ceremonies and couples continue to get the same kind of coverage they’ve gotten so far the other side is probably smart to seek to turn the debate away from individual couples, or even the idea of same-sex marriage, and toward this more process-based angle. It will be interesting to see how the argument plays with the public. Scholars have debated whether voters really care about structural issues such as federalism or whether they only care about substantive policy outcomes. I’m not sure we’ll get an answer from this particular campaign, since I’m sure there’s a group of voters who oppose marriage rights regardless of which branch and which level of government proposes it; that group will vote for the proposition just because they want to prohibit same-sex marriage, and not because they want to reassert popular control over issues such as marriage rights. But presumably the forces pushing the proposition will do polling; it will be interesting to see if they stick with this anti-court theme or switch gears at some point and start focusing instead on the underlying substantive issue.

Anyway, that’s it for my summer blogging stint. Thanks as always to Dan for the opportunity, and to those of you who took the time to read (and even respond) this past month.

Posted by Bill Araiza on June 30, 2008 at 07:55 PM

Comments

Unfortunately, this is an issue where mainstream opponents of gay marriage have traditionally shied away from honestly making their case against it. They have focused on procedural issues, and they have defended “marriage” often without ever specifically mentioning the existence of gay people at all.

And that’s the fundamental problem with the debate. Gay couples exist. They have kids. What do we do in the face of that? The answer for many opponents seems to be to simply implicitly remain in denial about that fact, having really no answer for gay couples and families other than that they are wrong and should not exist.

It’s not like anti-gay marriage intellectuals haven’t and can’t make a case against gay marriage. It’s just that by and large, politicians and groups opposing it haven’t been willing to make that case as directly.

We’ll see if the California debate shapes up any differently, but I doubt it.

Posted by: Bad | Jul 1, 2008 7:50:30 PM

I was pleased to see in Adam Liptak’s Week in Review piece, The Chief Justice, Dylan and the Disappearing Double Negative (based on an article by Alex Long at the University of Tennessee), that Bruce Springsteen ranks as the third most-cited rocker in judicial opinions. However, I can’t help but think that, even coming in at number three, the Boss is being underutilized in the judicial lexicon. To help matters along, I offer the following suggestions for incorporating Springsteen lyrics into decisions going forward (and welcome to the suggestions of other Springsteen fans out there):

For suits alleging corruption in home lending practices: “Welcome to the new world order Families sleepin’ in their cars in the Southwest No home no job no peace no rest.” -The Ghost of Tom Joad, the ghost of Tom Joad

For suits challenging the issuance of permits to new coal-fired plants: “From the Monongahela valley To the Mesabi iron range To the coal mines of Appalachia The story’s always the same Seven hundred tons of metal a day Now sir you tell me the world’s changed” -The Ghost of Tom Joad, Youngstown

For the immigration judge: “They left their homes and family Their father said ‘My sons one thing you will learn For everything the north gives it exacts a price in Return.’ -The Ghost of Tom Joad, Sinaloa Cowboys

For the criminal case: “Your fingerprints on file Left clumsily at the scene” -Magic, Your Own Worst Enemy

For assessing redressability: “‘Ain’t nobody can give nobody What they really need anyway.’” -The Ghost of Tom Joad, Dry Lightning

For assessing whether a claim is ripe: “We´re livin´ in the future And none of this has happened yet” -Magic, Livin’ in the Future

For sentencing after a murder conviction: “Nothin’ taken nothin’ stolen Somebody killin’ just to kill” -The Ghost of Tom Joad, The New Timer

For police shooting cases: “Better ask questions Before you shoot” -The Rising, Lonesome Day

For the mediator: “The time has come To let the past Be history Yeah, if we could Just start talkin’ Don’t know when This chance might Come again” -The Rising, Let’s Be Friends

For the family law judge: “Love leaves nothing’ but shadows and vapor We go on, as is our sad nature” -Devils & Dust, All the Way Home

For the bankruptcy judge: “In the end what you don’t surrender Well the world just strips away” -Human Touch, Human Touch

For a bankruptcy reorganization: “Everything dies baby that’s a fact But maybe everything that dies someday comes back” -Greatest Hits, Atlantic City

For FCC cases: “Fifty-seven channels and nothin’ on Fifty-seven channels and nothin’. . . “ -Human Touch, 57 Channels (And Nothin’ On)

And

“This is radio nowhere” -Magic, Radio Nowhere

For any case applying a balancing test: “Well you may think the world’s black and white And you’re dirty or you’re clean You better watch out that you don’t slip Through them spaces in between” -Human Touch, Cross My Heart

And

“And what once seemed black and white turns to so many shades Of gray” -Greatest Hits, Blood Brothers

For the perjury trial: “Once you cross you’re heart You ain’t ever supposed to lie” -Human Touch, Cross My Heart

For assigning successor liability: “’Before you choose your wish son You better think first ‘Cause with every wish there comes a curse’” -Human Touch, With Every Wish

With this last very important post, I’ll sign off . . . with the Boss’ help of course.

“A breeze crosses the porch Bicycle spokes spin ´round Jacket´s on, I´m out the door” -Magic, Girls in Their Summer Clothes

Posted by Katrina Kuh on June 30, 2008 at 11:36 AM

Comments

The authoritative citation for Atlantic City would be Nebraska, not Greatest Hits.

