It seems to me that those making these critiques assume that the primary value of legal scholarship should be to (1) describe current legal doctrine to make legal research easier for practitioners; or (2) influence an immediate and direct change in the law.  In an earlier post, I argued that #2 above is an unreasonable standard.  Legal change is slow, and rarely will one article have a direct [...]]]> The longstanding attacks on legal scholarship all seem to assume a particular relationship between theory and practice, one that I believe is flawed.  Recently, I responded to one such critique.  There are others, with Justice Roberts and many other judges and practitioners claiming that legal scholarship isn’t worth their attention and isn’t useful to the practice of law.

It seems to me that those making these critiques assume that the primary value of legal scholarship should be to (1) describe current legal doctrine to make legal research easier for practitioners; or (2) influence an immediate and direct change in the law.  In an earlier post, I argued that #2 above is an unreasonable standard.  Legal change is slow, and rarely will one article have a direct influence.  Rarely does one thing have a direct influence — change typically occurs more through an indirect influence by numerous sources.  Only in the movies or in simplistic historical accounts will we see one article or book lead to dramatic changes.  Of course, it occasionally happens, but rarely.

In this post, I want to tackle claim #1.  The treatise writers and doctrinal legal scholarship of yesteryear has diminished, though it isn’t gone.  Last I checked, there were quite a lot of treatises written by quite a lot of law professors.  But there is today a lot more theoretical scholarship.  Is this scholarship valuable if it doesn’t help in legal research?

The answer is yes for many reasons:

1. As with all humanities, the value of any particular work is hard to quantify.  What’s the value of Kafka’s The Trial or works by Shakespeare?  What’s the value of reading history?  What’s the value of learning things that don’t have direct application to one’s career?  I believe there’s a lot of value.  Reading these works opens up new ways of thinking, sparks new ideas, and helps people understand the world differently.  This can indirectly affect one’s legal practice skills by enhancing creativity, improving one’s writing style, or making one see the facts of a case in a different light. It is interesting that many of the great jurists were also avid readers of literature.  Indeed, many of the great thinkers and writers throughout history had wide-ranging intellectual interests and reading habits.  Would people like Benjamin Franklin or Thomas Jefferson be as creative if they had more narrow and workmanlike intellectual exploration?  Probably not.  Would Justice Holmes have been as great without his love of the humanities?  I doubt it.

2. There is a value in critiquing legal decisions and laws, even if the critique winds up remaining in dissent.  Why do justices bother to write dissents?  After all, it often takes decades if not 40-50 years for the Supreme Court to change the law.  They write dissents in the hope that one day the Court will see things differently.  They write them to make a record.  There is a value in criticizing legal opinions and laws even if it doesn’t immediately result in a change.  Indeed, many of the critiques of legal decisions and laws that I read in legal scholarship are very powerful ones.  Courts and lawmakers should pay more attention, as the scholarship often reveals logical flaws in reasoning, clear errors in applying precedent, assumptions that are based on faulty facts, assumptions that are wrong based on empirical evidence, or assumptions that are contrary to widely-accepted conclusions in science or social science.   Courts and legislatures may hide their heads in the sand, but that shouldn’t be a justification for criticizing legal scholarship — it should be a basis for criticizing courts and lawmakers.

3. Pointing out errors is valuable even if those errors are uncorrected.  For example, it seems to me that if a court relied upon an assumption that is clearly wrong according to empirical evidence or other evidence, and a law review article points this out, but the court doesn’t change its opinion, then shame on the court!  I don’t think the appropriate reaction should be to denigrate the law review article, calling it “useless” because the court chose to maintain its error.

4. Much of the law is based in faulty logic and assumptions contravened by empirical evidence.    Consider the law of evidence, which has countless rules that run totally against modern understandings of psychology and empirical evidence.  Consider the M’Naughten rule for insanity, which is based on obsolete nineteenth century understandings of mental illness.  Consider the way courts handle technology issues, showing a lack of a basic understanding of how technology works.  It is important to point these problems out.

5. Legal scholarship can also reveal inconsistencies in a judge or justice’s jurisprudence.  Countless articles, for example, have been written about Justice Scalia’s inconsistencies.  Many people love Scalia for his colorful language and the fact he has articulated comprehensive theories for the way he interprets the Constitution.  In many articles, Scalia’s views have been critiqued, and major inconsistencies have been pointed out.  I think that’s a good thing.  Are these articles valuable if Scalia doesn’t read them and doesn’t resolve his inconsistencies?  Absolutely.  They are valuable to show others that there are problems with Scalia’s jurisprudence.  Please note that I’m not just picking on Scalia — many thinkers and jurists have some inconsistencies in their thinking.  The value of scholarship is to identify these inconsistencies and work to resolve them.  Until we somehow reach the “truth” about interpreting the Constitution or the law, having more analysis of the issues is valuable as we evolve our positions and ideas.  Indeed, I like to think that my views aren’t fixed, but are evolving — I believe I’m constantly learning and growing as a thinker, and to do this, I think it is good to have criticism and new perspectives.

6. It seems to me that those practitioners who attack legal scholarship often have a view that it is a waste of time to think normatively or deeply about a particular legal issue.  Their view is that all that matters is to read about the case holdings.  But in many areas of law, there is quite a dynamism.  Consider information privacy law — my field.  The law is often unsettled in many areas, with contradictory opinions being issued all the time.  New issues keep popping up.  Courts may not talk about the normative implications, but I’m certain they are thinking of them as they craft their decisions.  Being able to understand the normative implications of taking the law in different directions is very helpful for an attorney — at least in my field.  For example, consider the recent GPS surveillance case before the Supreme Court — United States v. Jones.  Here, the precedent appears to point to the conclusion that the Fourth Amendment doesn’t protect against GPS surveillance.  A narrow-minded lawyer might have given up, but fortunately, the lawyers in this case didn’t and convinced the D.C. Circuit to adopt a new approach.  The Supreme Court may reject this approach, but that doesn’t mean the effort to argue for it was worthless.  All this involves normative and more theoretical views of the law.  Of course, lawyers can act like plumbers, and many do, but the really good lawyers are thinkers and understand that policy infuses law and influences it, sometimes directly but often subtly.  They understand that courts are more comfortable changing the law if they understand the policy implications of the change.  They also know how to use normative arguments to shape the way courts interpret precedent.  Even in the GPS surveillance example, there are good arguments to support the Fourth Amendment’s applicability based in precedent.  That’s often the case with law — there are decent arguments on both sides of many issues.

7.  Theory informs practice.  It may not be a direct influence, but don’t discount its power.  Practice without theory is rudderless and unimaginative.  The law is moving forward and it is evolving.  I doubt anyone thinks today that all cases have clear answers in precedent.  Legal scholarship is the way that many new ideas can inform the development of the law.  The process is often very slow — it can take decades.  Rarely will one article have a direct and immediate impact.  But the ideas do start to take hold over time.  Consider the legal realists.  Their ideas were developed in rather theoretical scholarly articles and books, but over time, they have had an enormous influence on the law and the way we think about it and understand it.   The naysayers of today, if they lived when Llewellyn or others were writing, might have said: “This is just theory and it is useless.”  How wrong they would have been!

8. Finally, I want to acknowledge that there are many law review articles that are terrible.  Many are filled with jargon, are bloated with bad prose and uninteresting arguments, etc.  Many are indeed quite useless.  But so it is with nearly anything.   Most things that people create aren’t all that good.  For every Mona Lisa, there are more than 1000 other artworks that nobody remembers.  It often takes well over 1000 plays to get a great play, or over 1000 books to get a great book, or 1000 songs to get a great song.  And 1000 judicial opinions to get a great opinion.  It seems to me that no matter what the field, the batting average is never going to be good. In baseball, if you get a hit only 30% of the time and fail to get a hit 70% of the time, you’re a great hitter.  I don’t think legal scholarship as a .300 batting average or anything close, but neither do most creative endeavors.  Does that make them useless?  No.  Because despite a majority of “outs,”  a few home runs can be quite fabulous, and can make quite a difference!

I happen to be on the editorial board of a T14 law school’s law review, so I have to cite check and read articles regularly. Of those I’ve read, I can’t think of a single one I thought would be useful to a practicing lawyer. The problem is, in my experience, most seem to advocate a fundamental change in philosophy to an area of law that diverges from what precedent would suggest. To me, this seems extremely unhelpful, because A. Lower courts aren’t likely to accept a grand new theory that seems to contradict what SCOTUS is saying, B. As far as I can [...]]]> A reader of my post about the N.Y. Times critique of legal education writes, in regard to the value of legal scholarship:

I happen to be on the editorial board of a T14 law school’s law review, so I have to cite check and read articles regularly. Of those I’ve read, I can’t think of a single one I thought would be useful to a practicing lawyer. The problem is, in my experience, most seem to advocate a fundamental change in philosophy to an area of law that diverges from what precedent would suggest. To me, this seems extremely unhelpful, because A. Lower courts aren’t likely to accept a grand new theory that seems to contradict what SCOTUS is saying, B. As far as I can tell SCOTUS seems not to usually change its theory either, and C. I don’t think most policymakers tend to read law review articles.

This leads me to be inclined to believe that most law review articles are useless. Are you saying my sample is unrepresentative of what’s out there? Or do I simply have a narrower definition of usefulness? Could you perhaps suggest some articles from the past year that in your mind represented useful legal scholarship?

This commentator assumes that usefulness is the equivalent of being accepted by the courts.  I quarrel with this view for many reasons:

1. An article can have an influence on cases, even if difficult to demonstrate.  Many courts don’t cite law review articles even when they rely on them.  Judges are notorious for not being particularly charitable with citations.  They often copy verbatim parts of briefs, for example.  If a law professor relies on a scholarly work even in a minor way, the professor will typically cite to the work.  Not so for courts.

2. Most articles will not change the law.  Changing the law is quite difficult, and if most law review articles changed the law, the law would be ridiculously more dynamic than it currently is.

3. No matter what discipline or area, most of the things produced are not going to be great.  Most inventions are flops.  Most books, songs, movies, TV shows, art works, architecture, or anything produced are quite forgettable and will likely be forgotten.  Great lasting works only come around infrequently, no matter what the field.

4. Most people are forgettable too.  In the law, most practitioners and judges have been forgotten.  Only a few great ones are remembered.  Of the judges who are most well-known, it is interesting that many were more theoretical in nature and had a major impact in changing the law — typically in ways law professors might change the law.  Think of Benjamin Cardozo, who wrote many articles and books and who radically changed the law.  Think of Felix Frankfurter, a former law professor.  Think of Louis Brandeis.  Think of Oliver Wendell Holmes.  These were jurists who were thinkers.  They were readers.  They were literary.  They were writers of scholarship too.  Maybe the forgettable practitioners and judges are the ones who ignore legal scholarship.

5. The commentator’s remarks that I quoted above seems to be only focused on judicial decisions.  Legal change can occur legislatively as well as through administrative rulemaking.  A lot of legal scholarship that critiques the law can have influence in legislatures or with agencies.

6. The commentator writes: “I don’t think most policymakers tend to read law review articles.”  I doubt that the Congresspeople themselves read law review articles, but staffers might take a look where relevant.  They won’t likely read them cover to cover, but if there’s an article on point that is helpful, I believe they will read it.

7. In my own experience, I’ve found that some of my more theoretical writing has been read frequently by practitioners.  My book Understanding Privacy, for example, is a theoretical account of what “privacy” means and why it is valuable.  I base my theory on the ideas of Ludwig Wittgenstein and John Dewey, and I cite to a lot of social science literature.  More than some of my more so-called “practical” work, it is this book where I receive the most positive feedback from practitioners.  In particular, a lot of Chief Privacy Officers in business, government, and education find the book useful.

8. Legal change can be slow.  Samuel Warren and Louis Brandeis’s The Right to Privacy was a very influential law review article, spawning four privacy torts in a majority of states.  They published their article in 1890.  Ten years later, the article would have been viewed as a failure.  No courts had adopted their theory.  No legislatures had adopted their theory.  Finally, in 1902, the N.Y. Court of Appeals rejected Warren and Brandeis’s theory.  At this point, the legal scholarship naysayers would be saying that Warren and Brandeis’s article would have been a total flop.  A dozen years had passed, and a court declined to change its precedent based on the article.  But then the N.Y. legislature stepped in and recognized a privacy tort based on the article.  And slowly, other courts and legislatures followed.  This process was slow.  It took about 50 years to unfold.

I recently had the opportunity to chat with Lior about the book. 

