Exam Time.

As the academic year comes to a close, the calendar treats those of us in the educational lark to our semi-annual blend of relief and alarm. (My commiserations to those on the quarter system!) Each passing day brings our students closer both to the respite of holidays and the horror of another exam. Until recently, I didn't appreciate that professors quaffed a similarly pungent brew. The flurry of review sessions, exam composition, exam grading, recommendations, faculty meetings, &c., seems to reach a violent crescendo before the halls fall silent.

For diversion during this tumult, I turn to this kind of thing:

The British (and Irish) seem partial to peddling things with comedy, while Americans apparently prefer the more earnest pitch of upward mobility. And while American soap operas are filled with beautiful people living successful lives, the British gobble up decades of bleak dramas featuring unemployed people kippering themselves in the cigarette smoke of their local pub. But enough pop transatlantic sociology.

What really fascinates me at these busy times is how some of our colleagues in the field manage to sustain an incredible pace of productivity throughout the year: a feat that requires the unusual talent of staying focused through frenzied times such as these as well as during the wide open spaces of mid-summer.

So I've attempted to make something of a ludicrously unscientific study of what a week in the life of a super-productive academic looks like. I've asked a few people who strike me as fitting that description to describe how they combine the central academic requirement of scholarly output with all the peripheral administrative and personal demands of this business. I'll report my findings in the coming few posts.

Posted by William Birdthistle at 11:05 PM | Comments (0) | TrackBack

Judges Citing Literature

Professor Todd Henderson (U. Chicago Law School) has posted an interesting article on SSRN, Citing Fiction, 11 Green Bag 2d 171 (2008). He provides many illuminating facts about judges citing literary works:

A comprehensive survey of over 2 million federal appellate opinions over the past 100 years reveals only 543 identifiable citations or references to works of fiction. Of these, less than half – 236 – were employed rhetorically to evoke an emotional response in the reader. This type of citation, which I’ll call a "literary" citation, occurs in only about 1 out of every 10,000 federal appellate opinions.

Todd's data is quite interesting, but I disagree with how he frames his essay and some of the conclusions he draws. Todd writes:

[A] central claim of the law and literature movement (which I'll refer to as "the Movement") is that reading fiction can provide judges with knowledge about how to solve real world problems. For example, Professor Martha Nussbaum writes that "the novel constructs a paradigm of a style of ethical reasoning … in which we get potentially universalizable concrete prescriptions by bringing a general idea of human flourishing to bear on a concrete situation." If this is true and the Movement has had a significant effect on law, one would expect to see an increase in the use of literature in judicial opinions, since judges routinely cite to works that have a direct impact on their decisionmaking. We should also expect to see works cited for the reasons the Movement wants them to be – to reveal that the fiction has evoked feelings of pity and empathy for the less fortunate and given a voice to traditionally marginalized segments of society. Neither of these things is true.

Unpacking this paragraph, I see the following claims: (1) whether the law and literature movement "has had a significant effect on law" can be assessed by instances when literature has a "direct impact" on judicial decisionmaking; (2) "central" claims of the law and literature movement are that literature makes judges more ethical or empathetic and that literature provides judges with "knowledge about how to solve real world problems"; and (3) citations will demonstrate whether literature has a "direct impact" on a judge's decisionmaking.

Let's begin with the first claim: Whether the law and literature movement "has had a significant effect on law" can be assessed by instances when literature has a "direct impact" on judicial decisionmaking.

This claim begins with an assumption that having a significant effect should be measured by having a direct impact. But it is unclear why the significant effect must be a direct impact rather than an indirect one. Reading Orwell's 1984 might help shape how judges perceive surveillance and government power. Will it directly affect their decisions? Probably not, if direct effects mean that but for reading Orwell's book, a judge inclined to decide a case one way will now decide it another way. But it might have helped shaped a judge's mindset along with other works of literature and a number of other social and cultural experiences. It might have an indirect effect. The difficulty is that looking for direct impact is far too demanding a requirement.

