Author: paulhorwitz

Since, insofar as I post here, I so often indicate or directly state my disagreement with Josh Blackman, allow me to make a point of noting an area of common ground: As a general matter, legal academics’ Substack pages, at least insofar as they’re about law, should be entirely free. At the VC blog, Blackman writes:

At some level, it irks me that law professor[s] charge people for their work. Our job is to diffuse information to the world. Law professors are fortunate that law reviews publish their articles online without fee. In other disciplines, peer reviewed journals are extremely expensive to access. From time-to-time, professors publish Op-Eds in major outlets like the New York Times or Wall Street Journal. On someone else’s platform, the paywall cannot be avoided. But why should a professor erect his own paywall?

I agree. It is irksome. I would add that although this may be true for all academics, it is especially true for American law professors. We are fortunate not just in that most of what we publish is made available without fee, but also because American law professors are generously paid, if not greatly overpaid.* There’s nothing shocking about wanting more money on top of the salary we already get to write and publish in fulfillment of our obligations as scholars. (Or, as in the case of writings on Substack, podcasts, etc., our service obligations, since these writings rightly do not count as scholarship.) But we certainly don’t need more money on top of that. (I thus disagree with Josh when he writes in a subsequent post that “virtually all academics who forego careers in legal practice have to find opportunities for outside income.” They want to find those opportunities; they don’t have to find them. Indeed, perhaps law schools should impose stricter limits on those opportunities.) As a matter of what I would call institutional and professional morality, we should not ask for it, especially for commentary on or around the law. We’re already paid, and paid well, for doing these things.

Of course there are writings for which law professors receive payment. But most of those examples are either a matter of well-worn custom, or reflect genuine expenses on our part or that of a third party, such as the publisher of an academic book, or are out of our hands–you can refuse the payment a newspaper offers you for an op-ed, but that won’t eliminate the paywall it puts in place for that op-ed–or some combination of the three. As it is, some of those exceptional instances are already, and rightly, debated, as the ongoing effort to come up with low- or no-cost alternatives to casebooks suggests. We should not be adding to the list of exceptions.

A strong default allows for the possibility of cases in which it makes sense to require a fee (which should be as small as possible–enough to serve a legitimate purpose and no larger). All I would require is excellent justification, publicly and clearly stated, along with a commitment to regularly and publicly revisit that policy. Derek Muller offered one such justification on his Law School Docket Substack page. Without evaluating that justification, one can at least commend Derek both for his default position and for attempting to justify the shift loudly and clearly. Up to a point, I could also imagine making an exception for cases in which the academic Substacker incurs genuine costs, those costs are incurred for meaningful things relating to original reporting, such as FOIA requests, and the academic’s institution can’t or won’t reimburse them. I wouldn’t include unnecessary costs, such as the money involved in adding more bells and whistles to a podcast. Obviously, charging simply because the creator is putting lots of time into Substacking would not count as a serious justification for paywalling material.

Both of these views about what oughtn’t count as sufficient justification for charging a fee may, I acknowledge, be influenced by my priors: that podcasts are junk; that anything advertised to subscribers as a “BREAKING” podcast is junk on steroids; that most Substacks, podcasts, and similar outlets consist of commentary, most commentary is junk, and none of it is a substitute for actual journalism; that we live in a grifter culture (headed by a stunningly vulgar and corrupt grifter president–the gift-linked article is a must-read for all lawyers and, indeed, all citizens); that the addiction to side hustles is an important part of that grifter culture; that the fracturing of media and the so-called democratization of journalism and public discourse was a terrible mistake; that subscribers pose more of a threat to genuine independence of mind than advertisers; that most of what academics, with their love of self-serving bureaucratic euphemism, call “public engagement” is actually mere self-promotion or mutual backscratching; and that, as with journalism, the academy’s fascination with and migration to social media has been a massive and possibly a fatal error. I’m mindful that these priors may influence my position on what counts as a good or bad reason for charging for content, although the fact that I’m right about all of this balances things out somewhat.

The possible exceptions notwithstanding, the strong default should be that all of this stuff is free and readily accessible, preferably without so much as the requirement that one go through a subscription process even for free content. I don’t subscribe to any academic Substack that charges a fee, at least beyond subscribing for the public material only, and I encourage others to do likewise and to publicly criticize academics–again, especially legal academics–who do charge for their content. Not to put too fine a point on it: Legal academics who profit off of fee-based enterprises of this sort without excellent, clearly stated reasons are acting immorally and to the detriment of the academic enterprise.

I’m happy to agree with Josh on this and equally happy to say so.**

* This is a problem that could be mitigated somewhat if American universities drew a structural division between law as an academic discipline that confers undergraduate and graduate degrees, and law as a professional educational program whose diplomas are part of the licensure requirements for the profession, and whose instructors are either adjuncts still in active practice or have been selected mostly for having serious practice credentials. This would enable the latter category of school to hire and teach more effectively; make it easier for universities to pay the former category of academics salaries closer to those in the arts and sciences, reflecting both the discipline’s proper location within the university and the likely drop in demand for such a program of study; minimize the embarrassments attendant upon the endless failed effort to treat professional schools as a serious academic enterprise; and, perhaps combined with a much stricter limit on moonlighting for faculty within academic departments of law, make legal academia less attractive for those without a genuine vocation. It might also lead to a more just salary structure, in which clinical and legal research and writing faculty, who would remain at the professional schools, would be paid salaries closer to the amount that we currently and inexplicably hand out to teachers of subjects like constitutional law. The current approach, in which they make less, is somewhat akin to an engineering school paying minimum wage to the key engineering faculty and top dollar to the theoretical physicists.

** While I’m at it: Blackman is also right that the Supreme Court should cancel its summer recess and hear and decide cases year-round–and, perhaps most important, issue opinions year-round on a rolling basis; the late June pileup is unseemly, unhelpful to the public and the profession, and unnecessary. He is wrong, however, in recommending that the Justices hold press conferences. I’m not sure they should even give speeches. Judges who have nothing especially interesting to say should say nothing at all, and judges generally have nothing especially interesting to say. No doubt we agree on much else. It’s hard to know, given that, at least at the Volokh blog, in the last 18 months or so he has largely given up any public commentary on the actions of the most constitutionally active, significant, and newsworthy branch of the federal government.