Daniel J. Solove (DJS): What drew you to the topic of exclusion?

Lior Jacob Strahilevitz (LJS):  It was an observation I had as a college sophomore.  I [...]]]> Lior Strahilevitz, Deputy Dean and Sidley Austin Professor of Law at the University of Chicago Law School recently published a brilliant new book, Information and Exclusion (Yale University Press 2011).  Like all of Lior’s work, the book is creative, thought-provoking, and compelling.  There are books that make strong and convincing arguments, and these are good, but then there are the rare books that not only do this, but make you think in a different way.  That’s what Lior achieves in his book, and that’s quite an achievement.

I recently had the opportunity to chat with Lior about the book. 

Daniel J. Solove (DJS): What drew you to the topic of exclusion?

Lior Jacob Strahilevitz (LJS):  It was an observation I had as a college sophomore.  I lived in the student housing cooperatives at Berkeley.  Some of my friends who lived in the cooperatives told me they felt morally superior to people in the fraternities and sororities because the Greek system had an elaborate, exclusionary rush and pledge process.  The cooperatives, by contrast, were open to any student.  But as I visited friends who lived in the various cooperative houses, the individual houses often seemed no more heterogeneous than the fraternities and sororities.  That made me curious.  It was obvious that the pledging and rushing process – formal exclusion – created homogeneity in the Greek system.  But what was it that was creating all this apparent homogeneity in a cooperative system that was open to everyone?  That question was one I kept wondering about as a law student, lawyer, and professor.

That’s why page 1 of the book begins with a discussion of exclusion in the Greek system.  I start with really accounts of the rush process by sociologists who studied the proxies that fraternity members used to evaluate pledges in the 1950s (attire, diction, grooming, firm handshakes, etc.)  The book then brings us to the modern era, when fraternity members peruse Facebook profiles that provide far more granular information about the characteristics of each pledge.  Proxies still matter, but the proxies are different, and those differences alter the ways in which rushing students behave and fraternities exclude.

DJS: What is the central idea in your book?

LJS: The core idea is that asymmetric information largely determines which mechanisms are used to exclude people from particular groups, collective resources, and services.  When the person who controls a resource knows a lot about the people who wish to use it, she will make decisions about who gets to access it.  Where she lacks that information, she’ll develop a strategy that forces particular groups to exclude themselves from the resource, based on some criteria.  There’s a historical ebb and flow between these two sorts of strategies for exclusion, but we seem to be in a critical transition period right now thanks to the decline of practical obscurity in the information age.

That sounds really abstract, so let me illustrate the idea with a historical example: eighteenth century British welfare.  The population was extremely immobile.  Poor people often were born, lived, and died in a single county.  The local charities that dispensed welfare knew who was a genuine hard-luck case and who was a lout.  They could give aid to the former while refusing the latter.  Then, in the nineteenth century, rapid urbanization occurred.  Poor people suddenly became mobile, and every local dispenser of charity began encountering scores of people he had never seen before.  He could no longer separate out the deserving and the undeserving poor easily.  So dispensers of public charity in England switched to a “workhouse” model.  You were only eligible for government welfare if you live in a workhouse.  Life in the workhouses was crummy.  They were bleak.  They were crowded.  There was no booze allowed. And they put people to work if they wished to be fed.  Unable to sort effectively among different kinds of welfare-recipients, the British develop a test that the “deserving poor” were much more likely to pass.  Instead of excluding the louts from welfare, they forced the louts to exclude themselves.

Today, we’re increasingly coming to resemble eighteenth century Britain, not nineteenth century Britain.  Look at what India is doing with biometrics and databases right now.  They are using modern technologies to “turn back the clock” to the sorts of relationships between the state and the citizen that we saw in eighteenth century Britain.  And they’re correctly invoking notions of meritocracy, fairness, and efficiency to do it.

As you’ve written, there are “digital dossiers” on all of us, which are made increasingly available at very low costs.  Facial recognition software, combined with massive public and private photo databases are eroding privacy in public spaces.  DNA databases are growing.  Behavioral profiling and data mining are exploding.  Location-tracking through GPS-enabled smartphones is becoming commonplace.  So the dynamics of exclusion are shifting once again. . . away from strategies that bundle access to collective resources with disamenities that are unpalatable to members of the group targeted for exclusion.  The government and the private sector have lots of information about individuals once again, so they can sort people themselves rather than trying to induce people to self-assess and self-sort.  My book explores what’s at stake with this shift from one form of exclusion to another.  You can achieve homogeneity with either strategy, but the different strategies produce very different sets of costs and benefits for the people being excluded, the people being included, and the people doing the excluding.

DJS: What do you consider to be the most surprising or controversial implication of your theories in the book?

The most controversial idea is that the government ought to use information policy to affect private actors’ choices about whether to exclude and how to exclude.  It’s uncontroversial that the government can ban private discrimination by employers or landlords.  But we have to realize that the government can affect the incidence of discrimination through more creative tools as well.  Where the government sees employers engaged in statistical discrimination, it can supplement traditional law enforcement tools with “searchlight strategies” to publicize previously private information.  To take a salient example, we know that employers seeking to hire entry-level blue collar workers discriminate against African American males in part because they overestimate the propensity of African American males to have criminal records.  Because of this overestimation, publishing complete information about criminal histories for everyone would likely reduce the incidence of statistical discrimination, increasing the employment prospects of African American males as a group.

I extend this searchlight approach to develop a bunch of proposals for how the state can use information policy to further antidiscrimination interests.  For example, the book proposes promoting the use of Electronic Medical Records as a strategy for reducing physicians’ tendency to prescribe narcotics in a racially discriminatory way, and subsidizing Yelp and Angie’s List to make people less reliant on ethnic preferences in selecting contractors.  These strategies can supplement orthodox tools of antidiscrimination law like public enforcement and private causes of action.

Of course, this approach to combating discrimination raises all kinds of thorny questions: Should the government suppress information when doing so might reduce undesirable forms of statistical discrimination?  Once information is released, can it be revoked if its disclosure surpisingly backfires?  What should be done to weed out false information or customer feedback that are themselves influenced by racial animus?  I talk about the answers to these important questions in the book.

The book also considers whether racism prompts people to move to residential communities built around mandatory membership golf communities.  That’s another controversial hypothesis, and its part of a discussion of how real estate developers are really selecting populations of residents when they decide which amenities should be bundled into a new community. Yet those decisions about bundling go virtually unregulated by fair housing laws.

DJS: You have very nuanced views about privacy, but my sense is that you see a small role for privacy in a well-functioning society — not a large one.  Is that correct?  And you argue that we need to distinguish between instances where privacy is desirable and areas where it is counterproductive.  How are we to make these determinations?  Do you have a set of guiding factors or considerations?

I believe that privacy is an intermediate good.  It can be a means toward important ends, but is never an end unto itself.  Privacy can be undesirable when it results in racial discrimination, or cyber-bullying, or fraud, or sexual harassment in public spaces.  Privacy is worth fighting for when it facilitates human intimacy, or when it nurtures representative democracy, or when it prompts people to seek out medical attention, or when it fosters experimentation that leads to self-discovery.  A satisfying answer to the question, “What’s the benefit of more privacy?” has to be something beyond “more privacy.”  Advocates and scholars sometimes fail to appreciate this essential aspect of information privacy.

To take an example that’s particularly near and dear to my scholarly agenda, can you imagine what life would be like on our urban and suburban roadways if cars didn’t have license plates?  There’d be more “privacy.”  There’d also be a gigantic increase in unlawful, aggressive, and antisocial driving.  We’d have many more roadway accidents and fatalities.  Privacy advocates have helped kill off red-light cameras, automated ticketing for speeding based on EZ Pass or toll booth data, and other traffic safety innovations.  What important interests are being served by privacy in this context?  In the context of red-light cameras with proper data minimization controls, I don’t see any legitimate interest that privacy is serving, but I see a lot of blood on the pavement if privacy interests kill off the technology’s use. There is also the boy crying wolf problem.  Every time privacy is invoked to defend trivial interests, it weakens the force of privacy arguments in contexts where privacy protections do enormous good.

Thanks, Lior, for answering my questions.  Lior’s book is Information and Exclusion (Yale University Press 2011).  This is definitely a book for the must-read list.

I think this is yet another area where Jack’s analogy (or really, Sandy Levinson’s analogy, which Jack credits generously) between constitutional faith and religious faith, between the Bible and the Constitution, is highly instructive.  The Protestant idea that we all can read and interpret the Word for ourselves is just that—an idea.  It is an important idea for reasons I’ll say something about in a second, but it’s somewhat aspirational.  One can, and some people do, believe in the authority or even the inerrancy of the Bible without reading it much (or at all).  It is also possible to read it [...]]]> I appreciate Doug taking up questions from my earlier post and I think he’s right about the central role elites play in interpreting constitutional texts.

I think this is yet another area where Jack’s analogy (or really, Sandy Levinson’s analogy, which Jack credits generously) between constitutional faith and religious faith, between the Bible and the Constitution, is highly instructive.  The Protestant idea that we all can read and interpret the Word for ourselves is just that—an idea.  It is an important idea for reasons I’ll say something about in a second, but it’s somewhat aspirational.  One can, and some people do, believe in the authority or even the inerrancy of the Bible without reading it much (or at all).  It is also possible to read it without understanding it very well.  Most people today report that they find Biblical text hard to understand (although the irony is not lost on me that the survey I just linked to saying so was conducted by the Vatican).

Luckily, if you have a hard time reading or understanding your Bible or your Constitution, help is on the way!  Many experts and leaders—elites, as Doug says—stand ready to help by offering interpretations, often complete with textual citations, that ordinary people can understand (and there is no need for most people to actually go look up the citations).  Very often these authorities offer their interpretations in a manner that is charismatic, memorable, and convincing.  Their interpretations are all the more convincing when they happen to square with one’s own pre-existing beliefs about what the Bible or Constitution ought to say or mean.

So does all this mean the Protestant idea has no practical effect?  Quite the contrary.  The Protestant idea has an extremely important effect.  The normative premise that we all are able to read and interpret the text for ourselves means that we do not have to trust the priests in the temple; we do not have to trust the Justices who emerge from behind the curtain of the Court.  We get to decide for ourselves who to trust, whose interpretive authority to respect.  This is, as Jack says, a great theology for dissent.  We can decide we agree with people who say that on a particular question, all nine Justices got it wrong.

This is why Jack’s conception of constitutional Protestantism is linked in a such a deep way with his account of the role social movements play in constitutional change.  But in my view, the mechanism by which constitutional Protestantism empowers social movements to make constitutional changes has little to do with ordinary people literally reading the constitutional text and coming up with their own interpretations of its meaning.

Jack notes that people generally cannot name Supreme Court decisions (245); he contrasts the case law, the work of “We the Judges,” with the text that belongs to We the People.  I am somewhat skeptical of the strength of this contrast.  I doubt most people would do much better naming important Amendments or clauses of constitutional text than they would do identifying important cases.  And yet I still think there is something to what Jack says, that the very fact that the Constitution is an open, public text “authorizes people from all walks of life to claim the right to interpret it.” (237)  I’d put the emphasis on “right.”  Most people do not actually do this interpretive work for themselves, literally reading the words and trying to determine their meaning.  And they need not.  In our pluralistic, Protestant polity, many different interpretive views are being articulated all the time, not only in editorials and blogs but also at political rallies, in sermons, on TV, on the radio.  All we have to do is listen and decide who is right.

But how do we decide that?

In part, we decide whose answers we like best.  That’s not all, of course.  We also decide whose ways of speaking and reasoning about the Constitution appeal to us.  And here I think the analogy between religion and law, between the Bible and the Constitution, is more than an analogy.  Anecdotal evidence strongly suggests, and I would be very surprised if it were not the case, that people who interpret their Bible as literally true and inerrant are also likely to prefer discourses about the Constitution that emphasize its unchanging character, reverence for its origins, its authority over us, and the limits of our role as interpreters.  On the other hand, I strongly suspect that people who view their Bible as a source of meaning to be re-interpreted with new glosses and layers of commentary in each generation are likelier to be comfortable with theories about the Constitution that do the same.  But all that said, I really doubt that most people choose which elite interpreters of the Constitution sound the most correct and plausible to them primarily on the basis of interpretive methodology.  It has to be mostly about substance—not necessarily results in particular cases, but which substantive visions, which constitutional narratives, each of us finds more compelling.  It probably also has quite a bit to do with the the speaker’s affiliations—specifically, whether the speaker is connected to a group, a social movement, a political party we respect or identify with.