Posted by: bossfan | Jul 7, 2008 9:32:05 AM

For any Bivens claim: “See that flag flying over the court house, it means certain things are set in stone. Who we are, what we’ll do, and what we won’t” Long Walk Home, Magic

Any claim relating to false advertising: “Trust none of what you hear And less of what you see” Magic, Magic

What the Court of Arbitration for Sport could have said in Oscar Pistorius’s appeal: “Baby, we were born to run.”

Posted by: Thurston Webb | Jul 3, 2008 5:38:27 PM

Outstanding post!

Posted by: Dan Markel | Jul 2, 2008 9:12:01 AM

For the ADR arbitrator:

“Remember, in the end, nobody wins unless everybody wins.” – Intro to Born to Run video (1986).

Posted by: andy | Jun 30, 2008 12:47:03 PM

A while back, Brian Leiter started noting faculty retentions in addition to his usual catalog of lateral moves. I think this was a very useful innovation, because simply taking note of successful lateral hires obscures our perception of faculty loyalty, where it exists. Of course, the data on retentions is a little harder to come by, so any such effort will necessarily be incomplete. For that reason, I thought I would use my last post for this go-round on Prawfs to note a faculty retention that didn’t make it onto Brian’s page. Jeff Rachlinski (Cornell) has turned down a lateral offer from the University of Chicago, opting instead to remain in the balmy (relative to Chicago) environs of the Fingerlakes. This is, obviously, a key retention for the Cornell faculty, where Jeff is a tremendously important and valued colleague.

Posted by Eduardo Penalver on June 30, 2008 at 09:31 AM

Comments

I have noted retentions for quite a long time, actually, in cases where I had been authorized to post the fact of the offer. The Bellias were an exception, and I soon decided it was a bad idea, partly for logistical reasons, partly because it implicates more privacy interests. On the other hand, when I’ve posted the fact of an offer (something I do more for philosophy than law, since the movement of individaul faculty matters more to the fortunes of a phD program typically), I do try to post the denouement, whatever it is.

As with moves, so to with retentions: their interpretation, and their underlying motivations, are often, shall we say, complex. The latter may reflect faculty loyalty, the former disatisfaction. Or they may not.

Posted by: Brian | Jun 30, 2008 12:35:38 PM

A British scholar, Emmanuel Voyiakis, posted on SSRN a response (Contracts, Promises, and the Demands of Moral Agency (CURRENT LEGAL ISSUES: LAW & PHILOSOPHY, Freeman & Harrison, eds., Oxford University Press, 2007)) to Seana Shiffrin’s The Divergence of Promise and Contract (HT Larry Solum). I have a piece, also addressing Professor Shiffrin’s article, coming out later this summer in the Canadian Journal of Law and Jurisprudence. So I dropped Professor Voyiakis a note and we’ve been e-mailing back and forth.

The question is whether those aspects of contract law that seem to uphold efficiency over promise impinge upon the flourishing of moral agency. Both Professors Voyiakis and Shiffrin are more articulate than I am on the subject, and I recommend them both.

In our correspondence, I used a phrase that seemed odd, on reflection, just after the decision in D.C. v. Heller. A point I’ve made about contract law as well as corporate governance law is that the law gives us myriad tools we may employ instrumentally and opportunistically. But the moral choice to act (or not act) on a legal right precedes the law, at least in the voluntary domain in which I traffic. What I said was: “just because you have a weapon doesn’t mean you have to use it.”

Which brings me to guns. I want to put aside the question of constitutional interpretation, and consider, apropos of my last post, causal explanation and the right to bear arms. If Thomas Haskell is right, since 1787, there has been a major shift in how we make sense of the world, from a world then in which the individual’s perception of one’s own causal potency predominated, to one now in which we are buffeted by (nay, even victims of) all sort of independent causes in the world that are not us. It seems to me we live in a world of more generalized fear, and that impels both the pro-gun and the anti-gun sides in a way that is just different from ever-present but far more individualized dangers that existed in 1787. “Just because you have a weapon doesn’t mean you have to use it.” Among civilized people (as Justice Scalia notes, for example, in England, that meant Protestants) bearing arms didn’t mean you had to use them, at least in connection with other civilized people, you knew the other civilized people, and you could fairly expect that they wouldn’t use them to shoot you! In a world of remote explanatory cause, it’s reasonable to assume that the existence of guns means they will be used, because our explanations of the relationship between guns and events no longer depend on the individual causal potency of ourselves and the people we know.

Justice Scalia says:

Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem.

If you were creating a new nation today, would you include a right to keep and bear arms? (I would imagine that’s an active issue among the comparative constitutional scholars.) That would at least take the issue out of interpretation, and highlight the underlying question: is the nature of what we fear different now?

* * *

Well, to paraphrase Ray Magliozzi (of my Fair City), you’ve just wasted another perfectly good month reading these posts. See you next year (assuming I haven’t worn out the courtesy extended to me by the proprietors!). And even though Dan Markel wants to line the classroom walls at Florida State with lead to keep out the internet when he sees me write it, “This is PrawfsBlawg.” (Sorry, Ray.)

Posted by Jeff Lipshaw on June 30, 2008 at 06:43 AM

Comments

I certainly believe the nature of what we fear today is different from what the founding fathers feared. The notion of having to take up arms against one’s government is very alien to most Americans. We’re much more afraid of being mugged or raped than of being oppressed by our government. Plus, an armed revolution against our government isn’t even possible; handguns and limited assault rifles are no match for M1 tanks and Apache helicopters.