The American Association of University Professors today in a press release commemorated a great achievement: It has gone 110 years without making a single national political endorsement.

“Great” does not mean “hard.” It’s easy enough for a membership association whose members hold varying views not only about whom to endorse but about the wisdom of making endorsements at all, and whose strength and effectiveness ultimately depends on the public’s (diminishing) trust in universities, to simply not make political endorsements. But making that commitment again and again over 110 years, despite all the temptations and vain hopes of power-brokering that may have afflicted one now-forgotten leader or another over that time, is impressive. It suggests that the AAUP has always been aware that, apart from every other possible objection, it simply lacks the political and financial capital to usefully make endorsements; to make such a move would simply squander goodwill in exchange for, at best, nothing. The 110-year record is a testament to common sense. It demonstrates the AAUP’s understanding that any power it has lies in its link to universities and to the university’s ideal of the disinterested pursuit of truth. Like Supergirl under a red sun, its power fades the further away it moves from that ideal; and, like Supergirl‘s critical reception and box office receipts, it knows that it’s always one wrong move away from ignominy and irrelevance.

The AAUP, under the leadership of cyber-based ethnographer Todd Wolfson, is to be commended for recognizing and publicly marking this achievement.*

* (To be sure, the occasion for marking the 110 years of common sense was a press release breathlessly announcing that it was making its “first-ever national electoral endorsement.” Also to be sure, its choice for this endorsement, Michigan senatorial primary candidate Abdul El-Sayed, who will gain nothing from the endorsement and in return will give the AAUP nothing it would not have gotten anyway, is controversial even in his own party, hardly a shoo-in in his own state, and would by no means command strong support even among the mine run of mostly liberal American academics. This suggests that Wolfson has been more unwise and much more susceptible to the temptation of the illusion of power and influence than his predecessors. More importantly, it underlines and doubles down on the ongoing mission of the AAUP’s current leadership to stake out ideological and policy positions for their own sake and not for the sake of their members and their views. It’s an odd move for a membership association, but I’m not sure the current leadership cares all that much about that. Perhaps they figure that come the revolution, we’ll all be AAUP members. Still, at least they marked the anniversary, even if they marked it with a tombstone.)

He can be a little promiscuous with his labels, but I think in this case that Larry Solum supplies le mot juste right out of the gate when he writes, with emphasis added, “Andrew M. Perlman (Suffolk University Law School) has posted Generative AI and the Future of Legal Scholarship (June 2026 Edition) on SSRN.” What else could you call it? What other verb would work here?

The article is a new version, produced by Claude from a prompt last month, of a similar effort from December 2024. The new version is seemingly much more impressive an effort. As Solum observes, “The distance between the two editions, eighteen months apart, is itself the most striking datum in the piece.”

But to whom does the credit go, exactly? And to the extent that the article–or, rather, as Solum notes, the fact of the article–provokes discussion, discussion with whom? I discussed another AI-generated article by Perlman in this jot at Jotwell. I noted there that “Perlman’s opening note discloses that although he ‘conceived of the substance of nearly all the points’ in his [piece], ‘Claude was exceptionally helpful in drafting the text.’ (Perlman adds that he did ‘draft[ ] the footnotes and citations largely the ‘old-fashioned way.'” I added, “That seems rather a case of the tail assigning the mindless scutwork to the dog.” In the case of the new article, it’s all dog and no tail: Claude did the footnotes too. Perlman’s agency is limited to the one initial prompt and a little spot-checking of the footnotes.

That’s the point, of course. As Perlman writes in a preface, “The goal was to assess the extent to which generative AI’s ability to produce high quality legal scholarship has advanced since I last conducted a similar experiment in late 2024.” Strikingly, while the initial version of the paper included a Perlmanian epilogue providing his “own reflections on the resulting draft,” the new version comes sans human reflections.

Nor is the prompt–and credit is due to Perlman for providing it–especially thesis-driven. It does not “conceive” any substantive points. It does not provide an original idea or insight and then, with some sophistication or insight into the topic, seek machine-driven elaboration. Indeed, it does not provide an idea or insight of any kind. Here it is:

You are going to write a cutting-edge law review article on the future of legal scholarship in an AI world. It should contain a groundbreaking and persuasive theory that would be attractive to the most selective law reviews, and it should be written in the style and at the level of sophistication, depth and breadth that would be attractive to such law reviews. Write the article fully footnoted and make sure the citations are Bluebooked and carefully vetted to ensure accuracy. I want the argument to focus on a truly original conception of what scholarship will look like in the future, not merely finding new ways to authenticate or attest to existing methods. Make sure the footnotes are densely populated and cited at the frequency and level of sophistication of a top-tier submission.

This is the equivalent of a “chef” telling a robot kitchen assistant, “Give me one steak, extra sizzle.” You marvel at the result. You think about the food in the original Star Trek. But you don’t compliment the chef. Even the average use of the Monkey’s Paw shows more care and originality. You take your sweet time designing those wishes, if you’re wise, or you’re liable to end up with a dry turkey sandwich and a super-creepy relationship. Perlman’s prompt here is closer to telling the Monkey’s Paw, “I wish for you to do something, anything, to prove that Monkey’s Paws are cool.”

None of this can be taken as an insult to Perlman, obviously. He barely enters into it, really. His contribution here was running the prompt and having the moxie to post the article. The article he generated might provoke discussion; but it doesn’t provoke, require, or call for discussion with Perlman. As for institutional matters, Perlman is already tenured, so none of those questions arise. (They will arise, and already are, for others.) He is, in fact, a dean–who just so happens to be pushing hard to brand Suffolk as a top AI-friendly school. In that sense, the fact of the article and the inevitable attention it will draw is all to the good, institutionally speaking–at least in the short term.

And the article itself? It’s fine. Its musings about legal scholarship, metrics, and so forth? They’re provocative, as their master bade his tool to design them to be. The piece shows a facial sophistication, depth, and breadth that is likely to appeal to a group of highly selective 25-year-olds, which is to say that its voice maintains just the right combination of abstruseness, love of jargon, self-dramatization, and fundamental blandness. But the subject of the article’s text itself is mostly irrelevant. It could have been about contracts or noise abatement. Its value is entirely artifactual. It’s ultimately an article about being an article. It’s nice that its conclusion–its last sentence reads, “The scholar of the future is the master of the model”–comports with the implications of its existence as an article. But that is more or less coincidental; we would have drawn the same conclusion from the existence of an article on noise abatement.