And that is where I think Jack’s theory (with Sandy Levinson) of partisan entrenchment, and the connected idea of a link between what Jack elsewhere calls “high politics” and “low politics,” comes into play.  Constitutional questions are not simply political questions.  But neither are they extricable from politics. Our jurisprudential views are never fully separable from our political and moral views, any more than our theological views can be completely separated from our moral views.  (In one of the most striking sections of Constitutional Redemption, Jack cautions readers not to let our jurisprudential views reshape our moral views and constrain our moral imaginations, but instead to retain a sense of morality independent of our sense of what the Constitution requires.) If constitutional debates are a special kind of politics (“high politics”), our decisions about which elites to trust, and who to credential as an authority to speak about the Constitution, are political decisions of a special kind.  We make constitutional changes in part by voting elites with particular constitutional views into high office (especially the office of President, who appoints Supreme Court justices), but also by providing popular support that enhances the stature of other elites who may never hold any public office.  On this picture of things, We the People may not be in the driver’s seat of constitutional interpretation, but constitutional Protestantism gives us power to decide to whom we hand the keys.

If this positive account is right, there are a number of real problems with this state of affairs.  Most obviously, all of the distortions of normal politics will tend to flow into, and shape, constitutional politics as well.  Any entity with substantial political power, whether or not that power is democratically legitimate, also has significant power over the trajectory of our constitutional law.

In the end, to return to the topic of my earlier post, I am not sure that the democratic character of this kind of constitutionalism is compatible with a constitutionalism that maintains a close tie to text.  Elites who go to law school can be socialized into a world where particular bits of text matter.  But for most people, it’s hard to see how that could occur.  We do not have Vacation Constitution Schools in which we have children memorize passages of Constitutional text, nor do we have Constitution Mitzvahs in which we showcase our young teenagers’ newfound and perhaps fleeting ability to read and explain a passage in the original 1787 language… and really, thank goodness.   Instead we have something much simpler: a system in which people, very few of whom have probably ever read most of the text of the Constitution, listen for authorities who talk about the Constitution in a way that speaks to them.  We listen for authorities who speak in a way that makes sense to us in terms of the rest of the nomos we inhabit.  Jack’s own narrative of constitutional redemption, like Martin Luther King Jr.’s great narrative of the Declaration as a promissory note, speaks to us not because it’s such a close exegesis of the Declaration’s text, but because it’s a compelling narrative that resonates with deep American themes of progress and renewal.  It speaks to us.  Maybe that is enough?

Among many other things, this book offers a particularly well-developed story about the role that stories play in constitutional argument and constitutional change.  I thought I’d start there, because that piece is at the foundation of the argument of the book.  Also it has the fun property that once you start thinking in its terms, you start seeing examples everywhere.  Indeed you see these moves even in debates that are not, explicitly, constitutional debates.

And this raises an interesting question: to what extent is this book about faith in the Constitution, and to what extent is it, instead, about faith [...]]]> First, thanks to Danielle and Jack for the opportunity to participate in this symposium.  I’m happy to do it because I think this is a fantastic book.

Among many other things, this book offers a particularly well-developed story about the role that stories play in constitutional argument and constitutional change.  I thought I’d start there, because that piece is at the foundation of the argument of the book.  Also it has the fun property that once you start thinking in its terms, you start seeing examples everywhere.  Indeed you see these moves even in debates that are not, explicitly, constitutional debates.

And this raises an interesting question: to what extent is this book about faith in the Constitution, and to what extent is it, instead, about faith and redemption in something like the broad political/constitutional project of the United States?  It is hard to separate these things.  But let’s look at places where the two might plausibly come apart.  Jack (citing Mark Graber) notes that in recent years, among liberals, the canonical example of a policy problem the constitution does not address is the distribution of income and wealth (132-33).  So let’s begin with the stories we tell about fiscal policy.

Last April, President Obama made a speech on the deficit and fiscal policy in which he offered a defense of Medicare, Medicaid, and unemployment insurance, along with Social Security.  He said: “From our first days as a nation, we have put our faith in free markets and free enterprise as the engine of America’s wealth and prosperity.  More than citizens of any other country, we are rugged individualists, a self-reliant people with a healthy skepticism of too much government.  But there’s always been another thread running through our history -– a belief that we’re all connected, and that there are some things we can only do together, as a nation.”  After discussing such collective projects as schools, science, the military, and the interstate highway system, Obama argued that Medicare, Medicaid, unemployment insurance, and Social Security were part of this “American belief that we are all connected,” which is in part a “conviction that each one of us deserves some basic measure of security and dignity.”  He argued, “We are a better country because of these commitments. I’ll go further – we would not be a great country without those commitments.”

Rick Santorum sharply criticized these comments in a speech in June.  Santorum quoted the lines above and responded, “Ladies and gentlemen, America was a great country before 1965!”  When the applause died down, he continued: “Social conservatives understand that America is a great country because it was founded great.  Our founders, calling upon, in the Declaration of Independence, the Supreme Judge, calling upon Divine Providence, said what was at the heart of American exceptionalism.  In the Declaration of Independence it said ‘We hold these truths to be self-evident, that all men are created equal and endowed by our Creator with certain inalienable rights.’  You see, our founders understood that we were going to take the principles, Judeo-Christian principles, that had been out there for centuries, and we were going do something radical.  We were actually going to found a government upon these principles.”

The positive account of the constitutive role of stories in Constitutional Redemption gives us a framework for understanding what both Obama and Santorum are up to.  They are both constructing narratives that identify what they take to be the nation’s fundamental commitments by telling stories about the past.  The explicit argument between the two of them is over how we ought to situate the Great Society in our narrative.  But it is hard to miss the rumblings of broader cultural debates—civil rights, busing, abortion—in the assertion that “America was a great country before 1965” and the applause that followed that line.  Implicitly, the two narratives here suggest different heroes and villains, different accounts of how we should view the uphevals of the 1960s and early 70s. Santorum’s rhetorical move is a classic: trying to discredit Obama’s narrative by arguing that it is insufficiently reverential of the past, specifically of the fact that the country “was founded great.”  I imagine Jack would view this form of argument as a form of what he calls apology or theodicy.

The most striking thing about Obama’s remarks is the degree to which they give equal space to two different, conflicting narratives: one of rugged individualism and independence, the other of community, connectedness, and dignity.  (If anything, he tells more of the story of the individualistic narrative, even though that narrative is not one within which he can make the case for the Great Society.)  Like Obama the politician, Obama the storyteller seems to take a balanced, pluralistic tack, rather accommodating of the narratives of his opponents.  And here at least, he does not attempt to link the American commitments that underlied the Great Society to any story about the founding or the Constitution itself.  One certainly could do so.  My colleague Willy Forbath argues, very persuasively, that the social and economic commitments forged in the Progressive era, and then fulfilled to some degree in the New Deal and the Great Society, together make up not just a policy story but a constitutional story.

However—and this is the reason I picked these two quotes to discuss—neither Obama nor Santorum makes any explicit reference to the U.S. Constitution.  (Santorum does discuss the Declaration, and he may believe, like Jack, that it has constitutional status—even if he reads it as basically a Judeo-Christian religious charter, a story rather different from Jack’s!)  These speeches by Obama and Santorum are clearly doing what Jack is talking about in Constitutional Redemption.  They are using stories to build arguments about America’s fundamental commitments.  But they are doing it in terms that are not explicitly constitutional—or at least, not explicitly Constitutional.

Politicians and ordinary people seem to do this all the time.  We do not just tell stories about the meaning of the Constitution, the founding, Reconstruction, and the Declaration.  We tell stories, for example, about the meaning of events like the Cold War.  And these stories work in just the way Jack describes.  I grew up understanding the end of the Cold War as a great victory of democracy over Soviet totalitarianism.  I was surprised to discover later on that to other Americans, who grew up with different narratives and normative commitments, the Cold War was something quite different: for some, a victory of free market economics over socialism, and for others, a victory of Christian civilization over godless Communist atheism.  These narratives, needless to say, shape one’s sense of the heroes and villains, the commitments made, and what it means to honor or affirm the legacy of this piece of American history.  Such stories are clearly part of what Jack calls the “constitutional culture” (178).

So this leads me to my question.  Is Jack’s story of constitutional redemption bigger than the Constitution?  Is this book really about faith in something like the project of the United States—its ideals, its promise, its commitments, its possible future redemption—rather than just the Constitution?  Or does that question get it completely wrong, because there is no such dichotomy: instead, to the degree that Obama or Santorum or any of us is arguing about our fundamental commitments as a nation, we are (therefore) arguing about our constitution?  Jack hints in the latter direction in early part of the book, in his argument that the Declaration is part of the constitution because the Declaration constitutes us.  If that is the case, then the constitution that matters for purposes of Jack’s argument is really the American version of the British constitution—not the written document but a set of fundamental commitments that constitute us (some but by no means all of which have to do with our written document).  Still, at other points, particularly in the last chapter, Jack emphasizes the distinctive role of Constitutional text.

To put it simply, what is this “constitution” to which we are all professing faith?  Is it a document, or is it a narrative?  When we tell constitutional stories, are we telling stories about a Constitution, or are the stories themselves the constitution?  Are we really the people of the Book we profess to be, or is that just a story we like to tell?

There’s been a joke making the rounds of Tokyo during the past week or so: The government announces in the morning that there could be a sudden blackout sometime by early evening, since power capacity is down and the demand is already very near to capacity. In America, the blackout happens, and stores get looted. In China, the blackout happens and no one notices, since they’re already a common occurrence. In France the blackout happens, and people start to make love. In Germany the blackout happens, [...]]]> [Attorney and journalist Andrew J. Sutter is the only foreign member of the Iwate Prefecture Bar Association. He lives most of the year in central Tokyo. We've invited him to give his perspective on recent events in Japan. --FP]

There’s been a joke making the rounds of Tokyo during the past week or so: The government announces in the morning that there could be a sudden blackout sometime by early evening, since power capacity is down and the demand is already very near to capacity. In America, the blackout happens, and stores get looted. In China, the blackout happens and no one notices, since they’re already a common occurrence. In France the blackout happens, and people start to make love. In Germany the blackout happens, and no one cares, because everyone has solar power. In Japan, millions of Japanese conscientiously reduce power consumption, so the blackout is avoided – and then people are pissed off because the blackout didn’t happen as announced.

Aside from showing the gentleness of the Japanese sense of satire, it’s a true story, based on events in Tokyo exactly one week after the Touhoku (northeastern Japan) earthquake. The joke arrived on my wife’s cell phone about an hour or two after officials rescinded the warning.

The joke also shows a certain trust in the government and in the reliability of its pronouncements. More about this below the fold.

Who are the objects of this trust? Not national politicians, most of whom pour their energies into fund-raising, point-scoring and internal bickering. Least of all the current prime minister. Naoto Kan’s already abominable approval ratings would have taken a possibly terminal nosedive, but for a lucky break. A few hours after the morning news revealed that he’d received a campaign contribution from a foreign national (criminal only if with knowledge, but a strict liability political headache), the earthquake struck. Like a fluke reading of radioactivity, his approval ratings have recently spiked – to slightly above 28%. But already there is talk of party secretary and lead government spokesperson Yukio Edano as successor.

Rather, the trusted are mainly (i) bureaucrats, known by the metonym “Kasumigaseki,” for the Tokyo district where they are based, and (ii) local government. Japanese bureaucrats are unlikely heroes. Most of them are recruited straight from graduating Tokyo University, the most prestigious university in the country, or from another of a handful of top schools. Virtually none of them has any practical experience outside government.

Nonetheless, bureaucrats and local governments have shown that they can learn since the Kobe earthquake of 1995, in which their inaction was blamed for the deaths of 6,000 people from collapsed buildings and fires. Ministry officials have been streamlining import regulations, and, at least in connection with a project I’m working on that would send German portable power generators to refugee shelters, apologizing for taking more than two hours to answer emails. (It’s the German company, whose CEO has a Ph.D. in strategic management, that’s been dithering.) And pace some skeptics, thanks to stringent building codes, there seem to have been few, if any, deaths from building collapse during the recent quake. In our family hometown of Morioka, a city of 300,000 and the inland capital of one of the worst-hit prefectures, Iwate, there weren’t any.