If I were drafting a new Constitution, there would be no doubt that I would include the right to have longarms such as rifles and shotguns. The only way I would exclude handguns is if this were some new magical nation and there weren’t already millions of handguns in circulation. For the same reason I oppose banning handguns; there are already so many out there that criminals will still get them, while honest citizens won’t have them to protect themselves.

Posted by: Justinian Lane | Jun 30, 2008 10:22:38 AM

Don’t blog like my brother!

Posted by: tom | Jun 30, 2008 8:45:35 AM

Peter Schuck and James Q. Wilson have edited an impressive one-volume collection of essays on American insitutions, cultures, and policies. Understanding America: The Anatomy of an Exceptional Nation (Public Affairs 2008) is an extraordinary collection of essays by leading scholars covering a broad range of topics, including the political, legal, and economic systems; political and popular culture; religion; the media; family; immigration; race; education; health care; criminal justice; and drug policy. Schuck and Wilson present the volume as an exploration of American exceptionalism that specifies the ways in which America is unique among liberal democracies. The book provides important tools and insights useful to anyone writing on law and policy.

Posted by Tim Lytton on June 29, 2008 at 10:52 PM

I haven’t been able to blog too much the last little while as I’ve been on the road and feverishly trying to make progress on a few projects. But I wondered just now if any of you caught the SNL tribute to George Carlin last night of the first episode ever, which Carlin hosted? I had a couple reactions: First, the show seems to have started very poorly and haphazardly. How did it succeed to a second episode? Most of Carlin’s jokes fell flat not only now but also to much of the studio audience. So much of the rest of the show was pretty forgettable or worse, triggering groans and fierce patience–not to mention, what became of Janis Ian and Billy Preston, those musical guests too??

The other reaction is a mite more substantive. During the inane Albert Brooks short, the news segment “reports” that one of the states lowered the age of consent to seven and then cuts to a guy trying to work some mojo with a seven year old girl in a bar. It wasn’t particularly funny, but it was remarkable: I can’t imagine that skit being run today even when the show and society at large is so much … raunchier. I wonder in what other ways our comedic norms of what’s passably funny today are more “conservative” than they were 33 years ago. I’m guessing humor poking fun at minorities is less likely to pass muster on SNL today than it would have in the 70’s —but see Chapelle’s show— but I’m not sure what else has experienced the same “trajectory of uptightness.” Thoughts?

If you’re looking for an interesting tribute of a more scholarly sort, check out Janet Halley’s latest in the Harvard Blackletter Law Journal. It’s the polished version of the remarks she made upon her installation as the Royall Chair at HLS. In the article, entitled “My Isaac Royall Legacy,” Halley explores not only the distinguished legacy of those who preceded her as Royall Chair (including Thayer and more recently Clark), but also the social context which created the conditions for the bequest to Harvard to establish the Chair. The context Halley illuminates includes discussion of the slaves owned by Royall and what (precious little) we know about them. It’s definitely an unusual way to say, Hey Elena, thanks for this great Chair! But putting aside Halley’s little footnote snark about the “victims” of Harvard Law School’s legacy — snark, because it’s unelaborated — I can’t imagine a more appropriate way to pay tribute under the circumstances.

Posted by Administrators on June 29, 2008 at 06:17 PM

Comments

I LOVED that Albert Brooks short. I always thought his stuff was way ahead of it’s time and really clever. I think they stole more from him than anyone.

Posted by: bob markum | Jul 3, 2008 3:28:44 PM

Brannon, thanks for skewling me as to Preston’s achievements. I had never heard of him or the song that he played on that first episode of SNL. I didn’t mean to imply that he was *then* an obscure unknown–just that today he seems a bit unfamiliar. But that’s just my ignorance talking — again!

Posted by: Dan Markel | Jul 2, 2008 9:23:28 AM

Dear Dan:

Surely you’re not suggesting that keyboard impresario Billy Preston was an obscure unknown? Preston was an outstanding sessions musician, and played the cool organ solo on the Beatles’ “Get Back.” He also did some of the great keyboard work for the Rolling Stones on albums like “Sticky Fingers” and “Exile on Main St.” He toured with them as well. He wrote the song, “You Are So Beautiful” made famous by Joe Cocker and who could forget his signature song “Nothin’ from Nothin'” (with the memorable line “Ya gotta have somethin’/If you wanna be with me”). He died in June 2006 at the age of 59.

Yrs,

BPD

Posted by: Brannon Denning | Jun 30, 2008 10:16:52 PM

That second link was bad. Here it is: http://www.hulu.com/watch/19187/saturday-night-live-cork-soakers

Posted by: Paul Washington | Jun 30, 2008 12:24:45 PM

Dan, I think Carlin’s jokes fell flat because he just wasn’t very funny. Just my opinion, though.

Anyway, your other point is more intriguing. Case in point: SNL would never air this sketch today, but it wouldn’t have aired this one in 1975.

Sketches that make fun of racial minorities get strict scrutiny, so to speak, today, while those that use gender-based humor are slightly more acceptable. However, making light of homosexuality is perfectly acceptable on TV today.

