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When the Roberts Court Turns Into the Kennedy Court: End-of-Term Thoughts

By my watch it's fifty-five hours since the final decisions of the Supreme Court's October 2006 Term, and it already feels late to be weighing in. Some clichés are important enough to repeat: the pace of analysis, spin, and critical consensus is radically different from what was possible even ten years ago. As one of my former philosophy profs (a Heidegger fan) observed, the Internet is an ontological change.

What kind of Court do we have? Start with Andrew Siegel's excellent "Meet the Roberts Court" at PrawfsBlawg (written before the school cases came down). Then modify it with Lyle Denniston's "The Impact of Fervent Dissent," (written after the school cases). The result, I think, is the best current working model of the Supreme Court.

In the general run of cases, it is the Roberts Court. As Prof. Siegel suggests, the addition of Justice Alito to form a five-Justice working majority has put the "Reagan Justice Department ... firmly in control," limiting and distinguishing Warren and Burger-era precedents. Justice Kennedy is still the swing vote in these cases, but he seems to treat them as "normal science" (to use a Kuhnian distinction that I find oddly helpful re: Kennedy). He will ordinarily agree with the Chief Justice and Justice Alito, or stake out a position in conventional legal terms that comes close to theirs. This is very significant, because the cases in this category are not merely "small" cases -- they encompass some of the most important things the Supreme Court does. Enforcing habeas deadlines, refusing to extend the Establishment Clause standing exception, adopting relatively pro-business interpretations of statutes such as Title VII. It adds up. But these cases fall below the threshold of drawing widespread attention from the non-lawyer media and the public. They are not lead stories on CNN.

In the really big cases -- the CNN cases -- it's the Kennedy Court.

And here Kennedy switches to a judicial persona that I think of as his "revolutionary science" mode. He evokes philosophical abstractions; he moralizes. Even many conservatives frustrated by this approach would be hard-pressed to claim that Kennedy's rhetoric always leaves them cold. Think of the final section of Kennedy's dissent in Hill v. Colorado, which both pro-life citizens and First Amendment stalwarts may find personally moving, as I do.

Sometimes this Justice Kennedy writes opinions like Lawrence v. Texas. Often, he splits the difference. As Lyle Denniston suggests, in the big cases he seems quite sensitive to the prospect that his work will meet with moral disapproval from the left. The biggest decision of the Term -- in the school case, PICS v. Seattle -- was also the only one in which Kennedy did a full-blown "O'Connor", watering down the conservative plurality opinion with an opaque, separate concurrence that agonizes over the competing interests and then declines almost every bright line that the plurality seeks to draw. Schools can use race sometimes -- more than the Chief Justice says -- but not here. The distinction between de jure and de facto segregation is very important -- but sometimes it can become blurred. Etc. Stuart Taylor's friend had a point when he groused, "Every sentence in [Kennedy's] opinion contradicts the sentence before it." Lots of future litigation can be expected in this area of law. And there will be more blockbuster cases in which the Roberts Court turns into the Kennedy Court, tantalizing and frustrating conservatives.

There's an irony here. The elevation of Chief Justice Roberts and Justice Alito would not have been possible without a base of grassroots conservatives who are principally motivated by a desire to secure the overturning of the landmark "culture war" decisions of the Warren and Burger Courts, Roe above all. They've made political common cause with business interests, law & order types, and the other elements of the modern Republican coalition. You might say we've arrived at a point where the other coalition elements can conclude their issues are in pretty consistently good shape at the Court. They fall within the category of "normal science" cases, Roberts Court cases (though the death penalty is a notable exception). But the grassroots populists who have made the whole thing possible remain in suspense, guessing which way Justice Kennedy will jump in the next blockbuster case to come before the Kennedy Court. They need another conservative appointment before they will be able to satisfy their aims.

Posted by Mike_O'Shea at 05:31 PM | Comments (1) | TrackBack

Total Transparency: Toward Integrity or Artifice?

In an extraordinary paper (and talk) on social networking, danah boyd brings up the following anecdote to explain how publicity can modify self-presentation:

In the early 1960s, Stokely Carmichael regularly addressed segregated black and white audiences about the values of Black Power. Depending on his audience, he used very different rhetorical styles. As his popularity grew, he began to attract media attention and was invited to speak on TV and radio. Unfortunately, this was more of a curse than a blessing because the audiences he would reach through these mediums included both black and white communities. With no way to reconcile the two different rhetorical styles, he had to choose. In choosing to maintain his roots in front of white listeners, Carmichael permanently alienated white society from the messages of Black Power.

Glenn Reynolds notes a similar dynamic on the campaign trail:

There's this weird paradox, in that the more transparent you become, the less spontaneous you can be. For example, you had these stories of people like JFK and LBJ on a campaign airplane, shooting the bull off the record with reporters and saying all kinds of stuff that they would never say now. But there's no such thing as off the record anymore.

I don't have much analysis, but I think there's one other dynamic that may come into play--the gradual acceptance by the public of gaffes and miscues as the pressures of perpetually being on stage become clear. The media has gorged on such "pseudo-events" for too long. Coverage of real policy differences, rather than slips of the tongue, would be refreshing.

Posted by Frank_Pasquale at 02:55 PM | Comments (3) | TrackBack

The Admin Law Game

There's a new kind of computer gaming being developed, and "fun" isn't exactly the point:

[Games] created by Bogost's development studio, Persuasive Games, invite us to be ruthlessly greedy, helplessly incompetent, and breathtakingly rude. The goal of Airport Security, for example, is to relieve infuriated passengers of prohibited items in accordance with continuously changing carry-on rules. In Bacteria Salad, players grow veggies for profit and try to avoid poisoning too many people. And in last year's Disaffected!, we assume the role of a Kinko's employee struggling to deliver print orders as lazy coworkers shuffle papers into the wrong stacks.

I wonder if they modeled the airport game on Dan's action figures? Less bleak scenarios are also in the works.

These innovations remind me of the "game-like" aspects of administrative law: how do you navigate a labyrinthine agency to advance your client's interests? The "game design" in Bacteria Salad has to include classic modalities in influencing human behavior: markets, common law, regulation, or norms. As Yochai Benkler notes, games themselves are also creating social relations: for the designer, "the interesting questions are, which approach will better foster creative autonomy, and create a more effective social network."