The vast majority of deaths from the “tsunami and quake” are from the tsunami alone. Building codes don’t help much against tsunami. A perforated, air-filled box doesn’t have much chance against a wall of rushing water and the debris that it’s pushing. Even so, we’re far from helpless. Early warning systems and other measures were in place in many of the worst-hit towns. More lives were saved than lost.

A 5-meter tsunami, or a 15-meter one like that which hit the Fukushima plant, overwhelms such preparations. Once it penetrates inland in a valley, it can climb much higher. The tsunami reached just inside the front door of our cousin, a dentist in Ofunato. She lives at 50 meters elevation (about 200 feet above sea level). Geological records show that the last time such a huge tsunami hit the Tohoku region was in 869 C.E.

Media coverage in Japan has been thorough, factual and sad. For the first 10 days or so after the quake, even the commercial broadcast channels ran only public service ads, though seekers of escapist fare on cable couldn’t escape Proactiv’s saturation buy. For a while it was comforting to imagine that the country’s biggest problem was zits, or, to use the much cuter name by which they’re known here, nikibi. Until one started to wonder what happened to the two cheerful girls from Sendai, so thrilled to tell the camera about their cleared-up skin.

The tragedy, including the occasional miraculous rescue, was the dominant narrative here for a week or more. Practical issues of survival are now the main focus. The national system of designing schools to double as disaster shelters has worked well. Unfortunately, the lack of gasoline, and the damage to roads, rail and ports, made it difficult to provision them, especially against the bitter cold. Even the cities that fared better, like Morioka, are suffering from shortages.

This story will continue for months. The engineering problems seem to be getting resolved with miraculous speed. A highway famously torn apart has already been repaired, with less than a week’s effort. Today we heard that the Touhoku bullet-train line, whose 140 breaks were expected to need one to two years to repair, will be re-opened by the end of April. But some law-related problems will persist: many towns’ family registers – the key record in civilian legal systems, without which one can’t get married, open a bank account, get a professional license, or participate in many other activities of a normal life – have been swallowed by the ocean. Slowest of all to heal will be the human psychological trauma. Friends of ours in the television industry tell us about video editors afflicted with PTSD, from editing the images of dead bodies out of footage. How much worse it is for the tens of thousands who suffered the disaster in person is impossible to imagine.

Conscientiously covered, but lower on the list of priorities, is the nuclear “disaster” in Fukushima. Even on a day when the airborne radioactivity count spiked suddenly in Tokyo, it wasn’t the top item in the domestic news. The event’s impact on the national energy debate may be negligible. On Mixi and other message boards, the conclusion drawn from the events of March 11 is that Japan should switch to electric cars as soon as possible. The lack of gasoline – exacerbated by the tsunami’s destruction of several Pacific Coast tanker ports – has hampered rescue efforts, as well as the efforts of families like mine to visit loved ones in the Northeast or to ferry them to safer parts of the country.

Unlike the debate in the West, and despite a small but active Japanese anti-nuclear movement, there isn’t any talk in the mainstream here about abandoning nuclear power. Without it, Japan would be far too dependent on foreign energy sources. Instead, the resolve is just to make the next generation of reactors stronger. No one expects that a 35-year-old reactor could withstand a 9.0 earthquake and 50-foot tsunami.

In the early days there was even mild sympathy for TEPCO, the Fukushima plant’s operator, at having to deal with so many troubles at once. If that’s soured recently, it’s because of the chairman’s failure to visit Fukushima to apologize, and management’s negligence in equipping workers fighting the crisis: two shod only in sneakers were sent into a foreseeably-flooded section of a reactor building, suffering terrible burns.

Recent revelations that TEPCO may have stored too many spent fuel rods at the Fukushima facility, among other misdeeds, haven’t changed the public assessment of the tsunami’s effects. Nor have revelations of excessive chumminess between the regulators and the regulated, which are nothing new in Japan. (Those who remember the Bubble Era of the 1990s will recall nopankissa – coffee shops (kisssaten) whose panty-less waitresses helped bankers to entertain Ministry of Finance officials.) These are seen as issues with compliance or enforcement, not with the principle of regulation, or with the technology.

That Kasumigaseki is generally trusted doesn’t mean it’s immune from criticism. Complaining about it is a popular pastime. The Japanese regulatory scheme is seen as something that can always be improved – and also supplemented by spontaneous action.

When toilet paper became scarce in my Tokyo neighborhood a few days after the quake, the proprietors of the local fish shop asked their relatives to the west, near Mt. Fuji, to send over several cases. They then distributed a 12-pack apiece to seniors in the neighborhood. A friend who doesn’t have any connection at all to Touhoku stood in line to donate 13 spare blankets, which she had first washed and ironed. My neighbor the sweets-maker, whose family has lived in Edo (the ancient name for Tokyo) for centuries, put a collection jar for Touhoku on a chair on the sidewalk in front of his shop, where it sits unsupervised and unstolen for hours each day.

Civil society in Japan was born from similar efforts after the 1995 Hanshin quake. The attitude isn’t though, that private effort is better than government action. It’s more that government should do these things, but since it doesn’t, private citizens will pick up the slack.

Contrast that with the picture painted by the Western media. Unencumbered by scruples about alarming the locals, they sensationalize their headlines, as if all that hit Japan were not sensational enough. “Panic grips Tokyo” read one MSNBC headline from a few days ago. Lately, the finding of elevated but non-threatening amounts of radioactivity on the outstretched leaves of spinach plants in fields, and in raw milk that hasn’t yet left the farm, has become “contamination of the food supply.”

Foreign op-ed writers feel empowered to diagnose modern Japanese nuclear fears, based on 60-year-old monster movies. This, from a country that produces a musical about a guy bitten by a radioactive spider (leaving aside the Incredible Hulk, Daredevil, etc.) Yet despite their supposedly wounded collective unconscious, it’s not the Japanese who are fleeing Tokyo in fear: it’s the expats. The Germans, French, Australians and many others have moved all or most of their embassy staff to Osaka, Kyoto or other cities in west-central Japan. (To its credit, the U.S. embassy has stayed put.) [UPDATE 2011/04/02: I'm told that the French ambassador himself remained in Tokyo, with about 15 other staff. The German ambassador apparently did not. And more than three weeks after the quake, foreigners remain a very rare sight, even in expensive expat "ghettos" like the central Tokyo neighborhoods of Hiroo and Azabu.]

The stream of exaggeration and misinformation about the nuclear plant isn’t innocent. American business interests have a lot at stake in Fukushima – namely, whether the nuclear or the “clean coal” industry will be anointed as providing the “energy of the future” in the U.S. market. Considering that a “nuclear power expert” from D.C. told CNN a few days ago that boric acid was used to “eat stuff away” inside the reactor (actually, it’s used for absorbing neutrons emitted during fission chain reactions), you almost have to think that despite global warming, coal might not be so bad after all.

The more idealistic strain of Western commentary seeks to blame the Japanese government and TEPCO for lacking “transparency,” and continually second-guesses their decisions. A few “enlightened” Westerners suppose the reason is a Japanese cultural preference not to speak an unpleasant truth; they assume the information is known, but just too terrible to be revealed directly by Japanese folks. (In fact, the information is often unavailable, or difficult to obtain, such as about the numbers of dead and missing, or about the conditions inside some of the reactors, from whom the wave stole most monitoring devices.)

Others see something less benign. A BBC reporter on air this weekend noted that a TEPCO spokesman was “taken aback” when the reporter suggested that TEPCO was “to blame” for the Fukushima “disaster”; the reporter’s tone of voice made it clear he thought the spokesman was disingenuous to mention the magnitude of the quake and the height of the tsunami. Democracy Now interviewed a Japanese anti-nuclear activist who had long suspected that TEPCO was concealing problems about the “seismic safety” of the Fukushima plant, as if disclosure would have been sufficient in itself, or led to preparation for the extreme events of March 11. (Of course, she didn’t really want better disclosure or to improve the plant’s operational safety: rather, she preferred that it simply didn’t exist.)

A new locus classicus of this school of thought appeared in The New York Times recently under the headline ”Nuclear Rules in Japan Relied on Old Science”. According to Costas Synolakis at USC, Japanese regulators and engineers made “a cascade of stupid errors that led to the disaster.” “For whatever reasons – whether cultural, historical or simply financial – “ say the reporters, Japanese engineers ignored “relevant data that was virtually impossible to overlook by anyone in the field.”

Forget for the moment that the only sources mentioned by the Times of the impossible-to-overlook data are two draft (i.e., unpublished) papers, one by Synolakis and the other by a researcher at US Geological Survey, both men being characterized as “leading tsunami experts.” (Forget, too, the irony that a few paragraphs earlier in the story, a former TEPCO official laments, “We left it to the experts.”) To what conclusion does “new” science lead the American experts? That a 7.5 quake would have been enough to create a tsunami overtopping the 4-meter bluff at Fukushima. Not at all that there should have been a bluff higher than 15 meters, as would have been necessary to avoid an accident in this case.

The Times piece ends with what seems intended as a dramatic and chilling flourish: ” Two decades after Fukushima Daiichi came online, researchers poring through old records estimated that a quake known as Jogan had actually produced a tsunami that reached nearly one mile inland in an area just north of the plant. That tsunami struck in 869.” The smoking gun! No matter that the plant was already operating for 20 years, or that the tsunami was more than 1,100 years earlier, somewhat longer than the projected lifetime of a power plant. Those who should have known better, didn’t; and now, tragedy has struck.

[UPDATE 2011/04/02: The Times published a new installment in this narrative today: under a headline proclaiming "From Far Labs, a Vivid Picture Emerges of Japan Crisis," we're told, "For the clearest picture of what is happening at Japan’s Fukushima Daiichi nuclear power plant, talk to scientists thousands of miles away. // Thanks to the unfamiliar but sophisticated art of atomic [sic] forensics, experts around the world have been able to document the situation vividly.” From far away, but not in Japan. It turns out later in the story that the foreign experts’ insights are based on proprietary computer models (known in the trade as nuclear forensics), and aren’t “documented” by direct evidence at all.

Meanwhile, some in France have put a different twist on the story. The April 2011 issue of the left-leaning monthly Alternatives Économiques simply omits all reference to the loss of life, human suffering and destruction of communities caused by the March 11 tsunami. Instead, the cover is plastered with a view from above the Fukushima Daiichi plant, and the headline, “Energy, pollution, consumption: We need to change models!”. Within, the editors refer to “la catastrophe nucléaire” (@5) and “la catastrophe de Fukushima” (@53), even though to date no one has died from radiation or other problems at the plant. And in his back-page column, the magazine’s founder, Denis Clerc, asserts that the event “that was never supposed to have arrived … has arrived,” with “potential consequences … far beyond what one could have imagined: major radioactive fallout over dozens or hundreds of millions of people, the economic activity of the fourth [sic] largest industrial power in the world halted, thousands of square kilometers irradiated and made uninhabitable, and no doubt millions of victims” (@98). What are tens of thousands of actual deaths in the tsunami, or hundreds of thousands of actually displaced people, compared to “sans doute des millions de victimes”, especially when French eco-politics are at stake. Far be it from les chefs de la rédaction to entertain the advice of the UK’s chief science adviser, John Beddington, to the British Embassy here, that even in the worst case — meltdown and explosions at all of the reactors on the site — the impact would be far less than that of Chernobyl, and that “there is no reason from the point of view of radioactivity why you should not be able to continue to live quite happily in Tokyo.” How typically ennuyant. (See transcripts of Sir John’s conversations with the embassy on March 15 and March 25.)]

Western opinion seems compelled to unite the muckraker’s deontological zeal with the technocrat’s consequentialism. There’s no question that TEPCO and maybe others have committed, and continue to commit, bad actions. And maybe others didn’t use the most sophisticated risk assessment tools (unlike the quants at Lehman, the US Federal Reserve and elsewhere pre-2008, say). And truly, truly terrible things have happened. The fallacy is in believing that the bad actions, bad actors, and supposed “stupid errors” are to blame for the terrible things.

As my wife summarized it, “Our science was old, so we deserved what happened to us.” One has to wonder whether this sort of discourse would flourish if “cultural” factors were not so obvious. Would Americans be second-guessing say, the Swedes or Australians if such an accident were to occur in one of those countries? Does it occur to them that they are second-guessing a country with unique practical experience in dealing with the medical effects of radiation – courtesy of the United States Air Force?

The real cultural lesson here begins with a fundamental difference in the attitude toward “governance.”