The last paragraph of the article–perhaps we should call it “the output”–somewhat amusingly references Robert Cover: “The nomos, Cover taught, is held in place by commitment.” The output briefly discusses that commitment. But the article qua artifact stands outside that commitment, or any commitment. As such, it does not and ultimately cannot tell us much about the essential nature of that commitment–about the need for or existence of a community of writers; about the equivalent or greater importance of a community of readers, whether scholarly or professional or lay; or about the relevance or obsolescence of any of the related institutions, traditions, and hierarchies that govern them as a community.

It does suggest, at least by implication–and perhaps quite accurately–that if the scholar of the future is the master designer of “uptake delta”-maximizing models, we need very few of them. Suffolk, like most American law schools, has a fair number of research/doctrinal faculty and an even larger number of clinical, skills, and adjunct faculty. The article’s existence suggests that we should eliminate virtually all of the people in the first category (including someone like me). We should maintain and probably temporarily increase the number of people in the second category, winnowing their ranks only somewhat at first and then more dramatically as the number of lawyers and law students needed, at Suffolk and elsewhere, drops. The article itself demonstrates that you do not need many model-masters to design the models, and that their mastery of the subjects they are directing the models to discuss need not be especially deep. A small cadre of model designer/question generators–a sort of remnant Delphic priesthood making sure the oracle doesn’t get unplugged–should suffice. It also at least suggests that the audience for the output, which in turn will be assisted in its reception of that output by its own well-designed models, need not be terribly large or terribly learned.

I don’t mean this as a criticism, and it didn’t take the advent of AI to make me think that American law schools should have fewer doctrinal/research faculty and should pay them much less. But the third iteration of this article might include a prompt to consider whether there’s any irony, or sheer crassness, about paying lip service to the idea of a nomos while simultaneously hollowing out, depopulating, and bulldozing it.

Eugene Volokh passes along the following notice:

Second Annual Aspiring Free Speech Scholars Workshop
jointly sponsored by the Sandra Day O’Connor College of Law (ASU)
and the Hoover Institution (Stanford University)

Because of a technical problem, any submissions before June 4, 2026 were lost; please resubmit (or submit for the first time) at the new URL listed below, https://tinyurl.com/aspiring-free-speech-scholars

Are you a law student, judicial law clerk, lawyer, or beginning academic hoping to publish a journal article on free speech law? Would you like the opportunity to get advice about your draft from leading free speech scholars?

If so, send us your draft by Sunday, August 16, 2026. (This should still be a draft article, not an article that’s already published or expected to be published within six months.) We plan to select the submissions that we think are particularly promising, and invite their authors to a workshop where they can present their papers and get helpful feedback on them. The workshop will be Saturday, October 24, 2026 (with dinner the night before) at the Sandra Day O’Connor College of Law in Phoenix. We will inform the selected authors by Tuesday, September 8, 2026. 

We have funds to pay for transportation and lodging for the selected authors’ trips. Eligibility is limited to people who have so far published three or fewer law-related journal articles. 

We also plan to officially recognize zero to three of the top articles among those we review. If the authors wish, they can also have their articles reviewed for publication in the Journal of Free Speech Law (http://JournalOfFreeSpeechLaw.org), presumably after they revise the articles in light of the workshop feedback.

If you’re interested, please submit your draft at http://tinyurl.com/aspiring-free-speech-scholars (Google logon required). Please single-space, and format the article nicely, so we can more easily read it.

Please do not include your name or law school affiliation in the document or document filename, and please do not include an author’s note thanking your advisors and others. Please make your filename be the title of your article (or some recognizable subset of the article title). We want to review the article drafts without knowing the authors’ identities.

If you have questions, please check http://tinyurl.com/aspiring-free-speech-faq; if your question isn’t answered there, please e-mail volokh@stanford.edu.

Many thanks to the Stanton Foundation for its generous support.

* * *

James Weinstein, Dan Cracchiolo Chair in Constitutional Law and Professor of Law, Sandra Day O’Connor College of Law, Arizona State University

Eugene Volokh, Thomas M. Siebel Senior Fellow, Hoover Institution (Stanford University), and Gary T. Schwartz Distinguished Professor of Law Emeritus, UCLA School of Law

Right off the bat, let me note my respect for the fact that Howard’s post below offers what kids today (at least, “today” according to Professorial Adjusted Time) call “props” to Lonely Island. After that, I have one major difficulty with the post.

I admit that I’m not sure what “free speech culture” is. I assume that, like “cancel culture,” “the radical left,” “and Christian nationalism,” it is a term that 1) at its core describes an actually existing view, group, or phenomenon, but 2) is subject to capacious definition and a wildly varying membership (it’s a “crowd,” as Howard says), and 3) inevitably becomes something of a mythical antagonist, an opponent in an endless act of jouska, which holds a host of foolish assumed views and takes a variety of dangerous predicted actions, and thus serves as an ideal foil. But I can’t say for sure. So I will refrain from weighing in on what is good or bad about “free speech culture” in general. I would imagine that, if it’s a culture, it is probably both good and bad but, above all, is indefinite, internally contested, and dynamic, not fixed, uniform, and frozen.

Even so, I think I can say with some assurance that the primary issue here is not substantive, but literary. Howard misunderstands the genre of the New York Times story he complains about (with the admittedly “snark[y]” but, even so, odd locution that the paper “required” its reporters to write it). That misapprehension colors all of his reactions to the story. Howard reads it as a “breathless” entry in the heroic genre, in which Jonathan Haidt plays the free speech hero and the students the dangerous villains.

This seems an obvious misreading. The headline I see in my version of the story is “N.Y.U. Students Object to Speaker Who Calls Their Generation Coddled.” I acknowledge that media publications these days engage in the odious practice of A/B-testing their headlines, so maybe Howard got a different one. But this version, at least, signals the literary genre to the reader right from the start. The story isn’t heroic; it’s comic. The writers aren’t even especially subtle about it. I mean, who but a comic writer would give the character of “NYU spokesman” the name of “Wiley Norvell?” Preston Sturges would have cast Rudy Vallee or Porter Hall in the part without a second’s thought. And who but a Sturgesesian comic figure named Wiley Norvell would describe Haidt as “one of the most consequential scholars of the 21st century?” That joke writes itself, on multiple levels.

