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Category: Law and Humanities

Post on Legal Scholarship

Yale announced today that Robert Post will succeed Harold Koh as Dean of its Law School. I am thrilled to hear the news. I read Post’s book Constitutional Domains: Democracy, Management, Community while I was in college, and it helped convince me to go to law school. During my recent visit at Yale, Post struck me as one of the most intellectually interesting and friendly faculty members. Virtually every student I talked to who worked with him described him as an outstanding mentor.

Many of our readers might be interested in Post’s take on legal scholarship.
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What Is Empathy? Obama’s Philosophy of Law and the Next Supreme Court Justice

heart1aThere has been a lot of discussion on what President Obama meant when he said he wanted to choose a person who would judge with “empathy” for the U.S. Supreme Court.   When articulating his decision to vote against Chief Justice John Roberts, Obama noted that 95 percent of cases would be relatively straightforward where most justices would agree, but “what matters on the Supreme Court is those 5 precent of cases that are truly difficult.”  Obama further explained:

In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.

Over at the Volokh Conspiracy, Orin Kerr has a very thought-provoking post examining what Obama means by “empathy.”  He writes:

What makes the issue interesting, I think, is that the broad divide over the role of ambiguity in legal decisionmaking is quite real, and yet not often explicitly drawn out. But to those who take the first approach to legal ambiguity, Obama’s view of empathy is just asking for a judge who is lawless. From that perspective, Obama wants a judge who will ignore the law: He wants a judge who might look at the precedents and text, weigh the merits as 70/30, and then vote for the weaker “30″ side only because that furthers his political agenda. To those who see legal ambiguity as inviting a careful judicial weighing — indeed, who think that the critical role of a judge is to engage in that careful judicial weighing — emphasizing the need for “empathy” is an invitation to replace law with politics.

Orin’s post reminds me of the debate between H.L.A. Hart and Ronald Dworkin.

In The Concept of Law, H.L.A. Hart famously observed:

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Lawrence Friedman and the History of Privacy

I recently uploaded to SSRN a short review essay of Lawrence Friedman’s “Guarding Life’s Dark Secrets: Legal and Social Controls over Reputation, Propriety and Privacy (Stanford 2007).  No book is perfect, but this one is probably the best book on the history of privacy law that I have read.

Here’s the abstract of my review:

A short review essay of Lawrence Friedman’s “Guarding Life’s Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy” (Stanford Press 2007). The essay argues that Friedman tells a nuanced and compelling story of the rise and fall of the “Victorian Compromise,” a series of interlocking legal doctrines protecting the reputations of elites around the turn of the twentieth century. “Dark Secrets” undeniably advances our understanding of both the genesis of privacy law and the relationships between law and culture in the Gilded Age. As a work of legal history, it is an instant classic – a must-read for anyone interested in privacy law. But although Dark Secrets is first-rate legal history, it is less successful in its latter chapters when Friedman shifts his focus from the past to the present. The limits of Friedman’s social criticism raise important questions about the ability of history alone to provide answers to social problems in our modern, networked information society.

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Forgiving the Ex, Part II

In a post last week, I discussed the negative effects of persistent anger against a former spouse, including the harm to their children. I suggested that maybe lawmakers need to encourage divorced parents to forgive each other. As I write this sentence, I realize how naïve and simplistic that sounds. How are lawmakers supposed to help people forgive a former spouse who abused, betrayed, or neglected them? Doesn’t encouraging people to forgive suggest that their anger is unwarranted? Doesn’t it suggest that the injurer’s actions were justified or that one is condoning or excusing her wrongful and unjust behavior? Well, no. Forgiveness does not mean that the forgiver does not have a right to be angry. To the contrary, the person who forgives chooses to “abandon [her] right to resentment . . . toward one who unjustly injured [her] while fostering the undeserved qualities of compassion, generosity and even love toward [the injurer].” Enright et al. (1999).

When asked if they have considered forgiving someone who has hurt them deeply, people often reply that the other person “doesn’t deserve forgiveness.” That may be so, but one does not forgive for the injurer’s benefit, but for one’s own benefit and possibly, for the benefits to one’s children. As I discussed in my earlier post, forgiveness may reduce anger and its negative effects on one’s physical and psychological health and parenting abilities. It might also reduce some of the destructive behaviors some parents engage in after divorce such as interfering with the other parent’s access to the children or disparaging him or her in front of the children. It might also enable some former spouses to cooperate as co-parents in their children’s upbringing. The question is not why divorced parents should forgive, but rather how can they be encouraged to do so?