Japanese political life is rife with scandals. But people can discriminate which ones should make them less confident in government, and which ones should make them less confident in particular individuals and entities. Japan has made great strides in the past, and is even now making great strides in cleaning up the mess left in the tsunami’s wake. Despite a universally-acknowledged, decades-long vacuum in competent leadership at the top political organs of government, most Japanese feel that their overall faith in government is warranted.

The current Western attitude toward government, on the other hand, is distrust. (Distrust of private utility companies is perhaps even more deeply ingrained.) Moreover, most Western media will only devote space to covering Japan – now Asia’s “loser,” compared to China – if the story is cute, bizarre, or can serve as an allegory of the West’s own anxieties. Since the aftermath of March 11 doesn’t fit into either of the first two categories, it must be adapted to the third. The archetype of the State-that-cannot-be-trusted, the Trickster government, is imposed on the narrative, and dominates it. (Or else the State as Fool, e.g. for its tragic ignorance of 1,100-year-old disasters.)

In the Touhoku disaster, these differences become entangled with differing attitudes toward nature as well. Japanese view nature as both beautiful and hostile. The risks of our life within it are acknowledged and accepted. There will be disasters, but with hard work, improvement can come step by step. The West, and America most of all, is more optimistic: the natural world is inherently perfect, or its imperfections manageable with science (the “newer,” the better, of course). So whatever the risks that people may take, if something goes wrong, someone must be to blame.

Japanese are prone to asserting that there isn’t any religion in their country. Americans pride themselves on its abundance in theirs. But the society that believes good governance is proof against acts of G-d is not at all the one those stereotypes suggest.

Image Credit: Author. The Iwate coastline, north from Kita-yamazaki, in better days.

[UPDATE: 2011/05/08: On 2011 May 5 -- late in the news-slow "Golden Week" national holiday period -- it was revealed that TEPCO might not have been so blameless as earlier thought in regards to the causation of the accident. Some news outlets (including TV Asahi and Tokyo Shumbun) revealed that when the Fukushima Dai-Ichi plant was being planned, the government had suggested that TEPCO use a site elevated 35 meters above sea level. For the sake of "cost efficiency," TEPCO excavated 25 meters of soil, bringing the plant's elevation down to 10 meters. The purpose was to lower recurring costs for using sea water as coolant, and for loading and unloading supplies, equipment, etc. from ships visiting the port built to service the plant. The tsunami that hit the plant was 15 meters high. I will discuss this more in a later post. Suffice it to say that while this affects the question of actual causation, it doesn't affect the current post's analysis of the Japanese reaction to the incident during March, based on what was publicly known about causation at the time.]

The panels must award each submitted work one of four grades, ranging from 4*, the top grade, for work whose “quality is world leading in terms of originality, significance and rigor,” to the humble 1*, “recognized nationally in terms of originality, significance, and rigour.” The anthropologist John Davis . . . has written of exercises such [...]]]> There is an excellent review essay by Simon Head on the future of British universities in the NYRB. It discusses the Strategic Plan of the Higher Education Funding Council for England (HEFCE), including the “Research Assessment Exercise (RAE) led every six or seven years.” As of 2008, panels of 10 to 20 specialists in 67 fields evaluate work during RAEs. As the author explains,

The panels must award each submitted work one of four grades, ranging from 4*, the top grade, for work whose “quality is world leading in terms of originality, significance and rigor,” to the humble 1*, “recognized nationally in terms of originality, significance, and rigour.” The anthropologist John Davis . . . has written of exercises such as the RAE that their “rituals are shallow because they do not penetrate to the core.”

I have yet to meet anyone who seriously believes that the RAE panels—underpaid, under pressure of time, and needing to sift through thousands of scholarly works—can possibly do justice to the tiny minority of work that really is “world leading in terms of originality, significance and rigour.” But to expect the panels to do this is to miss the point of the RAE. Its roots are in the corporate, not the academic, world. It is really a “quality control” exercise imposed on academics by politicians; and the RAE grades are simply the raw material for Key Performance Indicators [KPIs], which politicians and bureaucrats can then manipulate in order to show that academics are (or are not) providing value for taxpayers’ money.

Imagine “needing to sift through thousands of scholarly works” in short order; what a bizarre process. There are many critics of RAE; this essay is particularly worth reading because it connects the dots between corporate-speak and the new academic order:

Of all the management practices that have become central in US business schools and consulting firms in the past twenty years—among them are “Business Process Reengineering,” “Total Quality Management,” “Benchmarking,” and “Management by Objectives”—the one that has had the greatest impact on British academic life is among the most obscure, the “Balanced Scorecard” (BSC). On the seventy-fifth anniversary of the Harvard Business Review in 1997, its editors judged the BSC to be among the most influential management concepts of the journal’s lifetime. . . .

[T]he methodologies of the Balanced Scorecard focus heavily on the setting up, targeting, and measurement of statistical Key Performance Indicators (KPIs). Kaplan and Norton’s central insight has been that with the IT revolution and the coming of networked computer systems, it is now possible to expand the number and variety of KPIs well beyond the traditional corporate concern with quarterly financial indicators such as gross revenues, net profits, and return on investment. . . . Writing in January 2010, the British biochemist John Allen of the University of London told of how “I have had to learn a new and strange vocabulary of ‘performance indicators,’ ‘metrics,’ ‘indicators of esteem,’ ‘units of assessment,’ ‘impact’ and ‘impact factors.’”

Head notes that the “academic control regime with its KPIs will continue to apply as much to philosophy, ancient Greek, and Chinese history as it does to physics, chemistry, and academic medicine.” It’s easy to project the types of biases the system will create: don’t offend people who might be on the selection committee; focus work on what they can recognize as “world leading” (one wonders how many languages the assessors know); and, of course, avoid writing long-form books to instead concentrate on high-impact journal articles that any panelist can recognize as an advance in the field.

An Australian business school professor, Dennis Tourish, has criticized similar efforts in his country. In business schools, “world leading” appears to be what plays well in America:

The most lauded journals are based in the US, since this is the biggest market for management education and has first leader advantage. These reflect the positivist and functionalist orthodoxy that dominates the discipline there. They pay relatively little attention to such problems in management theory and practice as exploitative working conditions, race or ethics. Non-US academics who wish to publish in such outlets – and few succeed – overwhelmingly have to adapt to their norms, practices and theoretical priorities to do so. . . . [emphasis added]

Elite journals also have a rejection rate, typically, of over 90 per cent. For some reason, this is used to justify the quality of a journal. It, therefore, becomes a target for others, convinced that competitive advantage can be obtained by copying the behaviours of their rivals. To achieve this, desk rejection is increasingly common. Editors have become judge, jury and, mostly, executioner. So much for the safeguards of peer review. If you dodge the bullet of desk rejection an arduous obstacle course remains.

One British academic complains that “whether my article is any good, or advances scholarship in the field, are quickly becoming secondary issues.”

Head provocatively asks “Might the scale of the global financial crisis, driven by the targeting mania of the Balanced Scorecard and by automated management systems, shake the confidence of those who think that these very same methods should be applied throughout to the academy?” It’s a great question, for, as Amar Bhide has argued in A Call for Judgment, the “balanced scorecard” approach has wrought havoc in finance as decisionmakers increasingly distant from actual borrowers have set in place manipulable numerical standards that did little more than increase the volume of transactions (and, thereby, high-ranked managers’ bonuses). RAEs will drive a similar boom in back-scratching citation networks and point-scoring articles. But no matter how flawed a business method or personality may be, they seem to have an irresistible lure to academic managerialists: witness the ascension of Lord Browne to lead a British education review after his smashing job at BP.

There will always be a tension between the autonomy of the academic enterprise and the need to subject it to the demands of markets and states for measurable benchmarks of productivity and efficiency. But the recent British & Australian efforts to rationalize the research enterprise risk turning society into a monoculture, where everyone is striving for more points (be they measured in money, esteem, or power). It reminds me of Hobbes’s Leviathan, where he observes, of “A Restlesse Desire Of Power:”

I put for a generall inclination of all mankind, a perpetuall and restlesse desire of Power after power, that ceaseth onely in Death. And the cause of this, is not alwayes that a man hopes for a more intensive delight, than he has already attained to; or that he cannot be content with a moderate power: but because he cannot assure the power and means to live well, which he hath present, without the acquisition of more.

The assessment systems are ever-unstable rankings, not stable scores; one has to keep playing the game or get left behind. The bureaucratization of research “excellence” is becoming as much a power as a knowledge game: those who define what counts as KPIs can, in turn, define contributions to knowledge. Perhaps this process always went on, sotto voce, as individual scholars in individual studies decided what research programs to pursue, and what to let die; whom to cite, and whom to ignore. That old, quiet process had many biases and problems of its own. But it now appears charmingly decentralized and humane in comparison with the assembly line of assessment mobilized by RAEs and journal rankings.

Volume 58, Issue 3 (February 2011)

Articles

Comments

For me, the point made at the end of Amy’s introduction, about [...]]]> Congratulations to all involved on the publication of the A2K volume!  I think A2K is a provocative way of framing some contemporary debates around knowledge, information, community, property, intellectual or otherwise.  It feels like every week brings us some new shift which is being linked to A2K issues: Tunisia; Egypt; WikiLeaks to name just a few.  In many of these situations, what’s at stake is the way that knowledge is legally characterized as property: state property; private property etc.  And the ways in which our ability to reproduce and disseminate knowledge radically shifts our understanding of what an object or subject of knowledge is, bringing into being new publics and new kinds of archive.

For me, the point made at the end of Amy’s introduction, about the need to separate “knowledge” from “information” is a key one, in that if all knowledge is rendered as information and more specifically information stored and passed around in digital data networks, then knowledge has already been reified or turned into a commodity.  Perhaps I might even wonder if there was a more fundamental kind of access than “access to knowledge” that was at stake in contemporary struggles about intellectual property.  For example if communities and individuals are constituted by practices of copying, things like pleasure, affect, relation are all there, even “being”. It’s always possible to instrumentalize those things are forms of knowledge or “ethical know how” as Buddhist neurologist Francisco Varela termed it.  But it may be the case that something important gets lost if one overemphasizes knowledge at the expense of other forms of being in the world.

In my own work, I’ve emphasized the importance of practice as being important in itself, regardless of the “content”.  How do we defend particular practices of copying that may or may not be centered on knowledge production but which nonetheless are culturally significant? There’s an important body of work in critical theory, from Bataille and Blanchot through Agamben and Nancy on the importance of “nonknowledge” and “unworking” (désoeuvrement). These concepts can seem very abstract and removed from the concrete struggles of social activists, but I wonder to what degree they might be helpful in thinking and making spaces where openness and sharing prevail, spaces that can’t necessarily be defined in advance as public domain or commons  etc.

Religion-state relations have always been a staple topic in comparative constitutional law scholarship. This is, however, the first work that takes a broad and comprehensive overview of a not-so-new but largely ignored landscape which Ran Hirschl calls “constitutional theocracy.”  This term describes and at the same time, zeroes in on the basic issue that form part of every dilemma with regard to the proper relationship between religion and state.  How does one reconcile divine and man-made law?

In this counterintuitive, rich and fascinating book, Hirschl identifies the prevalence of a new form of political phenomenon called a constitutional theocracy which he situates at the intersection between a pure theocracy and a liberal constitutional democracy. According to him, [...]]]> Ran Hirschl, Constitutional Theocracy (Harvard University Press, 2010), pp.249, $45.00

Religion-state relations have always been a staple topic in comparative constitutional law scholarship. This is, however, the first work that takes a broad and comprehensive overview of a not-so-new but largely ignored landscape which Ran Hirschl calls “constitutional theocracy.”  This term describes and at the same time, zeroes in on the basic issue that form part of every dilemma with regard to the proper relationship between religion and state.  How does one reconcile divine and man-made law?

In this counterintuitive, rich and fascinating book, Hirschl identifies the prevalence of a new form of political phenomenon called a constitutional theocracy which he situates at the intersection between a pure theocracy and a liberal constitutional democracy. According to him, constitutional theocracy has four elements: first, it adheres to elements of modern constitutionalism including judicial review, second, there is usually an established state religion, third, the religion and its corresponding texts are considered sources of state legislation, and lastly, parallel religious tribunals exist alongside the civil adjudication system.

The conventional understanding is that we should view this development with caution. Hirschl identifies that view with local secular elites who see religion with disdain, both for its seeming irrationality and its propensity for unpredictability. Paradoxically, the solution that secular elites came up with is to embrace this development. To constitutionally incorporate religious symbols and directives is ultimately the most prudent and rational response to the pressures brought about by the rise of political religion. For one, it facilitates the deployment of various means of political control, such as delegation and cooptation. To get from one to the other, Hirschl’s previous work on the origins and consequences of new constitutionalism offers a clue.