Every character in the Times story plays the Fool, and the reporter-narrators, serving their own part within the conventions of the genre, sprinkle the piece with ironic grace notes. The students aren’t treated as especially threatening or villainous. They are portrayed as comic figures, simultaneously sweet, hot and bothered, earnest, and ridiculous. I thought that was apparent from the moment in the story when the students were first introduced as “deeply unsettle[d],” and then described as having to go research “Dr. Haidt’s writing and speeches” to decide why they’re deeply unsettled. That is classic comic structure: “This is an outrage!–and if you give me time to look into it, I’ll tell you why it’s an outrage!” It may not be the best Lubitsch I’ve ever heard. But it’s Lubitsch, all right.

The bit where the students insist in sententious tones on a commencement speaker who “more accurately reflect[s] the values and diversity of its graduates,” and then throw out Taylor Swift and David Boies as acceptable examples? Comedy. I mean, clearly. It’s actually pretty good comedy, in an acid-tipped, Billy Wilder-ish sort of vein. It provides a solid comic beat, but with an ironic sting in its tail: The billionaire influencer who conned the rubes into buying all of her albums twice, and the filthy rich lawyer who deployed high-tech PIs on behalf of Harvey Weinstein, are, in fact, reflective of the values and diversity of the typical NYU graduating class.

Holding a graduation ceremony at Yankee Stadium? Comedy. So, if you read it with the right cadence and throw in a little out-of-breath moment at the end, is this laundry-list passage from the letter of complaint: “Many students have reported feelings of disappointment, disgust, unenthusiasm, defeat, and embarrassment.” I could easily imagine Greta Gerwig delivering that line in her only tolerable movie, Whit Stillman’s Damsels in Distress.

That Haidt figures as a comic figure here is both self-evident–no one who has given multiple TED talks could ever be anything but comic–and cued by the reporters, who repeatedly refer to him as “Dr. Haidt.” A professor who is called “Doctor” is automatically a figure of ridicule, straight out of every academic satire. Being saddled by the Wiley Norvell character with the “most consequential scholar” label likewise marks Haidt as a comic target, inviting the reader to view both Norvell and the person he is describing as pompous and puffed up. That portrayal is driven home by Haidt’s use of the phrase “deeply humbled,” a classic contronym.

Worth noting, and wholly consistent with good comic writing, is that while the Times story ridicules everyone (except, of course, the authors themselves), it’s also not terribly unsympathetic to any of them. It recognizes that the seeming antagonists, the students and Haidt, are quickly overshadowed. They ultimately have a bit part in their own controversy. They start the ball rolling. But just about everything after that is all about the grown-ups: the fighting, the back-and-forth about Haidt, the obvious institutional nervousness and ass-covering, and, above all, the excuse it gives every adult with a keyboard–the Times reporters, the online hordes and Substackers, Ken White, Howard, and of course me–to exploit the whole thing, to hang our own preoccupations on it and ride it to glory. The underlying issues exist and are important. (To be more precise, they are every bit as important as college commencement addresses are, which I think is rather a matter of some doubt.) But the story itself is not so much about a free speech controversy as it is about how much everyone enjoys a good free speech controversy.

In the end, the story, rather brilliantly, spotlights two figures, one sympathetically and one with, at best, jaded admiration. NYU itself takes on the latter role. Picking Haidt as the commencement speaker is, in this place and time, a clever, strategic, and deeply cynical move. The administration surely watched the mishegoss at Michigan. And it’s surely constantly aware that it’s in the crosshairs of a regime whose motto is to let no opportunity for selective and excessive punishment go to waste. It must see the choice of Haidt–more or less liberal personally, describes himself as a centrist, codes positively with conservatives, currently focused on a no-devices campaign that scores high across the political and cultural map–as a masterstroke. He’s bold, but banal. He’s got something important and inoffensive to say. And he’s unlikely to foul his own nest. Academics, like golf caddies, spend a lot of time watching the action from just off to the side. We can surely offer up a measure of respect for NYU’s effort to navigate the ball between the sand trap on one side and the water trap on the other and land it squarely on the green. It turns out that the university would have been better off just agreeing to meet Dua Lipa’s fee. Still: one can appreciate the artistry of the attempt.

But the story reserves the zinger, the cherry on top, the Lubitsch touch–that NYU is making student speakers record their speeches in advance, so that it can put them on a screen during a commencement headlined by The No-Screens Guy–for a student. Again I say: comedy. If Howard had read the story according to the correct genre, I think he might have derived a somewhat different message from it. He would certainly have found it funnier.

(As an aside, I found Ken White’s quote odd. Students are, indeed, students. Their role is, in fact, to receive wisdom, subject to the obvious qualifications that professors are only wiser by virtue of their years, not because they are professors, and that a good education provides multiple structured opportunities to ask questions and raise disagreements. Their role in the institutional schema is not that of mere consumers or potted plants. But neither is it one of coequals. Their role is a subordinate one–and quite rightly so. That doesn’t mean they must always shut up and listen; it does, however, mean they must sometimes shut up and listen.)

A recent Washington Post story notes that Justice Gorsuch has a new children’s book on the Declaration of Independence, and that it joins a slew of children’s books published by Justice Sotomayor and one by Justice Jackson. Of course these are just part of the library of recent books that a number of the justices, including both Democratic and Republican appointees, have at least nominally authored and very profitably published.

I confess to a particular fascination with Justice Alito’s forthcoming book. Its subtitle and promo copy promises readers not a mere inspiring life story (bad as that is), nor an appropriately narrow focus on his office, but his “View[s]” on “Our Country”–on “faith, the nature of law, and American culture.” It seems to me punishment enough that we are already made to know the justices’ views on life, the universe, and everything when there is at least an ostensible official justification for it. That they should start inflicting their opinions on us with no good reason or any particular qualifications seems more like cruelty. It’s the kind of wanton behavior which, in the old days, constituted both the definition of the crime itself and the customary custodial sentence for committing it: a twice-weekly newspaper column. But tastes vary. Dozens of people eagerly followed the thoughts of Abe Rosenthal, after all.