On to the second claim: "Central" claims of the law and literature movement are that literature makes judges more ethical or empathetic and that literature provides judges with "knowledge about how to solve real world problems"

I quarrel with the argument that a "central" claim of the law and literature movement is to make judges more empathetic or ethical, or to give them "knowledge about how to solve real world problems." I don't think that literature necessarily makes one more moral, ethical, or empathetic. Nor do I think that literature provides specific "solutions" to problems. Literature can provide a critique or commentary about the law. It can develop thinking, reasoning, and interpretive skills. It can provide insight into jurisprudential questions, and it can help people see between the lines, be more nuanced, recognize ambiguity, see different interpretations, and so on.

While there are some in the law and literature movement who have claimed that literature makes lawyers more ethical or empathetic, most have not made such claims. Todd's quote from Martha Nussbaum doesn't suggest she makes these claims. Instead, Nussbaum seems to be saying that literature can contain ethical teachings and that it embodies them in concrete situations. I agree with this. The fact that literature can illustrate an ethical prescription by embodying it in concrete situations doesn't mean that the reader will necessarily agree with the ethical prescription. Moreover, much literature is not dogmatic about any particular ethical or moral view -- it often demonstrates the ambiguities and tensions in various ideas. Literature is not the same as a philosophical or political argument. It is often more suggestive and ambiguous.

Finally, it's time to turn to the third claim that I've parsed out of Todd's essay: Citations will demonstrate whether literature has a "direct impact" on a judge's decisionmaking.

The legal academy has a fetish over citations. Because it is so fun and easy to play around with Westlaw, we can now readily do studies about citations. This data is quite interesting, but it is tempting to make too much of it.

What exactly does the lack of citations to literature mean? First, even if a literary work had a "direct impact" on a judge's decision, I doubt in many cases the judge would admit this. Judges often read and rely on law review articles they never cite. Judges might be informed by history, philosophy, sociology, economics, etc. and might not cite to such works. What would we think of the judge who writes: "For the reasons stated in Dickens' works, I hereby conclude that this case should be decided in favor of the 'little guy'"? Does a judge who is heavily influenced by a particular philosophy need to cite to specific philosophical works? So a judge influenced by Rawls might never cite to Rawls. Judge Richard Posner is influenced by pragmatism, yet he doesn't cite to works by William James or John Dewey in every opinion in which he employs pragmatic ideas. The bottom line is this: Cites don't necessarily prove influence or impact, or the lack thereof. They show how many times something has been cited to. People often read much more into cites than they should.

The influence of literature is quite indirect. It provides ideas and fodder for thought. But rarely does it have a direct bearing on any particular case. It doesn't hold any particular authority over the judge. It's not precedent. It doesn't provide a syllogistic argument or complete analysis of a particular problem. But it still might be influential. A judge might reason, interpret, think, and perceive things differently for having read certain works of literature. There's no easy way to measure this.

So that ends my critique, but on the positive side, I did find some really interesting facts in Todd's article:

* "In the Seventh Circuit, Judges Posner and Easterbrook combined for nearly all citations to fiction, and over 80 percent of all references to George Orwell."

* "On the Supreme Court, Justices Brennan and Douglas accounted for most references to Orwell. Judges have favorite authors or themes, and they cite to them again and again."

* [O]f the 110 Supreme Court justices who have served, only 21 have ever cited to the authors or works in this survey. The leading Supreme Court fiction citers are Justices Douglas, Stevens, Brennan, and Rehnquist, each of whom has cited to fiction around five times. These four justices account for almost 50 percent of all Supreme Court citations to fiction."

* "About half of all citations are about the law’s delay, the definition of legal terms, and the role of courts in our system, not about generating empathy for litigants."

* The most frequently cited authors are "George Orwell (61 citations); William Shakespeare (35); Franz Kafka (34); John Milton (20); Homer, Chaucer, and Oscar Wilde (14 each)."

* "[J]ustices appointed by Democrats or with an otherwise liberal voting record made almost 80 percent of all literary citations."

* "In the Supreme Court, nearly three-quarters of literary citations are in dissenting or concurring opinions (63 percent in dissenting; 27 percent in majority; and 10 percent in concurring). In the circuit courts, by contrast, the reverse is largely true, with about 64 percent in majority opinions and 36 percent in dissenting and concurring opinions."