In Towards Juristocracy, Hirschl advanced the hegemonic preservation thesis in which threatened political elites who seek to preserve or enhance their hegemony empowered the judiciary to decide even highly political matters in order to insulate policy-making processes from the vicissitudes of democratic politics. One can see similar themes at play in his new book, particularly the divide between secular elites and the religious masses, and the peculiar role of constitutional courts in managing political hot potatoes, which, in this setting, refers to religion.

Religion, however, is a special kind of political hot potato. For one, it goes right at the heart of the collective existential narrative. There cannot be a single formula then on how to contain it without taking into account the historical and political accidents that are peculiar to particular societies. No matter what form that formula may take however, the result is that bringing religion within the constitutional ambit achieves the twin goals of appealing to popular pressures but at the same time keeping those pressures in check by ensuring state involvement in its interpretation, and consequently, bringing it under state control and supervision.

Drawing from a broad array of interdisciplinary sources, Hirschl deftly surveys a wide-ranging trend on containing the radical possibilities of a constitutionally-enshrined religion. The case studies in this book are divided largely between two camps: the first focuses on how constitutional courts contain religious law in the largely religion-suffused world of Egypt, Kuwait, Pakistan, Malaysia, Nigeria, Israel and Turkey while the second focuses on how courts function as secularizing agents in the pluralistic liberal societies of Western Europe, Latin America, South Africa and Canada. The wealth of detailed and updated information in these chapters alone makes the book worth the read. And if these examples are not enough, Hirschl’s claim also gains currency in what is happening right now in Iraq. As Haider Hamoudi recently observed, the Federal Supreme Court of Iraq has yet to issue any ruling which utilizes the non-repugnancy clause present in Article 2 of the Iraqi Constitution which mandates that laws cannot contradict the tenets of the Sharia. Hamoudi argues that Iraqis appear to have reached a consensus that the judiciary is not the best institution equipped to address questions of whether a law is “Islamic” enough, consigning Article 2 to symbolic oblivion. But this proves Hirschl’s point – Article 2 was included because it had such a broad appeal but the secular elites who are in charge of the Iraqi government at present would rather not resort to it because it does not serve their interests at the moment, and especially because they still have a strong base of power in the legislature.

Another interesting part of the book is the author’s exposition on the parallels between constitutional law and religious law in the last chapter. Enumerating the surprising affinities between the two, Hirschl posits that constitutionalism and religion often fail to get along not because they are different but because they are similar. He injects a realist perspective on these clashes between the two realms, claiming that the divide between secular and religious powers is not motivated by ideological or existential worldviews alone, if even principally, but also by material factors, such as economics and politics. The implication of this is that by broadening the frame of analysis beyond the seemingly insurmountable clash of basic philosophies, bridging the divide does not seem so impossible after all. One can draw on human tools even as one tries to address the challenges posed by divine imperatives.

While this is a very persuasive realist account of comparative constitutional law and politics, one must also wonder about some of its premises, chief of which is that there is such a clear-cut divide between secular elites and religious masses. The Iranian example, not discussed in the book but which has all the elements of a constitutional theocracy, seems to show the opposite.  At the very least, the Iranian elite are a mix of religious and secular. Moreover, if this was all power and class, one should also be able to explain how religion gets enshrined in the constitution in the first place. The elites might resort to tools of constitutionalism to keep theocracy in check successfully when it is already established, but his thesis does not explain why they cannot prevent its rise in the first place.

These questions however do not detract from the value of the book. It is very well-researched and offers an original and bold thesis. It should be a must-read for enthusiasts and students not only of comparative constitutional law but also religion and politics in general.

_____________________________________________________________________

Anna Su is a currently an SJD candidate at Harvard Law School.

There is a current debate concerning whether the standard of college preparedness should be written into the structures of education law.  The college preparedness argument has been rising to the fore due to the revisions to the current version of the Elementary and Secondary Education Act-popularly known as the No Child Left Behind Act (NCLBA)-proposed in the Obama Administration’s “Blue Print for Reform.”  President Obama’s suggested revisions would replace the current NCLBA math, English language arts, and science proficiency standards as a means of evaluating schools with various other measurements, including whether students at schools are being prepared to be “college and career ready.”   The proposed change to the legal federal assessment standard is driven by the administration’s view that post-secondary education is essential [...]]]>

The Pathway of Preparedness

There is a current debate concerning whether the standard of college preparedness should be written into the structures of education law.  The college preparedness argument has been rising to the fore due to the revisions to the current version of the Elementary and Secondary Education Act-popularly known as the No Child Left Behind Act (NCLBA)-proposed in the Obama Administration’s “Blue Print for Reform.”  President Obama’s suggested revisions would replace the current NCLBA math, English language arts, and science proficiency standards as a means of evaluating schools with various other measurements, including whether students at schools are being prepared to be “college and career ready.”   The proposed change to the legal federal assessment standard is driven by the administration’s view that post-secondary education is essential to individual, communal, and national competitiveness in the Twenty-First Century. President Obama has announced the goal of regaining the global lead in the proportion of the citizenry obtaining post-secondary degrees by 2020.  In the realm of education, law is increasingly being relied upon to create incentives, structures and values which have traditionally been thought to be in the realm of private production.  The traditional conception of the public school is properly being recast from a provider of information and skill, to the central institution in communal renewal.

However, the federal focus on college preparedness, as with many educational initiatives of the Obama administration, has received criticism.  Critics of this emphasis argue that college preparedness is a one size fits all category which will inevitably stigmatize students without the ability or proclivity to attend college, and thus contribute to greater levels of failure and higher school drop out rates due to psychological pressures.   Such critics contend that there are many solid middle class trade careers of value which can be viable options for students without the skill level or desire for college.   However, defenders of college preparedness are often concerned with a specific context-the inadequacy of our educational systems to address the needs of dis-empowered minority groups, especially in the urban context. College preparedness champions often believe that critics do not fully understand and/or acknowledge the causation of the extreme racial disparities in educational outcomes.

The debate over college preparedness can be seen as one iteration of the continuing philosophical divide between those who tout the importance of “high expectations” and incentives for greater minority education performance, and those who voice concern that such high expectations do not sufficiently account for the context and communal challenges of under-performing minority groups.   Critics of the “high expectations” movement, however, misapprehend the cultural and psychological impact of persistent high expectations college preparedness messaging for the following reasons:

1) The argument that such messaging will create stigmatizing inferiority complexes and lead to students dropping out of school is dubious.  The same argument is often made concerning standardized assessment.  Yet the national graduate rate for blacks and Latinos is near 50%, and has been appallingly low long before college preparedness became a hot catchphrase, and before the growth of the high stakes testing movement in the 1990′s.

2)  There is a plethora of research indicating that resilience is one of the strongest factors leading to the avoidance of high risk behavior in youth, and allowing for long term educational success.  High expectations critics are concerned about the stigmatic implications and stress caused by challenging standards.  But the high expectations camp views the life of most low-income minority students as endemically filled with daily disappointment, hardship and set-back, and believes that with the proper educational support, structure and expectations, minority youth can overcome and build skills to deal with the disappointment which is an inevitable aspect of living in the lower segments of an inequitable society.

Moreover, those critical of college preparedness standards and the “high expectations” movement perhaps too easily divide the challenges of the inequalities of the black and Latino educational landscape into those who make it, and those who are at great risk of criminal involvement, incarceration, high school drop-out, and other indicators of extreme and overt societal exclusion.  However, unfortunately, the injustice of educational inequities persists throughout all realms of society.  For example, analysis of National Assessment of Educational Progress (NAEP) skills diagnostic exams reveals discrepancies of foundational educational academic ability between blacks and Latinos on one hand, and whites and Asians on the other, even when factors such as class and family structure are controlled.   Thus, to support a high expectations college preparedness standard is not to espouse an unreasonably elitist doctrine, but is, to the contrary, to recognize that our society has accepted different and lower standards for blacks and Latinos.  Thus, while four year college graduation rates for Asians and and whites  remain around 70%, similar graduation rates for black and Latinos remain around 40%.  And to use a professional example which serves as a pipeline for leadership, the proportional law school enrollment of blacks and most Latino groups has been lowering over the past 15 years, and blacks make up only 4% and Latino’s 3% of the United State Bar, while blacks constitute 12% and Latino’s 15% of the general population.

Although black and Latino post-secondary enrollment has recently been rising, almost all of such matriculation increase has been in community colleges and for-profit trade colleges and universities.  In this regard President Obama’s proposed “college and career ready” legal standard may be dangerously malleable.  The President envisions community colleges as contributing greatly to the increase in college degrees and as an important aspect of building greater opportunity in dis-empowered minority communities.  Thus, the President has recently hosted the White House Summit on Community Colleges to build momentum for this idea.  Yet, community colleges only graduate 20% of all those who matriculate, and the average community college graduate earns only a few more thousand dollars per year than the average high school graduate.   And the greatest growth in minority post secondary enrollment has been in for-profit colleges.  Yet, for-profit education companies such as Kaplan, The University of Phoenix, DeVry, and Corinthian Colleges are becoming increasingly known for operating educational institutions which produce degrees which are unable to pay for the debt accrued for such degrees.  Moreover, Congress, The Department of Education, and the Government Accountability Office have greatly increased scrutiny of such institutions due to increasing evidence that they specifically target high-risk minorities in order to benefit from the federal financial aid that such minorities receive once enrolled.  Community colleges and for-profit universities have become low-standard dumping grounds in which black and Latino students are funnelled for educational services that are not preparing them to compete.

This is not to say that there is no need for post-secondary education outside of the four year context.  Education law certainly must account for a wide variety of skill level, and the need for, and importance of, a technically trained workforce.  However, the adoption of “college and career ready” standards must create clear incentives and accountability for all schools to prepare an adequate number of their graduates to compete at four year colleges.   Our society has accepted, tolerated, and perpetuated lower standards for blacks and Latinos, and those serving blacks and Latinos, in all levels of education.  Education law and reform is increasingly recognizing the dangers of such low standards, and is attempting to create structures through competition, incentive and accountability to raise such standards.  Increasingly schools, colleges and universities are being positioned as the central institutions for rebuilding community and achieving greater societal equality.  As this trend continues, the law must ensure that such standards are sufficiently high to create competitive opportunity for those from dis-empowered minority groups.

H. L. A. Hart’s The Concept of Law (1961) revitalized the field of jurisprudence in much the same way Rawls’ A Theory of Justice gave new impetus to political philosophy a decade after. A Concept of Law presented a new theory of law blending arguments from the philosophy of language and previous versions of positivism. (Rawls himself claimed to have gotten the idea of proceduralism from Hart. See A Theory of Justice, p. 48) But as is often the case, a theory needs an adversary to reveal its deepest implications. This adversary came first with Lon Fuller’s “Positivism and Fidelity to Law”, a rebuttal to Hart’s essay “Positivism and the Separation of Law and [...]]]> Joseph Raz, Between Authority and Interpretation (Oxford University Press, 2009), 424 pp.

H. L. A. Hart’s The Concept of Law (1961) revitalized the field of jurisprudence in much the same way Rawls’ A Theory of Justice gave new impetus to political philosophy a decade after. A Concept of Law presented a new theory of law blending arguments from the philosophy of language and previous versions of positivism. (Rawls himself claimed to have gotten the idea of proceduralism from Hart. See A Theory of Justice, p. 48) But as is often the case, a theory needs an adversary to reveal its deepest implications. This adversary came first with Lon Fuller’s “Positivism and Fidelity to Law”, a rebuttal to Hart’s essay “Positivism and the Separation of Law and Morals” (both 1958), and then with a series of essays by Ronald Dworkin published successively as Taking Rights Seriously (1977) and Law’s Empire (1986).

Hart’s positivism argues roughly that law and morality are at least separate in the sense that law cannot be reduced to morality. This means that we can study law scientifically without getting involved in disputes about substantive questions concerning the good. But since it is clear that in order to be obeyed, laws ought not merely to rely on force, laws require some source of authority which can only come through deliberation. Such deliberation, however, is need not be moral but can be thought of as merely normative. Hart holds that the authority of the law is provided by rules of recognition: these are secondary or meta-rules which specify the authority of law derived from particular social practices. A rule of recognition, for instance, is that, in the United States, laws are passed by congress according to a certain procedure. This specifies the way the law receives its authority but not what the law is (which is a matter of primary rules).