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The Bard of the Financial Crisis

shakespeare.jpgOver the weekend, I re-read A Merchant of Venice, and I was struck by the fact that Shakespeare manages to include in the play virtually every element of the current financial crisis. Scene one begins with a discussion of risk assessment, and Antonio’s belief that he has managed to tame the vagaries of commercial fate through diversification. Asked by Salarino if he “Is sad to think upon his merchandise” (I.i.40), Antonio responds:

Believe me, no. I thank my fortune for it

My ventures are not in one bottom trusted,

Nor to one place; nor is my whole estate

Upon the fortune of this present year.

Therefore my merchandise makes me not sad. (I.i.41-45)

Having ignored the problem of fat tails and black swans, Antonio decides to engage in a bit of dodgy finance. He borrows in the wholesale market from Shylock under terms that appear favorable, but have a huge downside in the unlikely event of his default. Antonio, of course, is unconcerned. From his point of view he is getting cheap money by taking on what seems like an extremely remote risk. He then takes these borrowed funds and uses them to make what can only be described as a no doc, subprime loan. Bassiano wants money for a speculative venture — the wooing “In Belmont [of] a lady richly left” (I.i.161) — and Antonio agrees, in effect renting out his credit rating:

Try what my credit in Venice can do;

That shall be racked even to the uttermost

To furnish thee to Belmont to fair Portia.

Go presently inquire, and so will I,

Where money is; and I no question make

To have it of my trust or for my sake. (I.i.180-185)

Shylock, for his part, does not approve of the loose monetary policy in Venice, which he rightly blames on wild lending practices, such as Antonio’s loans:

How like a fawning publican he looks.

I hate him for he is a Christian;

But more, for what is low simplicity,

He lends out money gratis and brings down

The rate of usance here with us in Venice. (I.iii.38-42)

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Robert Tsai’s Eloquence and Reason

tsai-eloquence.jpgProfessor Robert Tsai (American University, Washington College of Law), who previously guest blogged here in January 2006, has just published Eloquence and Reason: Creating a First Amendment Culture (Yale University Press, Nov. 2008). According to the back cover blurb:

This provocative book presents a theory of the First Amendment’s development. During the twentieth century, Americans gained trust in its commitments, turned the First Amendment into an instrument for social progress, and exercised their rhetorical freedom to create a common language of rights. Robert L. Tsai explains that the guarantees of the First Amendment have become part of a governing culture and nationwide priority. Examining the rhetorical tactics of activists, presidents, and lawyers, he illustrates how committed citizens seek to promote or destabilize a convergence in constitutional ideas. Eloquence and Reason reveals the social and institutional processes through which foundational ideas are generated and defends a cultural role for the courts.

I’ve read a few chapters of this book earlier on, and I highly recommend it. Robert Tsai’s work is always interesting and thought-provoking. He writes beautifully, and he demonstrates with great insight how rhetoric influences constitutional law.

From a blurb on the back cover by Professor Mark Tushnet (Harvard Law School): “A provocative meditation on the ways the metaphors used in constitutional doctrine empower, limit, create, and recreate the public over which the written Constitution is said to assert authority. Intriguing case studies arise from the civil rights movement of the 1960s, the Christian Right of the 1980s, and the attacks on Jehovah’s Witnesses in the 1940s.”

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Harnessing the Wisdom of Crowds to Spot Spin

According to Business Week, this month marks the birth of Spinspotter, a website that lets users identify and discuss phrases in news stories that smack of bias. The website owner, a former Microsoft executive, will generate income by selling advertisements connected to the bias-infected new stories identified by users. For instance, Toyota might want to hang Prius ads around the phrase “gas guzzler.” Or Microsoft and Apple might want to buy ad space next to a news article that deems Windows Vista a “bug-filled failure.”