The recent Washington Post stories on Dick Cheney's influence on sub-cabinet level appointees also reminded me of "god mode" in games. You may think the rules of a given agency are set--and legally, they may well be. But the political aspect of administrative law means that an executive branch higher-up can get a lot done outside normal channels. Consider the case of Klamath river fish:

Law and science seemed to be on the side of the fish. Then the vice president stepped in. First Cheney looked for a way around the [Engdangered Species Act], aides said. Next he set in motion a process to challenge the science protecting the fish, according to a former Oregon congressman who lobbied for the farmers. Because of Cheney's intervention, the government reversed itself and let the water flow in time to save the 2002 growing season, declaring that there was no threat to the fish. What followed was the largest fish kill the West had ever seen, with tens of thousands of salmon rotting on the banks of the Klamath River.

The story of admin is often the story of how politics, law, and science collide. The unpredictability of these "rock, scissors, paper" conflicts makes the subject matter all the more game-like.

Posted by Frank_Pasquale at 12:29 PM | Comments (0) | TrackBack

Fallon & Meltzer on the Detainee Cases

I wanted to highlight this article by Richard Fallon and Daniel Meltzer, which systematically goes through all of the issues related to habeas corpus, due process, and the detainee cases. It is a marvelous article: clear, brief (considering the issues), and thorough. Further, while the authors have definite opinions about the correct outcomes of various issues, they acknowledge that the issues are difficult and that reasonable minds can differ. This is a welcome change from some scholarship (on this topic in particular) that assumes those who disagree are fools or knaves. If you read only one article about the detainees, read this one.

Posted by Brannon_Denning at 08:58 AM | Comments (1) | TrackBack

When Wikipedia Knows Something Too Soon

One of the virtues of the online encyclopedia Wikipedia is that it can reflect new information very quickly after it becomes known. But there's a rather odd development in the case of wrestler Chris Benoit's murder of his family and suicide. From the AP:

Investigators are looking into who altered pro wrestler Chris Benoit's Wikipedia entry to mention his wife's death hours before authorities discovered the bodies of the couple and their 7-year-old son.

Benoit's Wikipedia entry was altered early Monday to say that the wrestler had missed a match two days earlier because of his wife's death.

A Wikipedia official, Cary Bass, said Thursday that the entry was made by someone using an Internet protocol address registered in Stamford, Connecticut, where World Wrestling Entertainment is based.

An IP address, a unique series of numbers carried by every machine connected to the Internet, does not necessarily have to be broadcast from where it is registered. The bodies were found in Benoit's home in suburban Atlanta, and it's not known where the posting was sent from, Bass said. . . .

Benoit's page on Wikipedia, a reference site that allows users to add and edit information, was updated at 12:01 a.m. Monday, about 14 hours before authorities say the bodies were found. The reason he missed a match Saturday night was "stemming from the death of his wife Nancy," it said.

Posted by Daniel Solove at 08:04 PM | Comments (0) | TrackBack

Sicko, Soundbites, and Reform v. Revolution

Michael Moore's film Sicko highlights the basic injustices of the American health care system:

1) tens of millions of people lack insurance

2) you can easily get bankrupted by illness even if you have good insurance

3) you can end up in a game of insurance company "chutes and ladders" if you need expensive treatment

4) France spends less, and gets better results, and has more satisfied patients.

Sadly, Moore goes "over the top" towards the end, viewing Cuba through red-colored glasses. And he ignores how some of the pharmaceutical innovation enjoyed by people of all countries is funded by the U.S. But I am glad someone is getting us to think about comparative health policy.

As David Hyman notes, this is a war of anecdotes. The creators of Harry and Louise should have known that some day someone would be rebutting them with stories of preventable infant deaths, HMO excesses, and patient-dumping. It's only fair...but leaves me with a few regrets.

Having just attended a conference on the future of Medicaid, I'm saddened by the fact that discourse on health care is probably going to focus on the extremes: Moore vs. the dead-enders at Cato who can't even get behind the Romneycare initiative Heritage backed. I disagree with Moore's assumption that nothing less than social revolution can bring health care for all to America. Good people in Massachusetts, California, Maryland, Pennsylvania, and many other states are addressing the problem of the uninsured. Newt Gingrich has some excellent ideas, and even the market-loving doyenne of consumer-directed health care believes Swiss style universal coverage is appropriate for the US.

My only plea to those who would trash the film: before you do, please read Tim Jost's essay on "Our Broken Health Care System." He's thought about these problems for decades, has an encyclopedic knowledge of comparative health systems, and is genuinely fair-minded.

Posted by Frank_Pasquale at 11:47 AM | Comments (6) | TrackBack

Pearl of Great Price: Now You're Cooking with IP!

If you're planning on opening a seafood restaurant soon, watch out for Rebecca Charles, owner of Pearl's Oyster Bar. She's suing rival Ed's Lobster Bar for copying

“each and every element” of Pearl Oyster Bar, including the white marble bar, the gray paint on the wainscoting, the chairs and bar stools with their wheat-straw backs, the packets of oyster crackers placed at each table setting and the dressing on the Caesar salad.

A packet of oyster crackers at a seafood restaurant? What a creative genius!

Seriously, White has some rights based on Two Pesos v. Taco Cabana, a decision that recognized that "trade dress which is inherently distinctive is protectable under [federal law] without a showing that it has acquired secondary meaning"--i.e., that if the look of a restaurant is distinctive, it can sue others for copying the look even if no one particularly associates the look with its originator.

It looks like White is a veteran of more than one restaurant rivalry:

I listened as the regulars [at Pearl Oyster Bar] who stole my seat begged the chef to let them eat at Mary's Fish Camp, which is owned by her former girlfriend. When they split, one kept Pearl, and the other, in one of the great defiant acts of New York restaurant life, opened a restaurant with nearly the same menu just blocks away.

I suppose revenge is a dish best served cold.

The one claim that the NYT article mentions that I think may be a loser is White's complaint that Ed's copied her Caesar salad.

She and her lawyers claim [Ed's] is made from her own Caesar salad recipe, which calls for a coddled egg and English muffin croutons. She learned it from her mother, who extracted it decades ago from the chef at a long-gone Los Angeles restaurant. . . . And although she taught Mr. McFarland how to make it, she said she had guarded the recipe more closely than some restaurateurs watch their wine cellars. “When I taught him, I said, ‘You will never make this anywhere else,’ ” she insisted.

Seems to me like that Caesar salad would be pretty easy to reverse engineer--and reverse engineering has long been a way to lawfully acquire the know-how behind trade secrets. Moreover, it sounds like this idea is not exactly a secret--other folks may well have "extracted it" from the same source.