Posted by: Paul Washington | Jun 30, 2008 12:16:03 PM

I hate to be this picky but it’s Chapelle Show not Chapelle’s show-I was called out on that too.

Posted by: jim | Jun 29, 2008 10:38:46 PM

My sense was that it was kind of disconnected–a series of distinct skits/routines/performances (many of which, I agree, were not particularly funny) that were not even linked via an introduction. Compare Carlin’s opening monologue (his now-class football/baseball routine) with current monologues, which introduce the entire show. I think, though, the reason it was allowed to continue was that everyone watching it knew it was something new and different and it needed time to find its feet. I think it also performed well in the ratings. The oral history “Live from New York” does a good job of capturing what they were doing in those early days.

As for Dan’s question about what comedy is off-limits today: An anecdote. In the movie “Vacation,” two young girls (cousins) are talking. One says “I’m 14 and I French kiss.” The other says “So, everyone does that!” And the first responds “But my daddy says I’m the best.” About 10 years ago, when it was shown on basic cable, that line was over-dubbed to “But my *teacher* says I’m the best.” So that tells us how we have evolved–child sexual abuse is OK for comedy, as long as it is not incestuous . . .

Posted by: Howard Wasserman | Jun 29, 2008 7:22:54 PM

Two people whose blog posts and comments I almost always enjoy seemed to disagree about something over at Concurring Opinions. I think it is an interesting point of entry into why academic and practicing lawyers are often ships passing in the night. Academics use the term “under-theorized” all the time; I never heard the term in twenty-six years of practice. This simple point has been heretofore under-theorized. I’m going to step into the breach with the following theory about under-theorization: Academics are reductive (indeed, in some cases, radically reductive) theorists; practicing lawyers are not. Academics seek to theorize – i.e. to provide causal explanation of social events in time and place – in a reductivist way. The social world is too diverse for highly reductivist theory without specialization; practicing lawyers, on the other hand, have theories too, but the causal explanation is at a level academics would call under-theorized.

Here’s what triggered this. In his post, Deven Desai extolled the value of summer reading for academics, but added “[o]ne last note to non-academics and students: although practice may seem isolated from outside reading, I found that the best attorneys I knew read voraciously about their area of the law and about how to excel in writing or oral argument.” A thoughtful and frequent commenter from the real world of practice, A.J. Sutter (why doesn’t somebody ask him to guest blog?) begged to differ:

Drilling down and reading voraciously about your area of law can actually be counterproductive. If you’re doing transactions, a sensitivity to the nuances of drafting is certainly essential, but a highly detailed knowledge about case law may get you focused too much on pathologies, rather than usual practice. Moreover, it isn’t so difficult for a client to find someone who knows a lot about a particular area of law.

What a client cares about is finding someone who understands his or her BUSINESS. The client also cares about finding someone with whom he or she can have personal rapport. (Lest you think corporate clients are “it”s, you will always be dealing with flesh-and-blood human beings, and usually with one key decision-maker, such as a GC or other in-house lawyer if the company is big.)

It so happens that something that I’m reading this summer helps theorize about both views and is the basis of my thesis above. More on Thomas Haskell‘s The Emergence of Professional Social Science, after the jump!

Haskell sets modern professional social science, as a subset of modern professionalism generally, in context by studying the rise and fall of the American Social Science Association, the forerunner of modern disciplinary associations like the American Historical Association and the American Economic Association.

Here is my poor attempt to restate his thesis, in a nutshell. Each of us has a sense (perhaps naive) that we are free and volitional agents, largely able to determine for ourselves the course of our lives; we have, in Haskell’s words, “causal potency.” Moreover, until the late 1700s and early 1800s, little about the organization of society undercut the soundness of that belief. Individuals lived in dispersed and independent communities (by and large), and the cause of things – in the sense of reasoned explanation that made sense of the world, and to the extent educated people thought about these things – was proximate, either in oneself, in one’s local community, or in a personal God that determined otherwise inexplicable events.

Beginning in the 1800s, as the Industrial Revolution and urbanization took effect, educated people (not just academics) came to believe that such explanation required understanding the impact on individuals and local communities of remote causes, in short, cause and effect in an increasingly interdependent world. With increasing interdependence came increasing specialization – the rise of professions. The transitional model was the ASSA, a group largely of New England social inquirers, general social philosophers as it were, who themselves were overwhelmed by the next generation of truly professional social scientists.

What Haskell argues is that there is a connection between the rise of societal interdependence and the contemporaneous ceding to professionals (by educated people generally) of the task of causal attribution between events in the world. My take on Haskell is that he not only makes sense, but that we’ve not mastered the theory of theorization in more than one hundred years since Charles Peirce, William James, and John Dewey thought about it.

Haskell says social science is a search for the independent variables of explanatory cause somewhere between the “causal potency” of the individual and First Causes like God:

To engage in inquiry is to search for genuine causation, to shear away merely secondary influences and necessary conditions so as to isolate those factors which, within a given frame of reference, can be regarded as self-acting, causal entities – “independent variables” As causes recede and as growing interdependence introduces more and more contingency into each chain of causation, the realm of inquiry must expand and the conditions of satisfying explanation must change. Common sense fails and the claim of expertise gains plausibility. Explanation itself becomes a matter of special significance, because the explainer promises to put his audience back in touch with the most vital elements of a receding and increasingly elusive reality.

