Category: Legal Theory

In Memoriam: Clifford Geertz

geertz.jpgI recently noticed an obituary for Clifford Geertz on PTDR. Law & the humanities have had an uneasy relationship for some time now, but one of the few humanists with an undisputed place in the canon was “anthropologist” Clifford Geertz. I use the scare quotes because Geertz appeared to me to be far more than a type of social scientist, but a scholar whose deep sense of the connections between belief and desire, knowledge and will, could reinvigorate whole fields.

For a taste of the possibilities, check out this review of Posner’s book Catastrophe in the NYRB:

Posner largely handles the problem of estimating danger via sheer postulation—weird and (one assumes, unintentionally) madcap burlesque. “Suppose the cost of extinction of the human race…can be very conservatively estimated at 600 trillion dollars [and there is] a 1 in 10 million annual probability of a strangelet disaster.”

Geertz could look at the fashions and fads of the modern academy with the same mixture of sympathy and detachment he brought to the customs of Berbers or Balinese villagers. This long essay on a “life of learning” can be inspirational to anyone who has chosen “science as a vocation.” After college, I was trapped in a very frustrating graduate program for a while, and I remember taking great comfort in the thought that someone like Geertz managed to transcend disciplinary boundaries while still finding a “home” in the academy.

Geertz offered us a vision of humanities informing law in the deepest sense, by showing us the inextricable intertwining of description and judgment (or, as lawyers often experience, fact and law). I particularly like this quote from Geertz’s essay, Deep Play in a Balinese Cockfight:

Any expressive form works (when it works) by disarranging semantic contexts in such a way that properties conventionally ascribed to certain things are unconventionally ascribed to others, which are then seen actually to possess them. To call the wind a cripple, as Stevens does, to fix tone and manipulate timbre, as Schoenberg does, or, closer to our case, to picture an art critic as a dissolute bear, as Hogarth does, is to cross conceptual wires; the established conjunctions between objects and their qualities are altered and phenomena—fall weather, melodic shape, or cultural journalism—are clothed in signifiers which normally point to other referents. Similarly, to connect—and connect, and connect—the collision of roosters with the divisiveness of status is to invite a transfer of perceptions from the former to the latter, a transfer which is at once a description and a judgment [emphasis added].

Some scholars have worked out the implications of thoughts like these with great power and precision–such as Balkin (and Levinson’s) work on Law and Music, or Bill Eskridge’s work on Gadamer and statutory interpretation, or some cyberscholars on metaphorical descriptions of cyberspace (like Cohen and Hunter). But I think there is still a rich vein of work to be inspired by Geertz’s classic elaborations of the idea that “man is an animal suspended in webs of significance he himself has spun.”


William of Ockham Goes to Commercial Law Class

Ockham.jpgA lot of legal argument consists of mastering the reasons for and against various recurring dualisms in the law. For example, there is the well-worn dichotomy between rules and standards. Rules provide ex ante certainty and easy resolution of disputes ex post. Standards reduce the incentives for parties to engage in undesirable but rule-skirting behavior ex ante and provide greater substantive fairness ex post. Another example is substance vs. procedure. For example, in administrative or corporate law should judges scrutinize the substance of the decisions that were made, or should they confine themselves to looking only at the procedures used to reach the decision?

A key to understanding the U.C.C., and with it commercial law, is another distinction that students have a harder time wrapping their minds around. I call it the divide between realism and nominalism. During the middle ages scholastic philosophers debated whether or not universals had actual existence independent of any particular instance of the universal, or whether ultimately all that existed was the particulars themselves. The U.C.C. makes a lot more sense, I believe, once you recognize that it in so far as it is possible, it is aggressively committed to nominalism.

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The Fog of Admin: Beliefs about Beliefs

fog.jpgI’ve just started teaching “standards of review” in my administrative law course, and as admin maven Richard Murphy has noted, pinning down the doctrine can feel like “lassoing smoke.” Even the top scholars in the field appear to disagree on basic premises. I think the nub of the difficulty has to do with the “meta-” ness of the enterprise. When a court tries to determine if agency action is “arbitrary and capricious,” it’s often assessing the head of the agency’s beliefs about an ALJ’s beliefs about the parties’ beliefs about the matter at issue.