My hope in this area, as in so many others, is that we can learn from the French. By and large, they don't use law to punish culinary copyists, they use norms. As von Hippel and Fauchart show, "the existence of norms-based IP systems means that the usage of information that is freely accessible and not legally protected may be nonetheless restricted to the benefit of innovators." Magnifique!

Photo Credit: Monceau/Flickr. Will Charles pay royalties to this New Orleans oyster bar if it turns out to have opened before hers?

UPDATE: Mike Madison strikes an appropriately jaded note.

Posted by Frank_Pasquale at 09:24 AM | Comments (4) | TrackBack

RIAA's Turn to Be a Defendant

Matthew Sag has convincingly argued that RIAA's litigation war against downloaders is rational for the industry: it's basically self-financing, as just about every defendant is too terrified of massive statutory damages to put up a fight. But the record industry's declining fortunes may make its court victories Pyrrhic.

Moreover, a scorched earth litigation strategy against infringers is getting less viable as a few defendants fight back. For example, one litigant has found a creative way of subjecting RIAA's tactics to public scrutiny:

Former RIAA defendant Tanya Andersen is now suing the major record labels and the RIAA for negligent and illegal investigation and prosecution. In a thirteen count civil suit filed in Oregon District Court, she alleges that record labels didn’t use properly licensed investigators and violated her privacy.

I'm still waiting for someone to bring the antitrust lawsuit that was forestalled by Bertelsmann's purchase of Napster a few years ago. As Napster-slaying Judge Patel said of the RIAA's distribution strategy then, "These ventures look bad, smell bad and sound bad" from an antitrust perspective.

Of course, given the lassitude of federal authorities, the antitrust case will be hard to make. But I look forward to more privacy challenges. As Sonia Katyal has argued,

recent developments in copyright law. . . have invited intellectual property owners to create extrajudicial systems of monitoring and enforcement that detect, deter, and control acts of consumer infringement. As a result, . . . intellectual property rights have been fundamentally altered—from a defensive shield into an offensively oriented type of weapon that can be used by intellectual property creators to record the activities of their consumers, and also to enforce particular standards of use and expression. . . .

If agencies fail to police these tactics, perhaps only individuals can fight for themselves. But as Bruce Scheier asks, why doesn't the US have a privacy commissioner?

Hat Tip: BoingBoing.

Posted by Frank_Pasquale at 10:59 PM | Comments (1) | TrackBack

Are Alternative Law School Rankings Any Better than US News?

The WSJ has an article on alternative law school rankings to the infamous US News rankings. According to the article: "In the last two years, at least a dozen upstart Web sites, academic papers and blogs have stepped in with surveys of their own to feed the hunger for information on everything from the quality of the faculty to what a school's diploma might be worth to future employers." It has this chart of some alternative rankings of law schools:

In my opinion, all of these rankings have serious flaws.

US News -- The reputation surveys are only given to deans and just one or two faculty members (a very unrepresentative sample of faculty). The reputation surveys are too easy to game. And the reputation scores of 1 through 5 are not granular enough. For example, Yale has an academic reputation score of 4.9, Harvard 4.8, and Stanford 4.7. That means that people in the surveys are rating these schools with 4s or less. Who gives less than a 5 to any of these schools on a 1-5 scale? Some of the other numbers factored into the US News equation are quite silly and can be easily cooked, with schools using accounting tricks that would make Enron officials blush.

Supreme Court Clerkship Placement -- This is a ridiculous way to rank schools. Getting a Supreme Court clerkship is like winning the lottery. There are far too many qualified people than positions, and getting a position certainly takes merit but it also takes a lot of luck. Part of it depends upon the connections of a school's professors, who can place clerks with feeder judges or may even have influence with a Supreme Court Justice. Nobody seriously goes to law school planning on getting a Supreme Court clerkship. And it's based on total number of clerks, so the ranking in the WSJ column is meaningless since some schools are much larger than others (Harvard is more than twice the size of Yale).

Elite Law Firm Placement -- This is better than Supreme Court clerkship placement, but still quite flawed. It assumes that going to an elite law firm is the premiere job in the law. But what about government jobs? AUSAs? Judicial clerkships? Academia? Public interest? Ranking based on elite law firm placement will create terrible incentives for law schools to steer students into big law firms when this may not be what particular students really want to do with their lives.

Law Journal Citations -- This is just silly. I don't see any connection between how many times articles in a school's journal receive citations and a school's academic reputation.

SSRN Downloads -- Another problematic metric. SSRN downloads only measure a paper's popularity with Internet communities. They don't measure a paper's quality. High download counts are skewed toward schools with larger faculties, and to papers by professors who blog or who write about economics or technology issues. I wish I could be more sanguine about SSRN downloads as a ranking mechanism, for GW, the law school where I teach, ranks in the top 10.

Leiter's Rankings -- In this version of his ranking system, Leiter ranks schools by per capita citations to faculty scholarship. Leiter himself recognizes some of the problems with citation counts as a metric of quality, so he understands the flaws in his system. Citations are better than SSRN downloads, but they are still deeply flawed and even in an ideal world only capture a faculty's scholarly reputation, which is a very important component of a law school's quality, but there are other factors as well: quality of the student body, resources, teaching, job placement, etc.

So how are we to rank law schools? If all these methods are flawed, what is the ideal method? If the US News equation is silly, what factors should be considered and how much should they be weighed?

Posted by Daniel Solove at 04:37 PM | Comments (8) | TrackBack

The CIA "Family Jewels" Documents

The CIA has recently released about 700 pages of previously-classified documents, some of which reveal abuses in the name of national security. The CIA calls these documents the "family jewels." The documents were created in connection with a report of CIA abuses for its former director, James Schlesinger. According to a BBC article:

CIA officers in service in 1973 largely used their memory to compile the 693-page report for Mr Schlesinger.

The abuses and illicit activities listed within date from the 1950s to the 1970s.

The documents were initially referred to as "skeletons" by Mr Schlesinger's successor at the CIA, William Colby. They were later nicknamed the "family jewels" and have been referred to as such ever since.

It is quite sad that the CIA refers to records of its abuses as "jewels."

Further, the BBC article states:

The documents detail assassination plots, domestic spying, wiretapping, and kidnapping.

The incidents include:
* the confinement of a Soviet KGB defector, Yuriy Ivanovich Nosenko, in the mid-1960s
* attempts to use a suspected Mafia mobster, Johnny Roselli, in a plot to assassinate Cuba's Fidel Castro
* the wiretapping and surveillance of journalists, including in 1972 columnist Jack Anderson who broke a string of scandals

Among the documents is a request in 1972 for someone "who was accomplished at picking locks" who might be retiring or resigning from the agency.