And when does the pursuit of this chain of causation end? It’s a troubling issue. Haskell relates that Herbert Spencer learned as a child to question every cause and “as an adult took to his bed and wore earmuffs to prevent overstimulation of his senses.”

There’s a kind of Rule of Recognition problem going on here. In a specialized, professional world, how do you recognize expertise? Haskell’s historical account says professional organizations arose in order to achieve a community of expertise. For ordinary lay people, lawyers are a prime example of such a professional guild, but modern philosophers and historians and economists and sociologists have their self-certifying guilds as well. Those particular protocols surfaced, for example, in the form of peer review for publishing and tenure review for advancement.

What strikes me about the current state of legal academia – particularly the debates over interdisciplinary work – is how it resembles the 1890s, in terms of the contrast between the old “gentlemen social inquirers” and the new professional social scientists. Academic lawyers merely skimming the surface of specialties appear to their more specialized brethren as dilettantes, particularly as the specialists dig deeper and deeper into reductivist explanation. I speculate (theorize?) that philosophical (Susan Neiman?) or economic (Steven Levitt or Paul Krugman?) or historical (David McCullough or Doris Kearns Goodwin?) public intellectuals are the closest equivalent to practicing lawyers in trying to operate at a level of explanation above the technical, and as such operate either outside or at the very boundaries of the community of academic professionals in those areas.

Lawyers are different, in the sense that there is a vaster layer of the discipline that interacts on a daily basis with the lay community, and must necessarily “theorize” or explain cause and effect that the more specialized and reductive members of the discipline reject as unsatisfying. The analogy from another Haskell work, Objectivity is Not Neutrality, is apt. Suppose a legal issue involves why some pipes froze in Duluth and caused extensive damage to a building. Expert testimony on the physics of water molecules and how the expansion causes by crystallization would burst the pipes would be impertinent, because it operates at the wrong level of explanation. The pipes burst because the superintendent of the building forgot to turn the heat on!

So now we understand the Deven-A.J. dialogue a little better. Deven is rightly suggesting what a law professor should suggest: drill down, learn the details, find the underlying causes, and then the causes of those causes. A.J. is rightly responding in so many words: that’s not the level of explanation – of causal attribution – that operates between practicing lawyers and their clients (nor, would I add, between most practicing litigators and either judges or juries).

The open question is whether the specialized, professional, reductivist explanation is the better one. My answer is: it depends what you are trying to explain. For a critique of an attempt to use economic theory to explain contract interpretation, see my Models and Games: The Difference Between Explanation and Understanding for Lawyers and Ethicists, forthcoming this fall in the Cleveland State Law Review, at pp. 29-43.

Indeed, even old practitioners can get co-opted. My friend Bill Henderson understandably took me to task in good ol’ plain English a couple weeks ago for an unduly specialized explanation of classroom deportment in my syllabus: “what the hell are you talking about? All those years of practice, and you obscure a simple issue with Kant and Posner.” He (and other commenters) were right, and I dropped it from the syllabus.

Posted by Jeff Lipshaw on June 28, 2008 at 11:04 AM

Comments

Loved the post. I read a lot of history of the legal education profession; I completely agree that virtually everything today has a historical analogue that tells us how things will turn out today (unless we can “theorize” an appropriate intervention).

I often wonder “whether the specialized, professional, reductivist explanation is the better one.” I will read the your essay to figure that out. Is it possible that the best does both? Thx. bh.

Posted by: Bill Henderson | Jun 29, 2008 3:36:21 PM

I spent most of yesterday online answering questions from readers of the local paper about the Heller decision and found myself surprisingly unworked up. Usually, the end-of-the-term blockbusters elicite either elation or anger, but Heller left me strangely cold.

Did I disagree with result? Yes. Did I think it was the end of the world? No. Dahlia Lithwick has an interesting little post about the decision making a similar point (though, contra her speculation, I highly doubt that my lack of passion about gun control is some subliminal attempt to reassert my masculinity).

I’ve got one (two-part) question and one (straightforward) suggestion for those on the legal and political left. The question is do others feel as unexcited about Heller as I do and, if so, why? The suggestion is that if you feel like you are missing your standard end-of-term dose of outrage that you go back and read this brilliant post by Walter Dellinger on last term’s Seattle schools case (which I somehow missed during last year’s term post-mortem).

Posted by amsiegel on June 28, 2008 at 10:39 AM

Comments

When, a week or so ago, it started looking likely that Scalia would be the author of the majority opinion, I was looking forward to a sophisticated historical treatment of the Second Amendment. I thought: whatever one thinks about the relevance of history (in the vehicle of public meaning originalism or otherwise), this is the case that will show historical analysis in its most powerful light. The combination of factors seemed perfect for an opinion rich in history: A Justice who cares most about history; the benefit of scholarship and scholarly briefs; smart and able law clerks who will leave no stone unturned; little in the way of precedent to limit what can be achieved. Measured against these expectations, Scalia’s opinion left me disappointed. The historical analysis basically combs familiar sources for useful quotations. It moves from era to era with little regard for context. There is no sense of nuance or proportion; no recognition that in a single era (let alone the entire period from the 1780s to the end of the nineteenth century), there are complexities, disagreements, and evolutions. This use of history, seemingly the best we could get, just was not very good. By the time I made it through Stevens’ dissent, I concluded that, years from now, Heller might mark the point at which it became clear (to those of who still hoped) that, even with all the resources of modern life, the Supreme Court is just not very good at history, or at using history to resolve modern disputes. I have been thinking more about that than about guns in homes.