Obviously this problem occurs elsewhere in law, and there are many deference standards that try to address it. Perhaps in line with Lawrence Rosen’s work on the cultural influence of law, I’m beginning to think some of these standards are filtering into academic and public discourse. One can “map” some controversies as boiling down to points about the deference certain beliefs are owed. For example,

1. Belief: A majority of Americans believe in God.

2. Belief about belief: Some academics criticize this belief. (Dawkins’s The God Delusion; Dennett’s Brights.)

3. Belief about belief about belief: Commentators criticize the critics. (Eagleton on Dawkins; Wieseltier on Dennett)

4. Belief about belief about belief about belief: Others intervene. (Leiter on Wieseltier on Dennett).

The debate can be a little dizzying, but as Eagleton notes, it’s often necessary to “repudiate the brand of mealy-mouthed liberalism which believes that one has to respect other people’s silly or obnoxious ideas just because they are other people’s.” Nevertheless, Eagleton cautions how projects like Dawkins’ risk making a category mistake about the phenomenon they attempt to discredit:

[T]o claim that science and religion pose different questions to the world is . . . to claim that while faith, rather like love, must involve factual knowledge, it is not reducible to it. For my claim to love you to be coherent, I must be able to explain what it is about you that justifies it; but my bank manager might agree with my dewy-eyed description of you without being in love with you himself.

In other words, in a pluralistic society, we’re all obliged to develop the capacity to respect varieties of personal knowledge. . . . without, of course, falling into radical skepticism. I think the difficulty of that balance mirrors the difficulty of developing any coherent account of deference doctrine in admin (which, as Murphy notes, is “a complex brew of improbable fictions and proceduralism”).

Photo Credit: Flickr/B. Jones.

Net Neutrality: Law, Money, and Culture


Bill Moyers enters the fray in the raging legal debate over net neutrality tonight, with a documentary on PBS. The Wu/Yoo debate on the topic gets the central issues on the table: should we permit dominant ISP’s (like Verizon and Comcast) to discriminate among the “bits” on their networks, giving more rapid service to preferred sites? I’ve offered some tentative thoughts on the matter, and these continue in that vein.

The net neutrality battle may offer us a classic efficiency-equity tradeoff. Imagine a world where everything on the internet came to you four times faster, but dominant ISP’s could cut deals with certain sites that made their content come 10 times faster. On many classic economic accounts, that would be Pareto-optimal–everyone’s better off. As some very smart people (like Philip Weiser) have claimed, that differential pricing could finally lead to revenue levels that would remedy the US’s unacceptably slow pace of getting people connected to broadband (and faster) networks.

But on the other hand, what about the competitive disadvantage of those unable to cut the deals? Compare this article reprinted in the Boston Pilot (the Boston Roman Catholic Archdiocese’s official paper) touting net neutrality and this piece from Brookings-AEI disparaging it as a form of “price control.” The economists just tend to miss the cultural importance of media consolidation. That’s what convinced me that the stakes are ultimately a “battle for mindshare” (to use Hannibal Travis’s evocative metaphor), and can’t be cast in simple economic terms.

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Must District Judges Give Reasons?

gavel.jpgJonathan Adler highlights this astonishing Ninth Circuit opinion on the alleged misconduct of now-embattled District Judge Manuel Real. Some interesting facets of the case (previously blogged about here, here, and elsewhere). First, dissents matter. It is more than tempting to attribute the current push to impeach Judge Real to Judge Kozinski’s harsh dissent from the panel’s order exonerating him on the misconduct charge. Second, the case raises a neat issue which relates to what I’ve been writing this summer. While the overall facts of the case are well worth reading in the original, if you’ve ten or twenty minutes, I want to focus briefly on part of Judge Kozinski’s charge against Real: that he failed to explain the reasoning for a controversial order.