This is an intriguing, and mischevious, combination–users expose media bias (or its gullibility to spin doctors) while spin doctors append ads to win back or capture those cynical eyeballs. Given the site’s construction around key phrases, bias accomplished through silence may be missed. So often, media outlets emphasize the positive in politicians and industry such that the lack of criticism reveals a bias worthy of the SpinSpot treatment. But if crowds are indeed wise, they may find a way to highlight those bias-filled silences.

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Politicians and Script Writers

speech.jpgMuch has been made of the fact that large parts of Sarah Palin’s speech were already pre-written before she was even chosen as the VP candidate. According to the Washington Post:

Not anticipating that McCain would choose a woman as his running mate, the speech that was prepared in advance was “very masculine,” according to campaign manager Rick Davis, and “we had to start from scratch.”

It is common in today’s political landscape for speech writers to pen most of the words in a politician’s speeches — both for Republicans and Democrats. What always irks me is all the commentary about the speeches. The commentators — on all sides of the political spectrum — are saying how much Palin’s speech reveals about her. But are we really learning much about Palin from the speech if she didn’t write a large chunk of it?

If the words are written by others, what exactly does a speech tell us? Why do we pretend as though the words are really coming from the particular politician? If the skill is the ability to read convincingly from the teleprompter, or to deliver the lines with gusto and confidence, then isn’t this more suited for an actor or actress?

One thing that always irks me is when quotes from movies are attributed to particular actors, as if Robert DeNiro or Julia Roberts originated a particular line in the same way that Shakespeare or Einstein created their own words. We all know that actors and actresses are just vessels for delivering the words of others. We wouldn’t attribute quotes to the person who read a particular line for an audio book on CD. Why do we do so when an actor or actress delivers a line in a movie? Or when a singer sings a song written by another?

Suppose we found out that Lincoln had a speech writer write the Gettysburg Address. Would our opinion of him change if we learned that his eloquent words were not really his own, and that he merely delivered the lines in a particularly compelling way?

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Franz Kafka’s Last Wishes and the Kafka Myths

kafka-franz.jpgProfessor Lior Strahilevitz (U. Chicago Law School) has an interesting post about Franz Kafka’s papers. The famous story about Kafka’s papers is that Kafka asked his friend, Max Brod, to burn them after his death. Although Kafka had published a few works during his lifetime, a great many stories, parables, letters, and diary entries were unpublished, as were Kafka’s two great book masterpieces, The Trial and The Castle. Brod refused to burn them. Instead, he published them, and Kafka would go on to achieve enormous posthumous fame as one of the greatest writers of the twentieth century.

Should Brod have carried out Kafka’s wishes? Lior argues yes:

I have written, and continue to believe, that Brod should have destroyed Kafka’s unpublished works, as per Kafka’s instructions, notwithstanding the immense literary value of the work. Kafka had legitimate privacy and artistic integrity interests in the works that should have been respected, and as their creator he was in the best position to decide upon their fate.

Controversies over the Kafka papers have recently reemerged. The New York Times describes a new issue over Kafka’s papers:

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Tocqueville on Lawyers

I always find certain sections of Democracy in America thought-provoking, and thought I’d just share a bit from a part on lawyers today:

The government of democracy is favorable to the political power of lawyers; for when the wealthy, the noble, and the prince are excluded from the government, the lawyers take possession of it, in their own right, as it were, since they are the only men of information and sagacity, beyond the sphere of the people, who can be the object of the popular choice. If, then, they are led by their tastes towards the aristocracy and the prince, they are brought in contact with the people by their interests. They like the government of democracy without participating in its propensities and without imitating its weaknesses; whence they derive a twofold authority from it and over it.

The people in democratic states do not mistrust the members of the legal profession, because it is known that they are interested to serve the popular cause; and the people listen to them without irritation, because they do not attribute to them any sinister designs. The lawyers do not, indeed, wish to overthrow the institutions of democracy, but they constantly endeavor to turn it away from its real direction by means that are foreign to its nature. Lawyers belong to the people by birth and interest, and to the aristocracy by habit and taste; they may be looked upon as the connecting link between the two great classes of society.

The whole section is a nice introduction to the tensions between the rule of law and democracy. And if you find Tocqueville’s methodology too loose or unscientific, check out Jon Elster, Patterns of causal analysis in Tocqueville’s Democracy in America, 3 Rationality and Society 277 (1990).

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