Much of the debate surrounding Hart’s theory has been about whether the rule of recognition could indeed do without moral support, that is, whether the separation of law and morality could be maintained. Dworkin, as Fuller had argued before him, contended that the rule of recognition could not be normative without also being moral because, in the case of legal interpretation for instance, the law will need to be extended to deal with difficult cases (a point Hart vacillated on). Extending the law can only be done through recourse to extra-legal principles of controversial political morality or policy, not already specified by law. So law is not free standing after all.

Prompted by Dworkin’s critique of Hart and positivism in general, there emerged roughly two types of responses within the positivist camp. The one, exemplified most forcefully by Jules Coleman, contended that positivism could accommodate Dworkin’s criticism by claiming that controversial moral problems could form part of the law. This position has become known as inclusive legal positivism. The other approach, the one championed most systematically by Joseph Raz (a student of Hart’s), argues that law need not seek a backstop in morality but can indeed be freestanding, as Hart maintained. This position came to be known as exclusive legal positivism.

The collection of essays under review here (dating from 1994-2006) continues the arguments Raz has made since the 70s, adding new arguments and revising old ones, may of which deal with the above problematic. The essays fall generally under the heading of law and morality, and of interpretation. For space reasons, this review will deal chiefly with the former. Raz’s papers, as does his previous work, have important implications not only for the philosophy of law but also for arguments in contemporary meta-ethics. They often take up question of normativity per se, of which law is only one instance.

One way to draw a distinction between the aspirations of natural law theory and exclusive legal positivism (henceforth just ‘positivist’) is to say that positivism is concerned not with the ground of law but with its function. That is to say, the question of legitimacy, the question of the ultimate justification of a legal system, is a question that arises not in the course of normal business but only for the philosopher or at times of great social turmoil. For the positivist, law is first and foremost a matter of getting things done within the polity. Efficiency is thus a central concern for the positivist. (It is perhaps a sign of the times that the limit case of positivism no longer commands quite the importance in contemporary jurisprudence as it did in the 50s when Hart and Fuller sparred about the question of whether Nazi law was really law.)

In the broadest of philosophical language, for the positivist, law is thus a matter of the experience of law while for the natural lawyer it is a matter, among other things, of also having a theory of the justification of law. Raz puts this point by saying that he is skeptical that the moral theories presented by, among others, Kant and Rawls, can be operationalized. (119) That is to say that a theory of morality will not be sufficient to motivate action. Rather, on Raz’s view, action precedes theory and the question of what law is, whether law in fact does have the authority is claims for itself, only becomes relevant when ambiguity about law threatens to undermine law’s authority. For the positivist, then, the thing that is most salient about the law is how well is gives people reasons for behaving as they should within the polity. Raz’s  is thus an instrumental view of law which privileges practical concerns over theoretical and philosophical ones.

A central contribution to this debate comes in Raz’s service conception of law. This approach was originally presented in The Morality of Freedom (1986) and is here revisited to accommodate objections. The service conception holds that the way law helps people get things done is by providing authority or motivation for them to comply with those laws which the society has evolved over time in order to facilitate getting along. Law gives people reasons to do things they were in doubt about being obligated to do. In this sense it has the power, championed by all positivists (from Bentham to Holmes and Hart), of making human interaction predictable. If you are wonder how fast it is safe to drive (or how fast others will be driving), all you need do is look at the sign indicating the speed limit. Someone has made that decision for you and by that very fact, you (and everyone else) are now obligated to obey it. In this sense law regulates behavior and facilitates interaction in a classical liberal vein: laws are understood as purely negative.

When challenges to a law’s authority do arise, these are settled, Raz argues, by meeting two conditions. First, the authority must be better at providing reasons for an action that apply to the person anyway than she would be able to provide for herself. Such might be the case when an expert can determine better how fast it is safe to drive than I can and it is also my interest to drive safely. Secondly, it must be better to conform to the laws as dictated by experts than to conform to my own judgment. (136-37) We might paraphrase these two conditions by pointing out that the first condition is a condition of effectiveness while the second is one of independence. That is, legal authority is legitimate only if it is both efficient and if I accept that this efficiency is worth relinquishing my own judgments in favor of those of the law. But relinquishing my power of judgment is still my choice and I can revoke it if things turn sour. Law thus functions as a type of heuristic which gives us quick answers to frequently asked normative questions. It must do so in an easily ascertainable and expedient way.

But how does the law deal with difficult cases, with cases that don’t seem to lend themselves to easy adjudication. Raz’s answer is, first, that laws evolve. Raz argues that by adopting a law, the society, through its representatives in government, can transform a (perhaps) controversial idea into a non-controversial one. Thus, by becoming a law, a reason for some becomes, ipso facto, a reason for all. (108) That is, the disagreement about what speed it is reasonable to drive becomes, by being specified by a law, an argument about the reasonableness not of the speed to drive, but about the reasonableness of the law itself. (109) It is not that the disagreement has disappeared but it has been given a shape. The disagreement has been formalized such that we can agree on what it would take to answer the moral question: either support the law or seek to repeal it. However, in the mean time, all will have to comply with it. The moral disagreement has, in a sense, been softened. This is how exclusive positivism keeps moral disputes at bay. The judicial process is a process which, through its very nature, is able to turn moral controversy into normative agreement. The law resolves disputes by pre-empting them. (110)

However, that cannot be the complete story, for the mere fact of legislation will only partially lay to rest the dispute. Some people will still be opposed to the law and seek to undo it. Raz, perhaps rather optimistically, believes that the rest of the moral controversy which lives on in the law can be overcome not through the law’s backing by the force of the state, but rather pragmatically, by its contribution to the successful life of the polis. Thus it is not power but success that determines the success of the law. This points again to the liberal ideas which underlie Raz’s jurisprudence. Raz, like Mill, believes deeply that the constitutional process itself will be able to iron out the kinks in our society. He shares with Rawls and Hart something like the idea that we can have a free-standing (non-moral) consensus about what is essential to our society. Laws are one of the ways this consensus is achieved.

Finally, let me draw out one more consequence from the above. The parliamentary system for creating laws can, on Raz’s view, as we have seen neutralize moral disagreement. It does so taking up controversial topics and turning them into law. The appeal of positivism is that through the process of legislation controversial issues are given resolutions which are universally normatively valid. Moral controversies can be deflated and, rather than being denied, be turned to the advantage of everyone. Law thus provides an answer to the question of how I can angrily object to a candidate for office and yet, after she is elected, seek fully to comply with the laws she is instrumental in passing. Positivism claims that to the natural lawyer, this transformation must remain a mystery. For the positivist, however, such a transformation merely points to the fact that social convention is, in fact, stronger than individual moral reflection.

______________________________________________________________________

Stefan Bird-Pollan is an assistant professor of philosophy at the University of Kentucky.

Projecting future mores is a difficult task. Consider this prophecy from 1918, authored by sociologist Herbert Stewart:

It may turn out that the life of idiotic ostentation makes humanity quite as despicable as the life of a drunkard, and that the image of God is less defaced in a saloon of the Bowery than in those jeweled birthday parties [...]]]> In the Washington Post, Anthony Appiah takes up this topic. He mentions the US prison system, the treatment of animals in things like CAFOs, and isolation of the elderly. The article reminded me of a recent podcast with William Gibson, where the renowned futurist would predict only that future generations would “regard us with contempt” for all the opportunities we missed.

Projecting future mores is a difficult task. Consider this prophecy from 1918, authored by sociologist Herbert Stewart:

It may turn out that the life of idiotic ostentation makes humanity quite as despicable as the life of a drunkard, and that the image of God is less defaced in a saloon of the Bowery than in those jeweled birthday parties for dogs with which the New York Four Hundred disgust all civilized mankind. That much of this is, in the face of the world’s needs, an enormity for which all defense is mere shamelessness no conscientious person will deny. . . . Take the advertisement of a present-day ‘millionaire’s hotel,’ with the assurance it gives of ‘the very last word in sumptuousness.’ Is this not one of the features of our time upon which we all trust that a wiser age will look back, not only with condemnation, but with a sense of nausea?

We’re still waiting for that wiser age to arrive.

This was what I saw in ten minutes of Chatroulette, an intriguing web site that anyone with a webcam can try. I wanted to try it and blog about it after reading an interesting article in the New Yorker on its teenage Russian founder. You turn on your webcam and are randomly paired with someone else on the site with their webcam on, to whom you can chat vocally or by typing. Either party [...]]]> A Hispanic teenager listening to music through headphones, a masturbating man, 3 young caucasian women (probably American), two young middle eastern men dressed in army fatigues and a child with a kafiah covering his face shouting something in Arabic and smiling, another masturbating man, 3 japanese young women.

This was what I saw in ten minutes of Chatroulette, an intriguing web site that anyone with a webcam can try. I wanted to try it and blog about it after reading an interesting article in the New Yorker on its teenage Russian founder. You turn on your webcam and are randomly paired with someone else on the site with their webcam on, to whom you can chat vocally or by typing. Either party can push a button that spins the wheel again at any time to be connected with a new partner, and there is no penalty for doing so.

Perhaps 31-year-old law professors are not the favored species in this realm, but I was “nexted” almost immediately in each of the cases except the middle eastern men at whom I started laughing and they laughed back as well. At some point, though, I felt uncomfortable enough myself that I ended the interaction.

Chatroulette is only the newest and strangest instantiation of a phenomenon I’ve been thinking about – virtual friendship. Can one be friends with someone that one has never met, and what kinds of benefits do this form of friendship offer over or to compliment non-virtual friendship? In recently watching Julie and Julia, I was struck by a scene where Julia meets up with the woman, Avis, she has been writing throughout the film.  We discover that the two women have never actually met in person despite being extremely close; they have just been pen pals for years.

The disadvantages of virtual friendship are pretty straightforward, but what might the advantages be? Total honesty if it retains an air of anonymity or removal from one’s social circle? The ability to compose oneself (like a piece of music), that is present a very specific slice of oneself? Many people I’ve talked to of a certain age (usually under 35, those who have had socializing technologies for some period of their youth) have had a virtual friend or two at some point.  These relationships, however, do not seem very long-lived, certainly not like the decade long correspondence of Avid and Julia. Is that just because our social circles are thicker or there is more competing stimuli than in earlier periods?

To add a legal angle on chatroulette, after seeing Robin Wilson present her paper on Sex Play In Virtual Worlds at a conference this summer, I wondered whether the masturbating men on the site might be subject to criminal liability in some jurisdictions if some of their viewers turned out to be children.  Robin (she’ll correct me if I have this wrong) was of the view that on Second Life or other virtual environments that don’t even involve actual images of actual people, under existing doctrine in some states adults can be criminally liable for sexually suggestive remarks and virtual activities.  Under existing doctrine this is true even if those minors represent themselves as adults, the perpetrator has a good faith belief they are adults, and even if the service has an 18+ policy (even if enforced by something like requiring a credit card).  If that’s right, the comparably less virtual and less regulated domain of chatroulette would seem to be full of potential criminal liability.  I am neither a criminal law nor a cyberlaw scholar so I will be curious what those with more expertise think….

I thought it might be useful to try and sort out some of these different meanings (for those looking for a more formal discussion with citations, this old paper of mine may be useful). This is my own classification (though it builds off work by my colleague Michael Sandel among others). I will be interested to see if others think one should add to or reformulate the taxonomy.  It is also worth emphasizing at the threshold that [...]]]> I’ve found both in published work and in classroom and workshop discourse that people often mean different things when they talk about commodification concerns as an argument for blocked exchanges – e.g., forbidding the sale of kidneys from live donors, prostitution, the sale of surrogacy services, etc.

I thought it might be useful to try and sort out some of these different meanings (for those looking for a more formal discussion with citations, this old paper of mine may be useful). This is my own classification (though it builds off work by my colleague Michael Sandel among others). I will be interested to see if others think one should add to or reformulate the taxonomy.  It is also worth emphasizing at the threshold that while money is the focus of most anti-commodificationist arguments that for each version barter can also give rise to the same objections.

At the top-level we can divide commodification into three large categories (the 3 C’s if you will): Coercion, Corruption, and Crowding-Out. For the purposes of this post my goal is not to evaluate these arguments, just to parse them better.