Posted by: Jason Mazzone | Jun 28, 2008 12:00:37 PM

Last week, the Supreme Court granted cert in Winter v. NRDC, a case involving, inter alia, the Navy’s compliance with environmental review requirements under the National Environmental Policy Act (NEPA) prior to its use of sonar in a manner allegedly harmful to marine mammals off the coast of California. In short, the Navy conducted an Environmental Assessment (a preliminary study to determine if more in-depth review is necessary) and found that, with some mitigation measures, its sonar activities would not give rise to a “significant effect” on the environment and thus did not require to a full Environmental Impact Statement (EIS). Environmental groups sued seeking to have the Navy conduct more detailed environmental review and won a preliminary injunction barring certain Navy exercises prior to the completion of a full EIS. The Council on Environmental Quality (CEQ) thereafter attempted to exempt the Navy from preparing an EIS based on a finding of “emergency circumstances” under 40 C.F.R. § 1506.11, which provides:

Where emergency circumstances make it necessary to take an action with significant environmental impact without observing the provisions of these regulations, the Federal agency taking the action should consult with the Council about alternative arrangements. Agencies and the Council will limit such arrangements to actions necessary to control the immediate impacts of the emergency. Other actions remain subject to NEPA review.

I say “attempted” because CEQ’s interpretation of “emergency circumstances” was rejected by both the district court and the Ninth Circuit. The Supreme Court has now granted cert to consider, in part, the failure of the lower courts to credit CEQ’s decision.

Something that interests me about this case is whether CEQ’s actions will be treated as the type of politicized agency action that the Court appears to have approached with a hostile attitude of late. In Massachusetts v. EPA: From Politics to Expertise (2007 Sup. Ct. Rev. 51, 52), Jody Freeman and Adrian Vermuele argue persuasively that “the Court majority’s increasing worries about the politicization of administrative expertise, particularly under the Bush administration” motivated the Court to “to override executive positions that they found untrustworthy, in the sense that executive expertise had been subordinated to politics” in cases such as Massachusetts v. EPA, Gonzales v Oregon, and Hamdan v Rumsfeld. Thus, if CEQ’s attempted intervention fits the mold of this kind of politicized agency action, perhaps the Court will be less inclined to credit it.

In some ways, CEQ’s intervention looks like the aforementioned type of politicized agency action. After all, CEQ resides in the Executive Office of the President and CEQ apparently approved the Navy’s request for an exemption after only four days and without considering the full record. (NRDC’s Reply refers to the process as “an ex parte proceeding before the White House CEQ.”) And one gets the sense from the Ninth Circuit’s opinion that it may well have had in mind various recent examples of politicized agency action – EPA’s refusal to recognize carbon dioxide as a pollutant under the Clean Air Act, EPA’s refusal to grant California a waiver to set stricter emission standards, etc.

In other ways, however, CEQ’s actions in Winter don’t quite fit the same politicization mold. For one thing, here CEQ’s judgment accords with that of the Navy so there is no interagency pressure being exerted. (It is unfortunate but usual in NEPA litigation for environmental review documents to be prepared by the government agency seeking to undertake an action.) Nor does there appear to have been intra-agency pressure exerted – I’m unaware of any allegations of disagreement within CEQ about the grant of the exemption. The exercise of executive political will in this instance was not directed intra- or interagency to override administrative expertise, but instead seems to have been directed at the legal process. It will be interesting to see whether/how these dynamics play out in the Supreme Court’s consideration of the case.

Posted by Katrina Kuh on June 27, 2008 at 07:43 PM

Hello again. I just wanted somebody else to put up the first non-Heller post before I resuscitated this chestnut that has been stuck in limbo on TypePad.

“What’s most interesting to me is that this is one of the few bona fide culture gaps between most contemporary law students and their reasonably tech-savvy professors: you guys didn’t have the internet in class when you were in school.”

This was part of a nicely-written anonymous comment to my post a while back on internet access in the classroom. At the risk of beating a dead horse, Anonymous was correct: this isn’t about Google, it’s about generations. In the “do what I say, not what I did” analog to “daddy, did you ever smoke marijuana?,” Alene said to me, “didn’t you do the New York Times crossword puzzle in class?” I said, “yes, but only when it was boring.” God only knows what I would have done if the puzzle had been available online.

Are broad characterizations about generations valid? It seems to me that some of them have to be. My parents grew up without television; my adult millennial children have never really known a world without broadband internet access. That has to have had a sweeping influence on how each generation views the world, even if fundamentally there is nothing new under the sun.

Coincidentally, I saw the abstract the other day of a Kentucky Law Journal article by Leslie Larkin Cooney, Giving Millennials a Leg Up: How to Avoid the “If I Knew Then What I Know Now” Syndrome. And a friend steered me to a 2007 Harvard Business Review article by Neil Howe and William Strauss entitled The Next 20 Years: How Customer and Workforce Attitudes Will Evolve. Both make sweeping generalizations about generational differences, the latter claiming a pattern of American “Prophet” “Hero” “Nomad” and “Artist” generations going back to 1588. Boomers are Prophets; Gen-Xers are Nomads; and the authors think Millennials will be Heroes.