The basic story is that Judge Real withdrew the petition in a pending bankruptcy case and stayed a state-court judgement evicting a woman who was appearing before his court in a criminal matter. Both orders were entered apparently sua sponte, or at least without hearing the evicting party’s arguments. According to Kozinski, Judge Real “gave no reasons, cited no authority, made no reference to a motion or other petition, imposed no bond, balanced no equities. The two orders [the withdraw and stay] were a raw exercise of judicial power…” In a subsequent hearing, Kozinski continued, “we find the following unilluminating exchange”:

The Court: Defendants’ motion to dismiss is denied, and the motion for lifting of the stay is denied . . .”

Attorney for Evicting Party: May I ask the reasons, your Honor?

The Court: Just because I said it, Counsel.

Kozinski wrote:

I could stop right here and have no trouble concluding that the judge committed misconduct. [Not only was there a failure of the adversary process . . . but also] a statement of reasons for the decision, reliance on legal authority. These niceties of orderly procedure are not designed merely to ensure fairness to the litigants and a correct application of the law . . . they lend legitimacy to the judicial process by ensuring that judicial action is-and is seen to be-based on law, not the judge’s caprice . . . [And later, Kozinski exclaims] Throughout these lengthy proceedings, the judge has offered nothing at all to justify his actions-not a case, not a statute, not a bankruptcy treatise, not a law review article, not a student note, not even a blawg. [DH: Check out the order of authority!]

So here’s the issue: in the ordinary case, to what extent are judges required to explain themselves?

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The Meaning of “Well Settled Law”

Lawyers use the phrase liberally in their briefs; judges sprinkle their opinions with it. But hardly anyone agrees what it means. The phrase: “well settled law.” One of the most interesting exchanges occurred during the Alito hearings over this very phrase:

Ms. Feinstein asked whether Judge Alito did not agree that Roe “was well settled in court.”

He said, “It depends on what one means by the term ‘well settled.'”

This was followed by an extended back-and-forth and careful parsing of what the phrase may or may not mean to Alito.

It would be a mistake to see Alito’s equivocation as merely a product of confusion over terminology. Indeed, Alito’s hesitation to accord Roe the status of “well settled law”–he finally said only that it must be accorded “respect” as “very important precedent”–cannot be understood in an internally coherent way.

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On Conservative and Liberal Labels

My most recent post has engendered some discussion on a point tangential to its purpose, but important nonetheless — how to determine whether a particular Justice (or, I imagine, judge or individual for that matter) is conservative or liberal, or somewhere in between. Can we agree in any significant percentage of cases that an individual belongs at a particular place on that spectrum?

I think the answer is no, because such categorization depends on context, and each of us subjectively chooses the context.

Focusing on categorizing judges, now, each of us, I imagine, wants to see conservative and liberal as labels indicating the direction in which the given judge deviates from the ideal. Thus Judge Bork sees originalists not as “conservatives,” but as simply applying the law, and I am sure others on the left are the mirror image. If you’re an originalist, therefore, a conservative is one who deviates from originalism to achieve conservative results, and a liberal is one who deviates from originalism to achieve liberal results.

But because we have no agreement on what is the proper way to interpret legal texts, including constitutions, any labeling system dependent on evaluating a judge’s agreement with the “correct” results is not likely to be effective in general conversation. There are two alternatives I see. First, you could make the label purely relative, being explicit about context. In that manner we could quite sensibly (if over-simplistically) refer to the most conservative Justice on a certain issue, or even the most conservative Justice overall on the current Court.

Second, the inquiry could be more self-consciously empirical, in that a Justice will be scaled liberal or conserrvative based on the percentage of cases in which he decides cases in a liberal or conservative direction. Thus, we would rank Justice Ginsburg as 60% liberal, and Justice Scalia as 34% so. Such an effort has the promise of being relatively objective, but even there there are problems with determining how liberal one must be to be a “liberal” and so forth. For example, Epstein & Segal (from whom I got those figures, see p. 126) characterize Justice Ginsburg as “moderately liberal for voting liberal 60% of the time, but characterize Justice Scalia as “very conservative” and “extremely conservative” for voting conservative 66% of the time.