Other modern judges and justices have navigated the world of books in different ways. I always found Rehnquist’s approach–to apply his dry wit and curiosity to histories of what he thought of as important but decidedly un-current Supreme Court issues–highly creditable. It wasn’t an alleged effort to “bring civic education” to anyone; it was more of a gentleman’s hobby, like painting or taking a mistress. I am likewise inclined to view as more than acceptable Justice Scalia’s extrajudicial writing, which was about current legal issues but focused on legal methodology rather than directly on matters of political or cultural controversy. As with Judge Posner’s writing, although to a far lesser degree, I’m also inclined to excuse Scalia’s books, despite my general reservations about extrajudicial writing, because they were interesting and readable, just as I tended to excuse Justice Breyer’s books because they were neither. What they all have in common, to their credit, is that they were narrower in their focus and stuck with topics within the limited range of their expertise. Above all, they were commendable because they could not fairly have been said to be aimed at a general public readership–A Matter for Interpretation was not the kind of thing you could hawk on the Today show–or to carry much hope for personal enrichment. Not so today.

The modern extrajudicial output of the Supreme Court strikes me as reviving an altogether different model. The model that Alito, Sotomayor, and the others are following reminds me less of Scalia and Rehnquist and much more of William O. Douglas.

Like the current crop of memoirs and unlike Scalia and Rehnquist’s books, Douglas “in his autobiographical writings and elsewhere presented his life to the public as exemplary.” Like the current writing justices, Douglas found the generous salary of a Supreme Court justice–just shy of $300,000 for associate justices, somewhere between four and five times the median income, although historical comparison is difficult because modern justices are more likely to have spouses who make substantial bank themselves–insufficient. He thus landed on a “financial treadmill” in which he “wrote book after book.” And Douglas, in his books as elsewhere, certainly was not shy about sharing his “Views” on life, culture, and politics.

In his classic review of a biography of Douglas, Richard Posner relates one problem with Douglas’s memoirs: their endless self-romanticization was accompanied by flagrant dishonesty and inaccuracy. I don’t think the current crop of memoirs lacks for self-romanticization. While I strongly doubt they are as dishonest, we should acknowledge that this is merely an assumption. Any final word awaits the fruits of careful investigation and the judgment of history. Lots of perfectly respectable people turn out to be minor or major fabulists. We should wait a couple of decades before concluding with any confidence that today’s crop of memoirs, book-length op-eds, and bagatelles for the toddler set is in fact either more truthful or, more generally, worthier than Go East, Young Man or Beyond the High Himalayas. (I can say already that Beyond the High Himalayas is worthier than any children’s book written, or “written,” by any justice. Most celebrity children’s books are gift-shop junk. The justices have no special expertise in writing for children. And given the level of generality at which a children’s book must be pitched, whatever subject-matter expertise they can bring to something like the Declaration of Independence or how to “shine” is irrelevant.) It is more likely that they will all be just as well-remembered as North From Malaya in the fullness of time. But it is passing strange that we live in a time of rampant, bipartisan William O. Douglas revivalism on the Supreme Court.

I have some thoughts on the leak discussions to add to Gerard’s brief and sober comment below. (My thoughts are just as sober–more sober than speculations about finding a hook for a bar complaint against a reporter, certainly–but just possibly not as brief.) In the meantime, something else, perhaps not so removed from that subject after all. At Jotwell, which remains the foremost blog for those seeking information about new and forthcoming legal scholarship, I have this Constitutional Law Section piece up today. It’s principally a discussion of Woodrow Hartzog and Jessica Silbey’s forthcoming article How AI Destroys Institutions. It also touches on a response to that article by (in a manner of speaking) Dean Andrew Perlman of Suffolk.

As I write at greater length, what’s especially valuable about Hartzog and Silbey’s piece is that its focus is not on the usual, often outdated claims about hallucinations and errors. Nor, for the most part, does it rely on faith-based assertions about the unique nature of human judgment and creativity. Instead, the authors focus on the features of civil society institutions–“the invisible but essential backbone of social life”–that they believe AI threatens. Institutions are purpose-driven. But that’s not the same thing as being crudely and immediately output-driven, with university A generating x number of educated students and y number of articles and patents, and church B generating z number of saved souls. They are social and processual things, “bundles of normative commitments and conventions” involving “assigned roles within a hierarchy of authority.” (It’s perhaps an unfair over-generalization, but it’s nice to see an emphasis from, again broadly speaking, the left side of the legal academic literature on the valuable and essential nature of hierarchy. It can’t be overemphasized just how important it is to any vision of working toward a just and harmonious world that we retain not just the ability to, inter alia, tell students to knock it off or they’ll be suspended, news-side reporters that they have no more right to input on what’s published on the op-ed page than the ad staff does, and White House staffers that their mass anonymous letters about Gaza are grounds for instant dismissal whether their views are right or wrong, but the active commitment to doing so. )

Nor are both internal and external legitimacy and trust a matter of successful or efficient outputs either. Rather, to quote from the jot, “The transmission and gradual adaptation of ‘knowledge and practices across generations of people’ cultivates a sense of commitment for those within the institution, and a sense of legitimacy for those who benefit from them.” These are the elements of civil society institutions that Hartzog and Silbey worry may be corroded by AI. Whether one agrees with all of their article or not–and “Perlman’s” response offers some valuable, if possibly ultimately orthogonal, critical points–their decision to focus “less on how AI is remaking everything, and more on what AI is remaking—or killing” is commendable.

I argue in the jot that the article should be seen as a useful contribution to discussion of the “institutional crisis” I’m always banging on about: “Looking at the longer-term corrosion of our civic institutions from the inside, and the decline of trust in them from the outside, would give us a better sense of the ways in which AI both emerges from and responds to these changes. The flattening of hierarchies and lack of commitment to institutional roles and rules that Hartzog and Silbey see as a consequence of AI certainly preexists it.” What the paper “does not and perhaps cannot answer is whether, in simultaneously overemphasizing the ‘autonomy’ of atomized and isolated individuals and undermining the authority and autonomy of institutions themselves, AI is simply expressing a preexisting general will. On this view, AI isn’t a match helping a dangerous minority to ‘burn it all down.’ It’s an accelerant, poured over a house that’s already on fire, in a world full of arsonists.”