The documents are available at GW's National Security Archive, which collects and publishes documents obtained via the Freedom of Information Act (FOIA).

The New York Times has analysis and commentary:

The C.I.A. monitoring of journalists in 1963, 1971 and 1972, including wiretapping their phones and setting up observation posts across the street from their offices to track their comings and goings and their visitors, was a practice that the White House itself employed during the Nixon administration.

It’s interesting to see in the description of Project Mockingbird, which describes C.I.A. wiretapping of two Washington reporters (unnamed) from March 12, 1963 to June 15, 1963, that the intercepting of calls, executed under the authority of John McCone, the Director of Central Intelligence, was done in coordination with Attorney General Robert Kennedy, Defense Secretary Robert McNamara and the director of the Defense Intelligence Agency, Gen. Joseph Carroll.

So the Kennedy Administration was involved in the surveillance of journalists. One can only imagine what we'll be writing about many years from now, when FBI and CIA documents during the Bush Administration are declassified. . . .

Posted by Daniel Solove at 03:38 PM | Comments (2) | TrackBack

Baby Naming Branding: 4Real or Just a Fad?

Recently, New Zealand officials kept parents from naming their child "4real," saying "numerals are not allowed." Whatever would happen to Jennifer 8 Lee? Legally, it's a nice example of an ostensibly neutral rationale masking the more substantive value choices embodied in decisions like these:

In Germany, the government still bans invented names and names that don't clearly designate a child's sex. Sweden and Denmark forbid names that officials think might subject a child to ridicule. Swedish authorities have rejected such names as Veranda, Ikea and Metallica.

Apparently aggressive baby branding has become a hot topic for American parents, raising some interesting legal issues. According to the WSJ, parents are having a tougher time than ever choosing names:

As family names and old religious standbys continue to lose favor, parents are spending more time and money on the issue and are increasingly turning to strangers for help. . . The chief reason for the paralysis is too much information. About 80 baby-name books have been published in the last three years, according to Bowker, a publishing database -- compared with just 50 such titles between 1990 and 1996. More than 100 specialty Web sites have popped up offering everything from searchable databases and online snap polls to private consultations.

As the proud bearer of a name that's been in a long decline, I can sympathize with the careful choosers. But some rationales strike me as a bit bizarre:

They chose Beckett for their six-month-old son, a name the Alpers thought sounded reliable and stable. "That C-K sound is very well regarded in corporate circles," Mr. Alper says, giving Kodak and Coca-Cola as examples. "The hard stop forces you to accentuate the syllable in a way that draws attention to it."

I'm sure St. Thomas a Becket would be thrilled. He was, after all, "so disturbed in his devotions by the song of a nightingale that he commanded that none should sing in [Otford, Kent] ever again."

PS: I would be remiss if I didn't link to this fascinating piece on naming rights in a world of inequality.

Posted by Frank_Pasquale at 02:48 PM | Comments (2) | TrackBack

The Right to Food

[Another dispatch from Rome.]

Yesterday, we visited the UN's Food and Agricultural Organization (FAO), based near the Circus Maximus. The FAO's legal staff was gracious enough to give Temple’s students and faculty a presentation on their work, along with tips on how to get into international legal work.

The presentation and idea I found most interesting was the FAO's advocacy on behalf of the (so-called) human right to food. The FAO (and the considerable scholarship on this topic) derive the right largely from the International Covenant on Economic, Social and Cultural Rights (ICESCR), particularly Article 11:

The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent . . .
2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed:

In response to a student question, the FAO's lawyers acknowledged that this right is not presently internationally justiciable. Instead, in the words of the FAO's strategic plan, advocates for the right should "support initial national implementation of the right to food and the Guidelines."

This bootstrapping strategy is common, I think, in campaigns to advance international human rights norms. And it may succeed, at least in some jurisdictions. But it struck me that the ICESCR is an awfully thin read to found a political program as vast as the right to food. Why not similarly push the right to clothing? Now I know that there are other documents doing work - like the 1996 Rome Declaration - but the rhetoric here is simply not commensurate with the founding text. I’ve only begin to look at this topic, but it seems a bit like advocates for the legal status of a right against hunger believe that oft-repeated slogan “The right to food is a human right!” has its own normative force.

Are there particularly thoughtful articles I could read that trace the development of this campaign, and which ground it in something other than a natural rights tradition?

Posted by hoffman at 03:25 AM | Comments (6) | TrackBack

Game Over for Campaign Finance Reform?

Commenting on today's decision on campaign financing (WRTL v. FEC), Richard Pildes highlights how a seemingly technical insistence on the protection of "issue ads" may undo the whole edifice of regulation:

[T]he analogy to the regulation of pornography is hard to miss here; there, the Court held that as long as sexual material had any other "redeeming social value," the First Amendment protected it. In consequence, we saw the birth of x-rated films that offered just a bit more than unadulterated scenes of sex. Now, we are likely to see a return of the kinds of ads we saw before McCain-Feingold: ads that contain a fig-leaf of reference to issues that is just enough to give them constitutional protection, even if the ads are close to hard core efforts to influence election outcomes.

Expect more Swift Boatings and character assassinations, bedizened by fleeting mentions of "the issues."

Commentators in the "thick of it," far more knowledgeable on the topic than me, have declared WRTL a "sea change," effectively repudiating the landmark McConnell decision that was only reached four years ago. But I have a sense the seeds for WRTL were sown about 30 years ago in Buckley, the leading case on campaign finance. Consider this ringing declaration from the 1976 Buckley opinion:

[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.

As soon as that point is capitulated, campaign finance reform becomes (to borrow a Borkian turn of phrase) a policy at war with itself. We already have anti-bribery laws to prevent quid pro quo exchanges of dollars for favors. Campaign finance regulation's raison d'etre is to prevent the conversion of economic into political power. Buckley declared that rationale unconstitutional, and no advocacy is brilliant enough to evade those confines. Trying to argue for effective campaign finance regulation within the confines of Buckley is like trying to compose an epic in a villanelle: the form itself defeats the meaning one would give it.

I'm not saying that the campaign finance system that the Roberts court is undoing accomplishes nothing. At least we know who is giving what to whom . . . and I expect that will be the next target of the anti-reform crowd, "extending" NAACP v. Button.