These debates are played out in plenty of areas besides the judiciary, and rarely do we agree on resolutions because we rarely agree on the proper context. Is academia liberal, for example, because such an overwhelming majority votes Democratic? Or is it conservative because taking a world view American academia is less liberal than much of the rest of the world?


Legal Realism and Fashion Consulting: A Misunderstood Relation?

dresssuccess.jpgSome years ago a colleague gave me a copy of John Molloy’s 1975 book Dress for Success. Perhaps the fact that he asked me whether I own an iron contains a clue to his message; I’m not sure.

I found it buried in a box of books I unpacked recently and began to read the chapter “For Lawyers: How to Dress Up Your Case and Win Jurors and Judges.” It contains the following sage commentary on the behavior of judges:

Before the urban judge you should avoid the Ivy League tie. You should avoid any sign of ostentation. You should avoid any look that is with-it, chic or “in.” Urban judges tend to be quite ticklish about their newfound socioeconomic positions, even if they’ve held them for some time, and often look upon anyone coming into their courtroom as a threat to them personally. Anybody who doesn’t treat their courtrroms with respect, and that means anyone who dresses in a manner that they find is unbecoming, will be dealt with harshly. Their response may well be subconscious; no judge will ever tell you that he’s ruling against you because of your smartass tie, but believe me, many of them will.

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Why Blawging is Bad For Law

Hello Folks.

I’ve joined Co-Op today from Prawfsblawg. This is by my count the fifth time I’ve introduced myself at a new blog-home. That makes me a bit of an itinerant blogger. It is also pretty ironic, because I generally think that the institution of blogging/blawging threatens to fundamentally disrupt some very valuable aspects of how law is currently organized, administered and transmitted.

To take an example I posted on recently on Prawfs, consider what happens to the common law when the primary sources which form its skeleton — judicial opinions – become the fodder for the entertainment of an audience of millions of eager web-surfers. Yes, I’m talking about you, Howard. It isn’t that How Appealing, and like blawgs, are bad. Indeed, I visit Howard’s blawg every day, and it is an invaluable resource. It is that Howard’s popularity, and the increasing linking of opinions by the MSM-online, provides incentives for judges to write witty, funny, entertaining, short, glib opinions, instead of careful, boring, technically precise ones. That is, to the extent that lower-court judges want to be noticed and profiled by (kind of silly) websites like these, it makes sense to be more like Scalia and Douglas than Souter and Rutledge.

Some might protest: surely federal judges don’t care much about having their opinions widely publicized? They have life tenure, and they care only about not being reversed. But the motivations of federal judges seem to me to be an open question, and I think that if I could somehow chart the growth of funny and media friendly opinions, we’d see a small bump beginning with the introduction of WL and a huge increase in the last five years.

So, why is this bad?

To find out, you’ll have to visit here again, as I will be retuning to this topic soon.


Spinning Straw into Gold

LawBooks.jpgI was initially attracted to the law because I thought that the books looked cool. My father is an art historian and my mother was an adjunct English professor before she became a tech writer. My grandfathers were a rancher and a farmer respectively. I did not come from a legal background. Nevertheless, my first year of college I wrote a paper that required that I venture into the law library, and I was entranced by the look and feel of old copies of the U.S. Reports.

There was something about the heavy mustiness of the books, the calfskin bindings, and the eighteenth- and nineteenth-century type faces that captured my imagination. The books just looked like they contained “lore” and “learning.” One of the great pleasures of my clerkship was going through my judge’s personal collection of rare legal books: a first edition of Blackstone, Yearbooks printed in the 17th and 16th centuries, a Restoration-era printing of the record in Charles I’s trial, and so on.

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