(1) Coercion:

(a) Voluntariness. This concern, also known as exploitation, is framed as concern about the voluntariness of the transaction in a way that demands more than minimal notions of consent.  It is the fear that only the poor will sell organs or that only destitute women will consent to act as commercial surrogates, and argues for blocking the exchange to protect those populations. It thus depends on some empirical facts about the population the argument seeks to protect; one occasionally seeks proposals to limit organ or surrogacy services sales to people above a certain income bracket to blunt the concern.  It also depends on views about the validity of blocking an exchange due to these somewhat paternalistic concerns.  Thus, sometimes it is argued that it is hypocritical to block an exchange preventing a badly-off person from improving their station in life unless we are also committed to a redistributive plan that makes them as well-off as they would be if the exchange was permitted.   It is important to understand that this objection is not focused on a claim that the buyer and seller are giving up unequally (in amount, see below regarding mismatches of type) valued things, the “raw deal” problem that parallels one strand of substantive unconscionability doctrine in contracts; instead, it is about the seller’s poverty and their susceptibility towards “an offer you can’t refuse” even if the good is valued fairly.  While one solution to some forms of unconscionability may be to re-write the terms to be more favorable to the seller, adding extra compensation here would worsen not improve the exchange from the point of view of this objection.

(b) Access: Somewhat less frequently the objection is made almost in reverse. While the voluntariness version treats the exchange as representing a “bad” that the poorer party in the exchange suffers in one respect involuntarily, the access variant instead views the exchange as representing a “good” that only the better-off party has access to because of the existence of the market.  For example, the sale of “premium” eggs is something only the wealthy will have access to, or the during Civil War the practice of commutation where one could pay three hundred dollars to avoid serving in the draft was only available to wealthier stratas of society. This objection also depends on notions of background unjust inequalities in resource distribution to get going.

Price caps may be a partial solution to either form of the coercion objection because they will lower the price to make it not-so-attractive as to make us question voluntariness (the “offer you can’t refuse”) and also move the purchase of the good into the range of access for more of the population.  It is only a partial solution because it usually results in shortages.  One could also imagine “mixed” systems that do better at addressing one concern than the other — so the state could be the only permitted buyer of organs and then distribute them through the current transplant system rather than willingness to pay — this would go a long way to blunting the access concern, but not necessarily the voluntariness one (and indeed might make the corruption objection below even worse).

(2) Corruption: A second version of the objection is that a market exchange “corrupts,” “taints,” or “denigrates” the things being exchanged — for instance, the argument that prostitution devalues women’s bodies by attaching a price tag to their sexuality.  Cass Sunstein offers a good starting formulation of the corruption argument: an exchange is corrupting when “the relevant goods cannot be aligned along a single metric without doing violence to our considered judgments about how these goods are best characterized.”  Incommensurability and Kinds of Valuation: Some Applications in Law, in INCOMMENSURABILITY, INCOMPARABILITY, AND PRACTICAL REASON 234, 238 (Ruth Chang ed., 1997).  More specifically, one might suggest that there are various “spheres” (sometimes called “modes”) of valuation, and an exchange is corrupting when it ignores the differences between these spheres of valuation and forces us to value all goods in the same way.  For example, exchanging children for money corrupts the value of children because money and children belong in different spheres of valuation.

As I have described in depth, that requires both a theory of sphere differentiation and a theory of what it is about exchanges that “does violence,” neither of which are that easy to articulate.  For present purposes, though, I want to merely distinguish versions of the argument along two dimensions.

(a) Intrinsic vs. Consequentialist: One variant of the argument is “intrinsic”; for example, the statement “prostitution devalues women’s sexuality” is a proposition about an inherent incompatibility between an object and a mode of valuation.  A different variant of this argument is what might be called the “consequentialist” corruption argument, for example that allowing the sale of babies WILL cause us to change the way we value children in our society in a way that will produce deleterious consequences.  Although the two are often used interchangeably, these two versions are quite different.  The consequentialist but not the intrinsic version heavily depends on empirical premises about how likely experience-modification (to use a term of Scott Altman’s) will occur, and the possibility that legal or cultural interventions might prevent it.  When the corruption objection takes its intrinsic form, by contrast, such policy solutions are inapposite because whatever one does to mitigate the bad consequences of the exchange, even if the exchange is made in secret or is not widespread, the exchange still denigrates the good.  It is as if the evil that the objection pushes against occurs and is consummated in the moment of exchange, irrespective of the consequences that follow.

(b) Conventionalist vs. Essentialist: Particularly within the intrinsic version of corruption argument (but also on the consequentialist version) the departure point is that there is an exchange between goods in two modes of valuation that does violence to the way we think the goods are properly valued.   Thus, we need a method for determining how goods are properly valued.  There are roughly two large camps – conventionalist and essentialist.  Conventionalists believe that the proper sphere of valuation depends on prevailing societal norms of a particular group, at a particular time.  Michael Walzer’s approach in Spheres of Justice is emblematic.  Herodotus has a famous passage in the Histories along these lines

“During [King] Darius’ reign, he invited some Greeks who were present to a conference, and asked them how much money it would take for them to be prepared to eat the corpses of their fathers; they replied that they would not do that for any amount of money. Next, Darius summoned some members of the Indian tribe known as Callatiae, who eat their parents, and asked them in the presence of the Greeks . . . how much money it would take for them to be willing to cremate their fathers’ corpses; they cried out in horror and told him not to say such appalling things. . . . [C]ustom is king of all.” HERODOTUS, THE HISTORIES bk. III, ch. 38, at 185–86 (Robin Waterfield trans., 1998).

The approach faces interesting questions regarding exchanges between societies, concerns about whether some of these norms (e.g., regarding women’s sexuality) stem from prior relationships of subordination, and the possibility that we can “re-educate” norms to avoid these kinds of conflicts.

By contrast, on the essentialist view, one looks to the timeless essence or nature of a good to determine how to value it, as well as which exchanges accord with that mode of valuation.  This is no easy task, especially when one recognizes that not only the exchange of money but barter can produce problematically corrupting exchanges.  If the problem is the exchange of things that have radically different spheres (not amounts) of valuation, then the philosophical battleground will be in defining how wide the various spheres are and the extent to which they overlap in a way that convincingly follows from the essence of the good itself.

(3) Crowding-Out: This theory, associated with Titmuss’ work on the blood supply, suggests that when markets enter the domain they push out altruistic giving.  The next step of the argument usually suggests that the result is less supply of the good in question (i.e., fewer people donate blood in regimes where sale is allowed), or at least that there results a diminution in supply of quality versions of the good – one claim associated with Titmuss’ argument was that blood sale regimes caused individuals to fake their health status and that bad blood entered the system as a result, although this critique is contingent on a lack of effective means of screening.  When the claim is instead that the market merely pushes away altruistic conceptions of the good, I think that is more properly described as the corruption argument above.

Again, I’d welcome comments on the taxonomy.

I may blog a little bit later about some other of the marvelous things I learned over these two days, but for now I wanted to concentrate on some [...]]]> Hypotheticals are a ubiquitous pedagogical tool in both the law and philosophy classrooms. I have recently been thinking about the different functions they serve and whether they are well-suited for the weight we give them. These reflections were prompted by a conference on “Moral Biology,” hosted by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School (which I co-direct), in cooperation with The Project on Law and Mind Sciences at Harvard Law School, the Gruter Institute, the Harvard Program on Ethics and Health, and the MacArthur Law and Neuroscience Project.

I may blog a little bit later about some other of the marvelous things I learned over these two days, but for now I wanted to concentrate on some thoughts that stemmed from a public portion of the conference that can be seen here, involving Josh Greene from Harvard’s Psychology Department, William Fitzpatrick from the University of Rochester’s Philosophy Department, Adina Roskies from Dartmouth’s Philosophy Department, Walter Sinnott-Armstrong from Duke’s Philosophy Department, and Tim Scanlon, from Harvard’s philosophy department.

At around the 43 to 50 minute mark in the video, Josh discusses Trolley Problems (which ask participants a thought experiment about whether to divert a trolley from one track to another with many versions of the hypothetical) and an experiment done on them by Fiery Cushman (and a collaborator, Switzgable I believe, I could not find the actual paper) in Josh’s lab.  In the experiment, before being asked whether they would endorse the principle of double effect, ethicists with PhDs were asked to reason about variants of the Trolley problem (switch vs. footbridge) presented in different orders. The experiment found that if one varied the order in which the versions were presented (but always presented all of them,) ethicists reached different conclusions about whether they would endorse the principle. [This is Josh's description in the video, again if anyone can find the paper he is discussing I will try and like to that].  The result is surprising in that it appears even those with PhD training in ethics are susceptible to order effects in reasoning about a very fundamental issue.

As Josh concedes, and others (in the panel and in written pieces discussing his work emphasize) the fact that these ordering effects occur is not itself fatal to the enterprise of philosophical analysis using intuitions. It depends on further views about how one uses these kinds of intuitions in the analysis. For present purposes, though, I want to partially side-step that question in favor of thinking about the law classroom, and how this experiment might should us a little more careful about the way we use hypotheticals.

It seems to me that there are two main ways I use hypotheticals in class (in fact there are many subtler distinctions in ways, so this is admittedly crude but hopefully sufficient for present purposes). The first is of a realist or at least Hart-Kelsen/Core-Penumbra approach: I begin with what seems like a clear and defensible rule.  I then present easy cases on both sides. I then vary the facts a little at a time to produce a hard case, and the student learns how even seemingly clear and easy to apply rules breakdown in hard cases.

A second usage, though, is more coherentist. I start by asking students for a rule in one case that they are fairly sure of. I then examine whether the principle behind the rule is really one they want to defend by applying it in several new cases and testing it against their intuitions about how those cases should come out. These intuitions put pressure on their original rule, causing them to want to state it more precisely, add caveats, or perhaps chuck it altogether.

The experiment Josh discusses is perfectly consistent with the realist/hard case approach, indeed Jerome Frank would have loved it and easily assimilated it into what the judge had for breakfast.  What, however, should it mean for the more coherentist hypothetical usage?  There, the approach seems to tell student that if they reason about enough cases and compare their initial intuitions against many hypothetical cases, they will come close to what they think the “right” answer is, or at least rule out “wrong” answers.  Do results of this kind of experiment threaten that usage?  I am very curious what others think…

I actually first started thinking about this a few months ago. A wonderful midwest law school in a smaller city invited me to a conference and arranged to have a student pick me up at the airport. This was unusually gracious, and I appreciated it, but a funny thing happened on the ride. I asked the student about the city, and what it was like to live there, etc. The student at one point [...]]]> Like many, I was glued to the blogosphere waiting for the decision in Perry v. Schwarzenegger yesterday, the Prop 8 decision. One seemingly superficial issue I have been interested in is how the court would refer to the class to which the plaintiffs belonged: as “gay” men and women or homosexuals?

I actually first started thinking about this a few months ago. A wonderful midwest law school in a smaller city invited me to a conference and arranged to have a student pick me up at the airport. This was unusually gracious, and I appreciated it, but a funny thing happened on the ride. I asked the student about the city, and what it was like to live there, etc. The student at one point said to me: “Oh, and we have a really vibrant homosexual community.”

I was a little amused that he focused on this element of the city, though perhaps something I said had primed him, or this was just a testament to the perceived role of gays in the rise of the creative classes and a city’s hipness factor. What surprised me the most, though, was actually his language — his use of the term “homosexual” in a positive way. My own anecdotal experience is that people use the term “homosexual” when they want to ascribe negative connotations, and “gay” when they want a more neutral or positive ones. A quick (and very unscientific) google search of the terms “homosexual marriage” and “gay marriage” this morning seems to confirm this.

On this view it is unsurprising, then, that Judge Walker in the Perry opinion repeatedly refers to the plaintiffs and their group as “gays and lesbians”.  What is more surprising is that I expected I would find a split in usage between Justice Kennedy and Scalia’s majority and dissenting opinions in Lawrence v. Texas, with “homosexual” being dominant in the Scalia’s opinion.  Interestingly, both opinions use “homosexual.”

So here are a few questions I am thinking about: Was my initial instinct that which term to use reflects a political valence correct? Does it instead reflect something else? Geography (think of the student driving me)? Age? A change in time over which term is more acceptable, a little bit like the way the term “handicapped” has given way to “disabled” to “people with disabilities”?  Is the usage of “homosexual” by people who do not want to expand rights for the group a subtle attempt to bring the “sex” (in the intercourse sense) back into people’s minds?  Which word do you use in the classroom? Would Lesbian, Gay, and Bisexual students be offended by the term “homosexual,” and if so, is that a good reason not to use it?

Volume 57, Issue 5 (June 2010)

Articles