But I am saying that the Supreme Court's message today is clear for reformers: give up. Even the most timid reforms will end up constitutional impossibilities. Reformers may try to establish "floors" of public spending to give disadvantaged candidates some publicity. But as I explain in a forthcoming piece in the Illinois L. Rev., we can expect those floors to rapidly become meaningless as unrestricted spending escalates. Modern campaigning is largely a struggle for issue salience, a positional good whose value is inevitably relative. We should also expect public funding itself to be attacked in so-called issue ads. Anything goes in the brave new public sphere of WRTL.

The bottom line for those who care about democracy: focus on substance, not rules of the game like campaign finance. They may be intimately connected, as Michael Dorf suggests. But reform is futile as long as the current Supreme Court stands ready to eviscerate any effort to level the campaign playing field.

Photo Credit: Rob Lee/Flickr, Money Shirt.

Posted by Frank_Pasquale at 06:26 PM | Comments (8) | TrackBack

Rosen's Crabbed View of Judicial Temperament

I recently finished Jeffrey Rosen's The Supreme Court (can you say "read" if you listened to it on your iPod?), and I found myself rather underwhelmed with Rosen's analysis of what he took to be his central theme: judicial temperament. In many ways Rosen's book is very good. It makes the springes of constitutional law approachable for a general audience, and provides a chatty and gossipy look at the Supreme Court that manages to provide a real sense of some of the personalities of the justices, as when he describes William O. Douglas as "a judicial lounge act."

Rosen presents us with a white hats vs. black hats vision of the Supreme Court. The good guys are genial institutionalists like John Marshall, Hugo Black, William Rehnquist, and -- most of all -- John Roberts. The bad guys are brilliant loners like Oliver Wendell Holmes Jr., William O. Douglas, and Antonin Scalia. In Rosen's book judicial temperament refers to the ability to husband and increase the legitimacy of the Supreme Court by behaving in a statesman like way and refusing to allow abstract philosophies dictate imprudent results.

Rosen's problem -- and it is one to which constitutional law mavens seem prone -- is his Supreme Court-centric view. Judicial legitimacy means the legitimacy of the Supreme Court. Judicial temperament means the temperament of justices who shield that Court. In fairness, Rosen is writing a book about the Supreme Court, but there is more -- much more -- to judicial virtue than the legitimacy of the Supreme Court.

Rosen's list of villains nicely illustrates his crabbed view of temperament. Whatever else they were, Holmes, Douglas, and Scalia are very different kinds of judges. It is a fairly easy matter, I think, to dismiss Douglas. His opinions are sloppy, poorly reasoned, and provide minimal guidance to lower courts while maximizing the number of attention grabbing aphorisms. Holmes and Scalia, of course, are also aphorism mongers, but unlike Douglas they have some real respect for the role of judge as an expounder of legal doctrine. Holmes, I think, is a better example here than Scalia. His opinions, particularly on the Supreme Judicial Court of Massachusetts, did a great deal to flesh out the core doctrinal concepts of areas like tort and contract, providing not only answers on hard questions but more importantly a structure and vocabulary in which to debate his answers. Likewise, one of the reasons that Brennan -- a little discussed justice in Rosen's book -- was not a judicial lounge act was that in addition to sharing Douglas's liberal instincts, he was also a doctrinal craftsman, creating an intellectual structure on free speech law, for example, that has largely won the (partial) allegiance even of political opponents like Scalia. It is not simply, however, that Brennan was an effective smoozer while Douglas was not. Rather, Brennan understood that the Court's decisions were only powerful to the extent that they provided intellectual categories that could guide lower court judges. Douglas's penumbras are ridiculous not only because they undermined the legitimacy of the Court, but because they told those who had to apply the law virtually nothing about the contours of its demands.

Rosen's view of judicial virtue, however, has little to say about legal craftsmanship. Fixated on judicial review and the counter-majoritarian difficulty, he focuses relentlessly on the issue of institutional legitimacy. Hence, for example, Sandra Day O'Connor is praised for her judicial statesmanship, yet as any lower court judge or lawyer not practicing before the Supreme Court can tell you, O'Connor's opinions are a nightmare to apply precisely because of their inattention to doctrinal structure. They may position the Court in a politically advantageous position, but they do little to advance the coherence and consistency upon which the day to day application of the law depends. Of course, even my preference for doctrinally minded judges reveals a law professor's bias for appellate courts. The temperament of real judges, the kind involved in the concrete resolution of disputes in our society involves an additional catalog of virtues.

In the end, Rosen's analysis tells us what makes for the continuation of politically powerful courts. I don't think, however, he has all that much to say about what makes for a good judge.

Posted by oman at 11:48 AM | Comments (4) | TrackBack

Singing the Blues

A nice story illlustrating a conflicts of rights problem from Philadelphia:

Maybe you've heard about the case of Anthony Riley, the cherubic American Idol wannabe with the angelic tenor who didn't see why he should stop singing in Rittenhouse Square.

Charged with disorderly conduct, he has his day in court July 3.

Since being cuffed and spending 18 hours in jail, Riley's seen his star rise, singing for City Council, appearing on local television. He's become the smiling face of a city-wide movement of those who believe music is free speech, and that police have better things to do than arrest someone singing "A Change is Gonna Come."

Hard to argue with that.

But you probably haven't heard from Jonathan Frank, who lives 11 floors above that jewel of a square, in a most rarefied prison.

"I represent the other side of the argument," he says, sitting in his living room amid hundreds of books, a humming floor fan, and a pair of noise-canceling headphones bought for $35 at a store for hunters.

The rest of the column is pretty good too, especially the part where Riley asked the cop arresting him for the relevant statutory basis. The cop's response: I am the law. Classic.

[Photo Credit: Law Records.]

Posted by hoffman at 04:46 AM | Comments (0) | TrackBack

Trumpeting the Telecosm

Many thinkers have touted the revolutionary potential of the "telecosm," a world of infinite bandwidth capable of transmitting any message anywhere. But I've come across few passages as rhapsodic as this:

The network will supply room enough for every sight and sound, every thought and expression that any human mind will ever wish to communicate. It will make possible a wildness of spirit, where young minds can wander in adventurous, irresponsible, ungenteel ways. It will contain not innocence, but a sort of naïve gaiety, a buoyant, carefree feeling, filled with confidence in the future and an unquenchable sense of freedom and opportunity. It will be capitalist civilization at its best.

Can anyone guess where I found this gem of a prophecy (circa 1999)?