Is this really a “constitutional law” jot? The article never mentions the Constitution, after all. My answer is “hell, yes.” Civil society institutions are literally constitutive of our constitutional order, for one thing. For another, they are an essential part of the way we respond to and guard against constitutionally dangerous actions taken by governmental bodies. More broadly still, a society whose “citizens”–and it’s not clear that this is really the right label for such individuals–have, perhaps in a way that is aided or supercharged by AI, lost any interest in or capacity to envision commitment, submission, hierarchy, rules and norms, trust, tradition, and sociality is no longer clearly a constitutional society: “No Constitution can sustain a society that has lost any interest in the very concept of being constituted.” And I do think both that this view has become much more widespread in the past decade or so, and that the tendency is as visible from people inside institutions as it is from people outside them.

Read the whole jot here, if you like. And be sure to check out the pieces by Hartzog & Silbey and “Perlman.”  

…who, in addition to the honor of being the most reliably enjoyable poster on this venerable blog, has been named as a 2026 Guggenheim Fellow. As they say in Indiana, mazel tov!

There have been several interesting conversations about legal scholarship in the past couple of days. They started on blogs, but I understand they have also generated 280 characters at a time of what, given that format, must surely be rich, thoughtful discussion elsewhere. Taken together, they raise some interesting questions. Although most of the posts are about scholarship in general, some of them focus on scholarship and AI, and AI arguably figures as a complicating factor in all of them. I hope to get around to all of them, but rather than try to do it all in one gulp, let me start with just one of those posts.

It comes from Larry Solum, whose post Wednesday at the Legal Theory Blog castigated social-media commentary on recent birthright citizenship scholarship for exhibiting “a very uncharitable attitude towards scholarship with which the poster disagree[s].” He continued:

My view of the role of Legal Theory Blog is premised on the idea that scholarship ought to be viewed as a search for truth and that scholarly debate should be civil and charitable. Attempts to shame or silence scholarship are always problematic and rarely justified. Statements to the effect that the author of a piece is insincere without any evidence should be condemned and have no place in responsible scholarship. What should matter is what Jürgen  Habermas called “the unforced force of the better argument.”

I mostly want to focus on sincerity here, but let me say first that I’m not sure why attempts to “shame” scholarship are “always problematic and rarely justified.” Maybe Larry means that the attempts are problematic because they’re rarely justified. Scholars often overestimate the strength of their criticisms and/or the weakness of their adversaries’ views, and the error rate makes shaming problematic as a practice. I sympathize. But surely there is plenty of bad scholarship in any academic field–bad in intent, bad in design, bad in execution. The direct and indirect harms of bad scholarship are numerous. It enables error to burrow in; it muddies the waters and raises search costs; cumulatively, it devalues good and bad scholarship alike. Not least, because those who do bad scholarship “well” can end up in influential positions, it entrenches and encourages the same bad moves, especially but not exclusively by junior scholars. I would have thought, therefore, that shaming bad scholarship is often problematic but frequently justified. To take one of many possible examples, American law reviews cite plenty of work taken from other fields. Yet neither American journals nor American law professors universally run citations through Retraction Watch. I would think shaming is in order, both because this failure is literally shameful and because the shame might lend support to better individual and collective practices.

I sympathize, too, with Larry’s assertion that calling an author insincere “without any evidence” is wrong and irresponsible. Or at least I mostly sympathize with it. The problem with such accusations isn’t that they’re always wrong, and I don’t read Larry to suggest otherwise. It’s that they are thrown around too casually, given our lack of access to others’ minds.

Accusations of insincerity often rely on the fallacious proposition that one can arrive at a reliable conclusion about someone else’s motives by reasoning logically from a small number of facts and (contestable) premises–e.g., “It’s so sloppily done, or the author is so new to the discussion, that it must be insincere, conspiratorial, etc.” That sort of argument can be described as relying on “evidence.” But it’s weak evidence, and most of the real work in such an accusation is done by the questionable inferences, not the actual evidence itself. Confident accusations of insincerity often ignore mixed motives, and they ignore the reality that people are often imperfectly aware of their own motives. In practice, accusers are often cynical about the motives of their adversaries, but credulous or silent about their own motives or those of writers with whom they agree. This does not make the accuser’s charge of insincerity wrong, but it may affect the accuracy of the general picture of the debate and its participants.

One defense of accusations of insincerity is that they provide an important part of the context for understanding a debate–about scholarship, about politics, or what have you. On this view, if a prim insistence on “civility” demands the exclusion of such charges, then it is effectively legitimating and benefiting bad-faith actors and distorting reality. Against this, and even if one ignores the value of civility as such, is the possibility that the number of errors, faulty reasoning, and corrosive habits that one avoids by barring weakly evidenced charges of insincerity outweighs the epistemic value of permitting those accusations. Some bad actors will get away with their insincerity. But the gains outweigh the costs.

That’s the position I ultimately take and one that I try, with epic levels of imperfection, to apply. Nevertheless, after reading Larry’s post, I find myself perversely doubting this position. Larry confines himself to criticizing charges of insincerity made “without any evidence,” while leaving well-founded accusations of insincerity on the table. My sense is that most people, wherever they come out on the norm that should apply to speculative accusations of insincerity, would agree that criticizing insincere legal scholarship when one has strong evidence for that criticism is at least fine and perhaps obligatory. But despite my own general view, I have to wonder: Why should we care about insincerity at all? A charge of insincerity clearly carries weight in the world. If it didn’t, we wouldn’t bother to make it–or to insist that one not make it without strong evidence. But why should it matter?

Following Habermas, Larry argues, against allowing casual charges of insincerity, that all that matters is “the unforced force of the better argument.” If that’s so, why exactly should we care if an argument is made insincerely, even when there is strong evidence of this? Whether an argument is insincere is wholly distinct from the question whether it has been made shoddily, badly, illogically, without convincing evidence, and so on. Full many an honest and sincere actor has written scholarship that fails all those tests. And surely some number of rotten, corrupt, self-serving, office- or profit-seeking, cause- or ideology-driven, mercenary, and otherwise shitty individuals have written excellent articles for bad motives and without an ounce of sincerity–for fun, or politics, or profit, or tenure (which is the same thing). Whatever the writer’s motives or true beliefs, such an article has the unforced force of the better argument. The argument is not better or worse because its author happens to believe it.