That’s consistent with the inclinations my Millennial children seem to demonstrate. For his twenty-first birthday present, my son Matthew asked for a Sierra Club membership; I was so proud of him that I bought him a Life Membership – $1,000 to the environment, and not, as I understand from the “felons and mentally ill” restrictions allowed by Justice Scalia’s opinion, in support of the right to arm bears.

Posted by Jeff Lipshaw on June 27, 2008 at 02:49 PM

U.S. News and World Report has announced that it’s thinking about changing its law ranking methodology in two ways. To quote their blog: “The first idea is that U.S. News should count both full-time and part-time entering student admission data for median LSAT scores and median undergraduate grade-point averages in calculating the school’s ranking. . . . Another idea . . . calls for U.S. News to compute our bar passage rate component (school’s bar pass rate/jurisdiction’s bar passage rate) using only the data of first-time takers who are graduates of American Bar Association-accredited schools.” According to the posting, this second idea was proposed in a report on U.S. News rankings commissioned by the AALS. This posting addresses the first proposed change.

My first-blush take on the first idea is it is potentially quite pernicious, as it will put pressure on law schools to curtail part-time (especially evening) programs’ focus on older students whose life and work experience may offset any deficits on the more standard admissions credentials (i.e., LSAT scores and GPA). This is especially true with regard to LSAT scores. I freely admit that I don’t have empirical evidence to back this up, but I’ve got to believe that, all other things being equal, someone who’s been out of school for 10, 20 or 30 years is simply not going to do as well on a racehorse multiple choice test as someone fresh out of college. If those students are going to start counting for U.S. News ranking purposes admissions committees are going to start giving those students less of a break on that criterion, even if their post-college accomplishments give all kinds of reasons to expect the applicant to succeed in law school. The same goes for GPA. If a 40 year-old applicant had only mediocre performance in college but has since excelled in whatever she’s done I would think that logically a 20 year-old GPA shouldn’t count for much. The proposed change in U.S. News‘s methodology will put pressure on that common-sense policy as well.

This change could also cause some other perverse effects. Presumably many law schools’ business models assume the continued existence of a part-time program — for example, if their facilities simply can’t handle siginficant increases in full-time enrollment. If those part-time programs start to be filled by students with higher conventional credentials it will probably be the case that those students will be more likely to be recent college grads without major career or life commitments. Thus, a school’s part-time and full-time programs will start to be filled by the same demographic. This may well cause tension. Full-time 24 year-old students who don’t work will complain about part time 24 year-old students who don’t work since those part time students will have a lot more time to study. (I confronted that complaint more than once in my stint as associate dean.) If they end up in the same classes (and there will be more pressure for this, too, since, by hypothesis, the part-time students will not have any particular place to be during the day), does that suggest that they should be graded on different curves even in the same class? This problem already exists to some degree. But usually it’s full-time day students who take evening classes (specialty classes often taught by adjuncts), rather than part-time evening students taking day classes. So in some sense under the current scheme any unfairness to day students is the product of their own decision to take an evening class. (And again, currently those evening students often have lots of commitments, a fact that mitigates any complaint about an uneven playing field.) But an evening division filled with 24 year-olds will lead to a lot of day classes being filled with evening students who have significantly lighter loads than their day-division peers.

These evening students may suffer harms of their own. Currently it’s easy for most evening students to explain to employers why they’re part-time students. If U.S. News changes its methodology and law schools change their admissions criteria in response then part-time students will have more explaining to do as to why they’re not finishing in three years. In general, the change may lead employers to start seeing part-time programs not as programs designed to accommodate older students’ scheduling needs but as second-class programs catering the same demographic as full-time programs, but enrolling less-desirable members of that demographic.

These latter effects are speculative, of course. But it does seem clear that older, non-traditional students will take an admissions hit if this change goes into effect. And that would really be too bad. Part-time programs face a lot of challenges, about which I have blogged before. But they play an important, and maybe underappreciated, role in making a legal education more accessible to those who otherwise wouldn’t be able to obtain one. It would be a shame if yet another hurdle would be placed in their path by a change in how U.S. News does its already highly questionable rankings.

Posted by Bill Araiza on June 27, 2008 at 02:25 PM

Comments

I have just a few thoughts, mainly in response to Ruth’s post (apologies for the delay since she posted them):

1. I certainly don’t think the less of older evening students who come to law school with life experience. Indeed, my own experience teaching those students is that they bring a lot to the profession, exactly because they’ve done something other than sit at a desk and take tests all their lives.

2. However, I do believe (with the caveats I state below) that on average part-time students have lower LSAT scores when compared with their full-time peers at the same school. This was an anecdotal understanding when I posted my blog entry, and to give it a quick check before posting this response I looked at ABA statistics from last year, available here: http://www.abanet.org/legaled/statistics/charts/OG%20Right%20Page%202008.xls. Obviously I’m not doing anything scientifically rigorous, but a quick perusal of those numbers supports my initial sense. The vast majority of schools with both FT and PT programs showed higher LSATs for their FT programs, at all percentile levels (75, 50 and 25). There are exceptions, and maybe last year was an aberration (I’d be curious if anyone knows that — the information is easy enough to get from the ABA), and, crucially, we don’t know how many students in PT programs are in fact older students, but at least last year’s data supports my impression, and that of other profs (like Brian Leiter — http://leiterlawschool.typepad.com/leiter/2008/06/fiddling-while.html) who have a similar concern about the proposed change in the US News ranking methodology. The differences for a lot of schools are small, but they’re averages across entire entering classes, and are replicated across most law schools that have two divisions. And small differences matter in terms of where one ranks coming into law school — for example, the difference between FT programs’ 75th and 25th percentile rankings appear, from a rough eyeballing, to average in the 4-6 point range. So an LSAT score difference of, say, two points, is not insignificant in terms of whether one is toward the higher or lower end of the entering class in terms of LSAT scores.