A treatise! -- Peter Huber, Michael Kellogg, & John Thorne, Federal Telecommunications Law 77-78 (2nd ed., 1999).

I have to admit that it's an extraordinarily well-written treatise, but that bit in the introduction strikes me as a bit of a stretch.

By the way, if you're now hungry for some substantive and cautious "big ideas" on the future of communications policy, check out this post.

Posted by Frank_Pasquale at 09:49 PM | Comments (1) | TrackBack

Excursus on the Beatles

I once heard a forlorn graduate student put a $20 bill in her dissertation in 1978, and when she returned to campus 20 years later to see if anyone had read her magnum opus, the bill was still there. Given that some proportion of law review articles never get cited, authors of the "long tail" of legal scholarship may want to develop some strategies to see if their own works are getting read. One strategy appears below the fold....

In the course of reading a footnote on the prudent man rule in a note discussing the liability of ratings agencies for bad ratings (75 Cornell L. Rev. 411), I found the following extended discussion of the Beatles:

For an excellent discussion of the infirmities of the prudent man rule, see . . . John Lennon & Paul McCartney, “Dear Prudence,”' The Beatles, (Columbia Records 1968) (detailing the Beatles's objections to the prudent man rule).

The members of the Beatles were well known advocates in the fight to abolish the prudent man-they called him a real “No Where Man.”' By ignoring the dictates of prudent investing, they were able to amass sizeable fortunes. They also wrote numerous songs in the fight to adopt a better set of fiduciary management rules, including “ERISA in the Sky with Diamonds,”' “A Day in the Life of a Trust Fund Manager,”' “The Ballad of John and Yoko's Money,”' “Back in the ERISA,”' and, of course, “Dear Prudence,”' an open letter to their mutual fund director, which later was set to music and became a hit in A major. In addition, they wrote numerous songs giving investment tips to the record-buying public. “Penny Lane”' was a nostalgic look back on the penny stocks, while “‘Magical Mystery Bourse”’ touted the advantages of investing on the Tokyo stock exchange.

“I'll Follow the SUN,”' which outlined John's contrarian strategy of investing based on the acronym, Stocks Undervalued Now, was the first major work questioning the strong form of the efficient capital markets hypothesis. George Harrison, too, was a rock economist: for example, “While my Accountant Gently Weeps”' outlined his despair at seeing his prudently invested trust funds losing their value. Even Ringo Starr joined the crusade for a better prudent man rule, recording “She's 16, She's Beautiful, and She's Mine,”' which told the story of his investment in Lockheed, which he bought at exactly one-fourth of its previous high of 64. The contrarian investment later soared.

Although the Beatles later broke up because of a fight over whether they should invest in tax-free municipals or high-growth equity investments, John Lennon and Paul McCartney did see eye-to-eye on the need for a better prudence standard. John Lennon released the poignant “Imagine,”' which painted the idyllic world where economics and efficiency would be the goal of all people, in the investment world or elsewhere. His words, as meaningful today as they were a decade and a half ago, were:

Imagine there's no prudence,
It isn't hard to do,
No U.S. bonds for us,
Higher returns too.
Imagine all the people,
Investing for today.
You may think I'm a dreamer,
But I'm not the only one,
We hope someday you'll join us,
With alphas over one.

A cold realist, John also released the haunting “Cold Turkey,”' the story of his agony when his subscription to the Wall Street Journal was inadvertently cut off due to post office error.

It is time to acknowledge the contribution of these young millionaires to the financial scene. Although their music no longer tops the charts, their investment strategies still top the financial charts. Every fund manager today owes these visionary rock economists an enormous debt that she cannot hope to repay, even with high-yielding, imprudent junk bonds.

Anyone want to send in their favorite "excursus" footnotes? The hyperfootnoted law review article may be a genre ripe for satire, and even, as in this piece, Dadaist revolt. (Hat tip for the Spam piece: Michael Madison.)

PS: The ratings agency article actually isn't even part of the uncited long tail--it's been used as authority in at least a couple cases.

Posted by Frank_Pasquale at 12:50 PM | Comments (1) | TrackBack

Consumer Time Travel

(This is another in my series of dispatches from Rome. If you are getting tired of the concept, don't worry: I'm coming home in a week.)

Two aspects of life here offer a nice comparative story about the way life in the United States used to be, and might become.

The first is the specialization of food shopping in Rome. Small shops for seemingly every type of food - cheese, meat, fruit, wine, cereals – line the streets in Rome’s old city center. In each shop, one (or two) employees dispenses food from behind a counter – it is not a self-service experience. It seems like these tiny shops, rather than the occasional small supermarket - are the primary way that citizens get their food. In a way, shopping here is like stepping back in time in the states to around 1940 or so. And there is something charming about the experience: the interactions (me in pantomime) are personal; the food is fresh and delicious; and you are less likely to slip and fall on a banana peel left on the ground. But the food is expensive, especially fruit, and if I were a busy citizen instead of a less-busy tourist, I'd find going to five different stores to complete my shopping to be a daily irritant.

Why does this specialization persist? I know less than I should about the risk of supermarkets in the United States, but I've a few preliminary thoughts. The first explanation denies that Italians shop at small stores outside of the cramped confines of City Centers. That is, just in the States, it is difficult for supermarkets to obtain purchase and economies of size in expensive urban cores. So, maybe, most Italian citizens do go to supermarkets, just not in places that tourists spend their time.

But this doesn't explain why in the States some supermarkets have entered cities, or why butchers, cheese-mongers, fruit-stands, and bakeries are generally dead or gourmet institutions.. So then I was tempted to think that Italy’s rejection of supermarket organization reflects the comparative strength of Italian labor unions, and the comparative inability of Italian businesses to easily franchise. Or maybe there is a tort or agency law explanation?

On the other side of the spectrum, I've been struck by the security measures at Italian internet cafes. As Solove noted here, a recent Italian security act requires owners to collect personal information from users, usually in the form of a passport. From my experience, owners will not accept a paper copy of a passport but instead will take and hold the real thing for the duration of your time online.

On the whole, this is a chilling experience, and reminder that every link you follow can be, and maybe will be, later seen by the authorities. In the current political climate it is difficult to imagine such a law passed in the United States, although given the relative lack of internet cafes, the better analogy probably would be to require wifi hotspots to collect personal information about users. I imagine that in that hypothetical world, I’d get used to the loss of privacy, just as the Italians have to the loss of theirs, but it would surely rankle at first.