The mercenary, dishonest, insincere writer of a good argument may have written herself one step close to damnation, and the pure-hearted writer of a flawed argument may have written herself one step closer to heaven. Given those high stakes, our concern for the souls of others, and the fact that scholarship and writing are–like everything else–a moral enterprise, we should take that seriously, and maybe we should say so more often. But if our ultimate lodestar is the unforced force of the better argument, shouldn’t we assent to the persuasive argument of the damned writer and reject the flawed argument of the saved writer, and read both arguments as if the truth and persuasion of the work are all that counts and authorial sincerity is irrelevant? If a persuasive article is prefaced with a frank statement from the author that she has written the article because its argument will undermine the government’s position in the birthright citizenship case, or because it will be good for her career, or out of simple perversity, and that nothing that follows should be understood to state her own view, why should that matter if our considered conclusion is that she has given the better argument?

I appreciate that by focusing on the one phrase quoted by Larry, I’m ignoring a lot of relevant background context from Habermas–including, to quote Michael Froomkin, a “good faith commitment to honest [and “nonstrategic[ ]”] debate.” Perhaps those missing ingredients, which I am too ignorant to do justice to here, supply the answer to my question. If they do, I would have thought that we should be more willing to police the requirements of honesty and good faith, and thus less inclined to follow Larry’s restrictive rule concerning accusations of insincerity. Maybe the sheer quantity of American legal scholarship that openly or covertly fails the test of engaging in non-strategic debate makes the whole realm so non-ideal that we should treat American legal scholarship as a plague zone, a failed experiment in honest deliberation and debate. Maybe we would then see an individual’s adoption of a strong assumption against insincerity partly as an effort to model ideal deliberation, regardless of what others are actually doing, and partly as a dogged or desperate attempt to preserve one’s own soul in a sinful world. I find those possibilities interesting and admirable. But in either case, the approach would have little or nothing to do with the actual state of affairs.

The possibility and reality of AI-generated legal scholarship, it seems to me, heightens the question. Roughly put, I understand the position of advocates in this area to be that if the use of AI, in part or even in whole, to create scholarly work results in more and better scholarship, then the search for truth has been advanced and we should treat this as a positive good. To the extent that this is right, and that the AI engine itself has no motives to be sincere or insincere about, why should we care whether the originating “author” is sincere or not? Imagine that the human originator writes, in the (machine-generated) preface to an otherwise convincing article, that he asked the AI engine to find a missing argument in some existing body of literature, choose the side of that argument that is most likely to appeal to the largest number of likely readers (with a weighted emphasis on appealing to lateral hiring committees), and write the best possible version of that argument, which follows. Does the truth of that argument suffer from the multiple layers of lack of genuine feeling or belief that went into producing it? If that human generates one of these every week, sending them into the world out of what he happily admits are purely mercenary motives and with a general indifference to the positions taken, does his sincerity or insincerity matter at all?

I would like to think it does. But I’m not sure I can justify that belief. I might reject the whole enterprise on other grounds, even if it results in more and better scholarship produced more rapidly. There are good reasons to avoid lightly accusing others of insincerity, even if we are certain that some number of academic authors are in fact insincere. But the overarching question whether we should care about scholarly insincerity at all seems like a tougher question to me, and one that will increasingly have little to do with the actual quality of the scholarly work.

I wrote about it here yesterday. I have one genuine question. Before breaking into a full-on Crit-plus-integralism gallop, the piece defends a “basic tie-breaker rule” for HLS Federalist Society elections: “if Robert’s Rules of Order and the Elections Code failed to resolve a deadlock, the elections chair would appeal to natural law first principles to decide the controversy.” Somewhere along the way, after the nine paragraphs of criticism of Justice Gorsuch’s opinion in Bostock that one naturally expects to see in discussions of student group election procedures, it says:

It will be upon the future Election Chair to decide these issues, although a strong statutory command can be read for these, given the background literature in classical legal theory that provides meaning to the words that the “State exists to preserve freedom,” that the “separation of powers is central to the Constitution,” and that, “it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.”[26] 

Fine by me. I’m not sure how closely connected it is to the “how do we decide FedSoc election disputes” conundrum, or how the piece manages to proceed from here to an exhortation to learn from King Josiah and engage in a national purge. But, to quote a very wise man, “Forget it, he’s rolling.”

What does puzzle me a little, though, is that footnote:

Joseph Story, Commentaries on the Constitution of the United States, 131 (New Orleans: Quid Pro Books, 2013) (“The aim of every political constitution is, or ought to be, first, to obtain for rulers men, who possess most wisdom to discern, and most virtue to pursue, the common good of society; and, in the next place, to take the most effectual precautions for keeping them virtuous…”); Adrian Vermeule, Common Good Constitutionalism, 59 (Cambridge: Polity Press, 2022) (“In the classical theory, the ultimate genuinely common good of political life is the happiness or flourishing of the community, the well-ordered life in the polis”); Confucius, The Analects, trans. Simon Leys, 2.16 (“The Master said, ‘The gentleman [junzi] understands what is morally right. The petty man [xiaoren] understands what is profitable.’”); Justinian I, The Institutes of Justinian, trans. J.B. Moyle, 7 (Oxford: Clarendon Press, 1913) (“The precepts of the law are these: to live honestly, to injure no one, and to give every man his due.”); 1 Timothy 2:11–12 RSVCE (“Let a woman learn in silence with all submissiveness. I permit no woman to teach or to have authority over men; she is to keep silent.”).

Whether I agree or disagree–as it happens, I would be delighted if virtue and virtue ethics were far more prominent in thinking about constitutional law and politics, not least because of their ability to help us think through things like this and this and this, as well as this and this and, oh yeah, this–I can understand most of these citations. I can understand their relationship to, if not the actual subject of HLS FedSoc election tie-breakers, then all the other stuff the author gets around to discussing. But I am just plumb flummoxed by what significance the passage from 1 Timothy has here. Perhaps someone can enlighten me.