3. Now, one thing I don’t know is how many PT division students are in fact “traditional evening” students — i.e., older students with major career experiences and current. I’ve heard different claims about this, both anecdotally from students and in terms of studies I have heard of. I agree that that’s a real potential confounding factor in evaluating the test performances of younger students and “traditional evening” students.

4. Still, I would think that students who have continuously taken tests for years just prior to taking the LSAT are advantaged compared to those who haven’t taken one recently, or who have only recently taken a prep course (obviously there will always be exceptions like Ruth and Mark). Again I’m no expert but it seems that being in a mindset of taking tests – especially multiple choice tests – will make you more adept at the task, all other things being equal (which of course they never are – lots of other factors also go into test performance). My students seem to believe this, too; every semester a number of them come to me asking for a recommendation for a study aid in Con Law that focuses on multiple choice questions (which is part of how I test). Those students seem to think that practicing multiple choice questions helps them. If they’re correct then practicing for years and years just prior to the LSAT would presumably help too.

5. Ultimately, I still think that the proposed US News change will hurt traditional evening students. At the very least, those students are comparatively advantaged relative to their younger applicant-competitors when non-LSAT and GPA criteria are taken into account, given those applicants’ career and life experiences. To the extent the profession benefits from those students – and I think it does – it’s unfortunate that those criteria will probably be deemphasized as admissions committees focus even more on LSAT and GPA.

Posted by: Bill Araiza | Jul 4, 2008 12:12:53 PM

I took the LSAT 13 years out of school and got a very high score (99+ percentile). The SAT and other standardized tests have been around for a very long time, and we older students grew up taking them. The LSAT is not a different animal, and I don’t think being out of school for more than a decade hurt my score at all.

Posted by: mark | Jun 30, 2008 10:26:52 AM

I have no particular thoughts about the US News ranking system, but a brief comment on Prof. Araiza’s presumption that older prospective law students have lower LSAT scores that those fresh out of college. I mean no disrespect, but as a former older law student (and a current older BigLaw litigation associate), I’m growing increasingly frustrated/annoyed at this profession’s rather patronizing attitude towards those who did something else before seeing the light of the law, and the various presumptions about, inter alia, our ability to measure up to our junior colleagues.

The LSAT is an exam that people train for. How well you do, once trained, will depend on your native ability on standardized tests. Neither of these factors is a function of age.

I took the LSAT 15 years out of undergrad and scored in the 99th percentile. I know others similarly situated who scored, well, similarly.

There’s a lot of misinformation about older “young” lawyers out there, misinformation that complicates our careers immeasurably. Please don’t add to it.

RES

Posted by: Ruth | Jun 29, 2008 6:54:36 AM

Cardozo Law Professor Marci Hamilton–author of God vs. the Gavel: Religion and the Rule of Law (Cambridge U. Press 2005)–has a new book. In Justice Denied: What America Must Do to Protect Its Children (Cambridge U. Press 2008), Hamilton argues forcefully that statutes of limitation for child sexual abuse should be abolished. Such a move would serve, she suggests, four policy goals. First, it would place the interests of childhood sexual abuse survivors above the legal rights of offenders. Second, it would help to identify sexual predators. Third, it would facilitate the identification of other survivors of the same predator once a single survivor has come forward. Fourth, it would discourage insitutions from hiding sexual abuse. The abolition of statues of limitation in the context of clergy sexual abuse has been a hotly contested issue in state legislatures throughout the country. Hamilton’s book is timely and a must read for those interested in this issue.

Posted by Tim Lytton on June 26, 2008 at 10:36 PM

» Statute of Limitations for Child Sex Abuse from Sex Crimes Marci Hamilton continues her support of removing the statute of limitations for child sex abuse cases in her new book Justice Denied: What America Must Do to Protect Its Children. Tim Lytton at Prawfsblawg explains Hamilton’s argument:Hamilton argues f… [Read More]

Tracked on Jul 2, 2008 8:22:48 PM

Comments

Fifth. It would promote lawyer rent seeking interest. Sixth. It would generate false claims against a competing source of authority, the Church, to central government, a wholly owned subsidiary of the criminal cult enterprise that is the lawyer profession. Seventh. It permits the smooth contest of fairy tales that is a trial, this time without the hassle of valid memories.

Posted by: Supremacy Claus | Jun 27, 2008 6:34:37 PM

More: And go he should, if he were the Devil himself, until he broke the law! Roper: So, now you give the Devil the benefit of law! More: Yes! What would you do? Cut a great road through the law to get after the Devil? Roper: Yes, I’d cut down every law in England to do that! More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down (and you’re just the man to do it!), do you really think you could stand upright in the winds that would blow then?

Yes, I’d give the Devil benefit of law, for my own safety’s sake!

Posted by: Jonathan | Jun 27, 2008 8:43:24 AM