[Photo Credit: Campo de' Fiori Market, courtesy of A Young American in Rome]

Posted by hoffman at 03:59 AM | Comments (7) | TrackBack

Critical Race Theory casebooks (and course structure) question

This fall, I'm going to be teaching a seminar on Critical Race Theory. It looks to be a fun topic to teach, and I'm excited about the class. I'm less excited about the pedantic task of selecting a book. However, with the bookstore breathing down my neck, book selection must take place. This requires me to nail down some underlying questions about course structure that I hadn't really resolved yet.

I'm of two minds.

Option one is to assign one or both of the two essay collections that seem most suited for a seminar. (Delgado's Cutting Edge, and Crenshaw et al's Key Writings.) The class will hit several essays, and students will ultimately write a major paper on one essay (and probably a few minor paper responses to others). This sounds like fun. It also sounds quite a bit more unstructured than any other class I've ever taught.

Option two is to go a more structured route. West has a CRT casebook, by Dorothy Brown, that situates some of the ideas of CRT in a coherent outline format. If I use this one, I'll probably drop one of the two essay collections, and go for a more structured, outlined sort of class.

I do like the idea of just essay-hopping and tying it all together loosely. But I don't want to frighten the students, and I worry that a completely unstructured outline might do that. So -- what do other professors (or Co-Op readers in general) think? In particular, has anyone here taught CRT using either of the methods I've mentioned -- and if so, how did it go?

Posted by Kaimipono at 02:16 PM | Comments (4) | TrackBack

Purloined Persona or Just Another FP?

Some experts recommend a quick "self-google" each week to be sure that all the information presented about you on the web is accurate. I learned the value of that approach earlier this Spring when lawyers from a hospital in Texas asked me if I was running something called "The Paris Site," which lambasted their management. I reassured them I had nothing to do with it, and suggested that perhaps "Frank Pasquale" is a common enough name that it was someone else with that name that was running the site. However, they've now sued the blog for defamation, and are alleging its owner was trying to pass himself off as me:

The hospital contends the blogger’s alias and “assumed perona” of Frank Pasquale is apparently intended to mislead readers of the blog to think the blogger is Frank Pasquale, associate professor of law at Seton Hall Law School. That Frank Pasquale is a regular contributor to several blogs, but denies any affiliation to the blog or the blogger and was unaware the blogger had appropriated his identity until it was brought to his attention by the hospital.

Apparently the ISP has 20 days to reveal the identity of the site's owner.

I'm a bit surprised by the whole thing, since there are a lot of other bloggers who write on health care whom this person could have posed as. Strangely enough, I have also written on the "disambiguation" concerns a case like this poses. (That part of the article is probably the least realistic as a policy proposal, but I count it as one small victory that someone from Google jokingly proposed giving everyone the right to change their name at 21 in order to avoid to being linked to what they wrote before then.)

So the lesson here is: even if none of your ex's live in Texas, someone there might be up to some trickery (with apologies to George Strait).

UPDATE: William McGeveran of Info/Law provides some great commentary on the situation here.

Posted by Frank_Pasquale at 08:22 AM | Comments (2) | TrackBack

Making Sense Out of the Iraqi Detention Cases

As Lyle noted on Tuesday over at SCOTUSblog, the first Iraqi detention case has made its way to the Supreme Court, with the filing of the cert. petition in Munaf v. Geren. Given that the hypertechnical issues raised in the cases might make it somewhat difficult to appreciate the full scope of what is at stake, I thought I'd add my own two cents on why Munaf is such an important case, both with respect to clarifying the D.C. Circuit's messy case law, and with respect to (finally) dealing with the Supreme Court's 1948 decision in Hirota v. MacArthur, either by limiting it to its narrower holding, or by doing away with it altogether.

More below the fold...

The Basic Issue:

The central question raised by Munaf is under what circumstances, if any, the federal courts may exercise jurisdiction over habeas petitions brought by individuals detained by the Multinational Force-Iraq ("MNF-I"). Critical to understanding the complexity of this question is understanding the two central variables:

1. Is the detainee a U.S. citizen or a non-citizen?

2. Is the detainee being held pursuant to a conviction by the Central Criminal Court for Iraq ("CCC-I") or not?

The Cases:

Thus far, U.S. courts have considered three of the four possibilities raised by the above two variables.

The Omar case (Omar v. Harvey) involves a U.S. citizen held by the MNF-I, but _not_ convicted by the CCC-I. Indeed, Omar sought a preliminary injunction _barring_ his transfer to the CCC-I, which the district court granted in February 2006, and which the D.C. Circuit affirmed earlier this year (before denying the government's petition for rehearing en banc).

The Munaf case (Munaf v. Geren) involves a U.S. citizen held by the MNF-I _pursuant to_ a conviction by the CCC-I. Munaf's habeas petition was dismissed by the district court last summer on jurisdictional grounds, and the D.C. Circuit affirmed the dismissal (although divided as to whether the affirmance was on jurisdictional or merits grounds) in April of this year. The cert. petition filed earlier this week (and thoroughly described by Lyle) seeks review of _that_ decision.

There have also been a handful of cases brought by _non-citizens_ held by the MNF-I pursuant to a conviction by the CCC-I. Most prominent among them is the last-minute stay application filed by Saddam Hussein, which the D.C. district court dismissed on jurisdictional grounds last December. Other cases, including, most recently, Ramadan v. Bush, have met with a similar fate.

Finally, to my knowledge, there has not yet been a case brought in U.S. court by a non-citizen detained by the MNF-I, but not pursuant to a CCC-I conviction. Or if there has been, I am unaware, as yet, of any rulings in such a case.

Distinguishing Among the Cases--What About Hirota?:

In all of the cases described above, the government has argued that federal jurisdiction is precluded by the Supreme Court's 1948 decision in Hirota v. MacArthur. As many readers know, I have an article hot off the presses (see 95 Geo. L.J. 1497 (2007); not yet on Westlaw) about Hirota and its relevance to the pending cases. To spare you the punishment of reading it, let me suggest three questions that make clear why Hirota's application to these cases presents such a doctrinal morass:

1. Did Hirota turn on the absence of _all_ federal jurisdiction, or just the Supreme Court's constitutional "appellate" jurisdiction?