In one sense, this striking piece in The New Digest is an argument that 1) a strong attachment to the value of process and its legitimating role in the rule of law amounts to liberal fetishism; 2) procedure, to offer a tendentious description of the argument, is only good so far as it leads to the results you like; 3) conversely, it is wicked, and “not law,” if it leads to an act of statutory interpretation that requires a government body to “hire a gay man handling children.” (More accurately, that passage should read: “…if it results in government being statutorily prohibited from discriminatorily firing a gay man, albeit a gay man who’s a layperson and not a member of the clergy, who works in a non-child-handling capacity as coordinator of a juvenile court child welfare advocacy program and has helped it win national awards for its work, but who then has the temerity to openly, flagrantly, disgustingly play softball.”)

In another but, I would suggest, equally meaningful sense, the piece is a deployment of wide-ranging, centuries-spanning, “purge”-friendly argument and high-flown language–all in the service of a tussle about who gets to occupy a resume-enhancing position of negligible importance in a student group at an Ivy League law school. Universities, famously, are the place where the arguments are so fierce because the stakes are so small. The saying needs a second part: Ivy League universities are the place where fierce arguments about small stakes get extensive media coverage, and everyone involved in the spat publishes at least one op-ed about it.

It is both pleasing and unsurprising that both senses of the piece–the actual argument it makes, and the relationship of that argument to the actual stakes, which mostly have to do with internecine disputes over the distribution of status goods within the Ivy League–come together, with almost divinely ordered complementarity, in one clear conclusion: The spirit of Critical Legal Studies continues to flourish at Harvard Law School. It’s fitting that this piece appears in The New Digest, because I don’t think anyone currently teaching at Harvard has done more to keep the Crit spirit alive there than Prof. Vermeule.

Donald J. Trump–who most recently broke a streak lasting since Calvin Coolidge embarrassed himself in the same way in 1926, by getting a handpicked committee to agree to put his face on a coin–today issued an executive order purporting to enforce something else that is newly minted: “the policy of the United States that no college football game, specifically college football’s CFP or other postseason games, be broadcast in a manner that directly conflicts with the Army‑Navy Game.”  

A locution that pretends that statements issued by only one branch of the federal government are “the policy of the United States,” especially when the policy is strictly domestic in scope and more properly the province of the legislative branch, is disturbing. It is also, I fear, all too common. It’s a bad habit and one that predates Trump–although, as always, Trump takes our bad tendencies and wallows in them, like a pig in slop, until they’re different in kind as well as degree. Part of our return to sanity will entail Americans becoming more comfortable, not with using or rejecting the phrase “not my president” according to who is in office, but with treating all presidents as holders of an important but limited office that is not the United States incarnate. Its occupants are individuals who demand no awe or obeisance, who wield power but hold no greater share of sovereignty than any other citizen, and who should be spanked when they become naughty or arrogant. America will be a saner, safer, and more healthily democratic place when we reject the abomination of gold coins and fascistic banners bearing a living president, but also forgo the lesser (because unofficial) but still genuine democratic sin of papering the walls with Sheppard Fairey posters.

The executive order itself, as is often the case, is of course milder in fact than it is in Trump’s fantasies of one-man rule. It directs the Secretary of Commerce and the chair of the FCC to “coordinate” with various other players “with the goal of establishing an exclusive window for the Army-Navy Game, during which no other college football game is broadcast.” The problem with this is not simply that the policy is unnecessary. Nor is it simply the silliness of asserting that having to DVR a game because of a scheduling conflict, or to move one’s head two inches in a sports bar to behold a second screen, “detract[s] from a morale-building event of vital interest to the Department of War [sic]” in a way that demands intrusive presidential action. Nor, problem though it may be, is it simply that a president in a nation that is currently at (undeclared) war is so much a creature of impulse and solipsism that he cannot manage to concentrate on issues that actually, and urgently, are of vital interest to the national defense.

I would point to two additional problems. One is that the president is at best unclear about the fact that he has limited powers without Congress, that he must perforce issue limited and aspirational orders like this one, and that he really has no business at all dictating a national American culture, let alone one modeled after his own unspeakably vulgar and pedestrian tastes. (Bear in mind that we still face a possible successor regime under J.D. Vance that would like to do the same thing, only with more blasphemy prosecutions and vague citations to Salic law.) When his executive orders are more modest than his descriptions of them, it may have less to do with his congenital dishonesty, or with presidents’ customary love of exaggeration, and more to do with a genuine belief that his wishes are law, and that text and execution are mere details.

Take Trump’s speech today presenting the Commander in Chief Trophy to Navy, in which, among other divagations–as always, his tight 30-minute set left ample time for Trump to honor himself–he announced the new order. There’s no business about coordinating here: just a flat statement that “I’m going to sign an executive order to ensure that the second Saturday in December is preserved exclusively” for the Army-Navy game and that “nobody else is going to be allowed” to play football during that game. It’s nice, I suppose, that he adds that “if you don’t want to watch football, you don’t have to,” even if it undermines the justification for the policy itself. But “if you want to watch football, you’re only watching one game.”

I like college football, but how it’s scheduled is of little interest to me. It is important to me that Americans, who pretend to reject monarchism and to favor freedom of choice, are in the grips of a regime that wants a dictated national culture. And it matters too that the president, whose speech again brings up the dreaded autopen but whose acquaintance with what he actually signs seems to be mostly of the nodding variety, thinks he can dictate that and has done it through the order.

The second problem is that, given the nature of his regime, he’s not so wrong about that. His order does not depend on the notion that the CFP, NCAA, and “the playoffs’ broadcast and media rights partners” will happily “coordinate” around this issue and arrive at the answer he wants. It depends on the threat that they had better, if they know what’s good for them. More specifically in this case, it depends on his knowledge that FCC chairman Brendan Carr will gladly threaten licenses and mergers to “serve”–or, possibly, flatter and pacify–his president.

Months ago I wrote, and of course I was hardly the first, that the present regime resembles a “semi-organized criminal enterprise, albeit with two key differences: In a well-run mob, the capos are able men who have guts, and the don is capable of occasional dignity, foresight, and good taste.” In such a regime, enforcement officials don’t even get to aspire to the status of Roy Cohn. Carr–along with Pam Bondi and many others–gets to play one role and one only: he’s Luca Brasi.