Although Munaf has argued, rather forcefully, that Hirota concerned only the narrow question of the Supreme Court's jurisdiction to entertain an "original" habeas petition, and not the availbility more broadly of _all_ federal jurisdiction, the D.C. Circuit subsequently held, in a 1949 decision called Flick v. Johnson, 174 F.2d 983 (D.C. Cir. 1949) [not available online], that Hirota also applied in the lower courts. Judge Tatel seized upon this point in Omar, noting (correctly, I think) that Flick, so long as it remains on the books, compels the answer to this question even if Hirota itself does not. [Note: The per curiam opinion in Hirota, as I explain in my article, reflected Justice Black's apparent insistence that it not explicitly rest on _either_ jurisdictional defect, which makes this that much thornier.]

2. Did Hirota turn on the citizenship (or lack thereof) of the petitioners?

The second argument advanced in Omar and Munaf for distinguishing Hirota is that Hirota was a non-citizen, and the federal courts _must_ have jurisdiction over such petitions where citizens are concerned. While this argument is obviously a compelling one as a policy matter, it's a lot more dubious as a matter of constitutional law, for reasons I try to suggest in my article (and which Judge Lamberth explains more succinctly in the district court decision in Munaf, and Judge Brown hints at in footnote 1 of her dissent in Omar). Whether Hirota concerns limits on the Supreme Court's constitutional appellate jurisdiction, or on Article III more generally, it is dubious to read a citizenship-based distinction into the limits on federal question jurisdiction contemplated by the Constitution. Indeed, Justice Douglas, in his post hoc concurrence in Hirota, seemed to agree that whatever rule the obtuse per curiam in Hirota stood for, it was one that would apply equally to citizens and non-citizens alike. [Note: This result is exactly why I think Hirota must be overruled, but I'll come back to that shortly.]

3. Does Hirota only preclude jurisdiction over "collateral" (or "post-conviction") habeas petitions?

This last question, although the "smallest" as a constitutional matter, is the most significant in the current cases, for it is the _only_ basis for distinguishing Omar (in which the D.C. Circuit upheld jurisdiction) and Munaf (in which it rejected jurisdiction). The problem, as I explain in the article, is that the suit in Hirota wasn't, in fact, a "collateral" challenge to Hirota's conviction by the Tokyo war crimes tribunal (indeed, it is important to remember that Hirota was decided _before_ Brown v. Allen, which first threw open the door to federal consideration of collateral habeas petitions).

Precedents from the Civil War already established that federal courts only had jurisdiction to inquire into the jurisdiction of military tribunals, and so Hirota could have relied on those cases if it was rejecting jurisdiction on the ground that the lawsuit sought post-conviction collateral relief. But in reality, Hirota's petition challenged the jurisdiction of the IMTFE, and the constitutionality of General MacArthur's participation therein. Hirota may have had no case on the merits, but the Court's dismissal for want of jurisdiction suggests that Hirota applies even to "jurisdictional" habeas petitions, and that it therefore does not distinguish between whether the petitioner is seeking post-conviction relief or not.

---

To whatever extent the above analysis makes sense, it should suggest that the D.C. Circuit's decisions in Omar and Munaf are completely irreconcilable, and that Hirota, read together with Flick, _does_ preclude jurisdiction over the petitions in both (indeed--all) cases. To me, that's a compelling argument for overruling Hirota, or at least Flick, but even to those who might disagree (and, to be clear, I don't mean to suggest that the petitioners in these cases will prevail on the merits; only that the courts should _reach_ the merits), it strikes me as a compelling argument for the Supreme Court to grant certiorari and clean up this mess.

Posted by Steve_Vladeck at 05:34 AM | Comments (0) | TrackBack

A Tour of the Solar Flares

It's 2507. You're sailing in a tour ship thousands of miles above the surface of the Sun. From the air-conditioned quiet of its observation deck, you look down through huge, shielded windows into the sea of fire, watching enormous prominences sprout into the blackness like trees of flame.

That, anyway, is the picture I always see when I listen to "To Here Knows When," the fourth track on My Bloody Valentine's Loveless (1991). The keyboards and drums percolate and chatter high, distant, gliding by calmly as the solar feedback roils and combusts in the foreground, vast and wild.

Loveless is the contemporary sublime. It taught the '90s how to sound. I'm not much given to psychedelic experiences, but this LP, played loud in a darkening room, is one. Or you can put it on in the background in your office on a Wednesday evening, as you work on an article. That works too.

Posted by Mike_O'Shea at 07:17 PM | Comments (5) | TrackBack

Is This The Beginning of the End for U.S. News Undergrad Rankings, and Will Law School Rankings Survive the Collapse?

The New York Times reports today that the presidents of dozens of liberal arts colleges have agreed to stop participating in U.S. News’ college rankings survey. According to the report, the Annapolis Group, an association of liberal arts colleges, released a statement that a majority of the 80 college presidents attending its annual meeting had declared their intent not to participate in the U.S. News rankings. The move follows on the heels of similar efforts by college presidents earlier this year, and of a widely-publicized critique of the rankings system last month in the Chronicle of Higher Education.

Has the liberal arts world finally decided that enough is enough? The Times quotes Judith Shapiro, president of Barnard College: “Frankly, it had bubbled up to the point of, why should we do this work for them? … [T]his is not our project.” Of course, the jury is still out on whether the liberal arts colleges’ nascent rebellion will have legs. Not surprisingly, some schools at the top of the food chain – e.g., #2 Amherst – plan to continue to cooperate with U.S. News, and want further “discussion” of the issue. Still, this latest move by liberal arts colleges seems to be more than mere window dressing.

All of this has me wondering: If U.S. News loses its undergrad rankings cash cow, will the law school rankings be far behind? Or might the law school rankings survive, even if the undergrad rankings collapse? Put differently, are there reasons why the law school world will (and perhaps should) continue to “do U.S. News’ work for them”?

I can think of a couple of reasons why law school rankings might survive, despite the collapse of undergrad rankings.

First, perhaps rankings “work” in the law school context – perhaps they’re more appropriate and more useful than in the liberal arts context. After all, law students and liberal arts students are very different kinds of consumers: Most liberal arts students are looking for a particular kind of “experience,” and the varying “experiences” that liberal arts institutions offer are just not something that U.S. News-style rankings can adequately capture. But like it or not, most law school students aren’t looking for an “experience” – they’re looking for a job. As consumers, they look for the product (i.e., legal education) most likely to produce the largest number of high-quality job opportunities. And perhaps that is something that some kind of rankings system can capture, even if U.S. News’ particular version does a bad job of it.

Second, I suspect that law school deans and most law professors are simply less troubled by the rankings system than are our liberal arts counterparts – a fact that can be explained by the very different academic cultures that we inhabit. The legal profession itself attracts Type A, comp