I'm pleased to see Orwell and Kafka as being among the most-cited literary works. I once wrote about how conceptions of information privacy and computer databases are framed in terms of Orwell and how they might better be framed in terms of Kafka.

Posted by Daniel J. Solove at 12:02 AM | Comments (2) | TrackBack

The First-Person Narrative in Legal Scholarship

If Jeff Lipshaw taught me one thing (and really he has only taught me one thing), it is that you never respond to anonymous blog commentators.

So don't consider this a response to the anonymous commentators to my post on my lateral hiring market essay (I think Scott Moss answered them satisfactorily), but rather to consider whether there is something that first-person narrative brings to legal writing that is otherwise missing.

I know my friend Nancy Levit of UMKC School of Law thinks so. Along with Allen Rostron, Nancy started a series in the UMKC Law Review last year called "Law Stories: Tales from Legal Practice, Experience, and Education," 75 UMKC L Rev 1127 (2007). Their purpose in starting this project was to expand on the art of legal storytelling:

Over the last few decades, storytelling became a subject of enormous interest and controversy within the world of legal scholarship. Law review articles appeared in the form of stories. Law professors pointed out that legal decisions were really stories that told a dominant narrative. Critical theorists began to tell counterstories to challenge or critique the traditional canon. Some used fictional stories as a method of analytical critique; others told accounts of actual events in ways that gave voice to the experiences of outsiders.

Storytelling began to make its way into legal education in new ways. For instance, a major textbook publisher developed a new series of books that recount the stories behind landmark cases in specific subject areas, such as Torts or Employment Discrimination, to help students appreciate not only the players in major cases, but also the social context in which cases arise. Meanwhile, Scott Turow, John Grisham, and a legion of other lawyers invaded the realm of popular fiction and conquered the bestseller lists.

Legal theorists began to recognize what historians and practicing lawyers had long known and what cognitive psychologists were just discovering - the extraordinary power of stories. Stories are the way people, including judges and jurors, understand situations. People recall events in story form. Stories are educative; they illuminate different perspectives and evoke empathy. Stories create bonds; their evocative details engage people in ways that sterile legal arguments do not.

Because, like Nancy and Allen, I believe that legal storytelling is not only educative, but also a way to illuminate different perspectives, I chose to contribute this year to the Second Law Stories Series. My paper, Mediating the Special Education Front Lines in Mississippi, comes directly from my first-hand experiences as a special education mediator in Mississippi. I felt that there was no better way to explain the complexity involved in legal situations when a child who has been imprisoned for a violent crime still must receive special education services.

Similarly, on a lighter, more self-deprecating note, I felt that the narrative voice would be the best way to get across the complexities of the law professor lateral market. Using storytelling again as my device was a way to evoke sympathy, hopefully induce laughter, but also certainly to educate about the difficulties of the process. In the feedback I have received from non-anonymous commentators, I believe I have been largely successful in this endeavor.

So, I ask you, readers of Concurring Opinions, should legal storytelling have a continuing, meaningful place in legal scholarship? And if so, aren't some forms of legal blogging (not all) nothing more than elaborate ways of telling a good legal story and therefore, also a type of legal scholarship?

Posted by Paul Secunda at 10:58 PM | Comments (13) | TrackBack

The Helsinki Conference: Has SSRN Been Hacked?

Over at Conglomerate, David Zaring notes that on SSRN many of his papers and the papers of others are showing up as being connected to the 2003 Helsinki Meetings. Apparently, scores of papers are being listed this way. David writes:

My colleague Andrea Matwyshyn noticed that a couple of her papers up on SSRN had been retagged as published during the EFMA 2003 Helsinki Meetings. So has one of mine. So has one of Gordon's. . . . Neither Andrea nor I were at the EFMA 2003 Helsinki meetings, so we can't say whether we would have seen Bernie or Gordon there, but we are beginning to think something fishy is going on.

Many of my papers are also being listed as being at the 2003 Helsinki Meetings. I don't recall these meetings, but it must have been one heck of a conference! David wonders whether SSRN has been hacked. Clearly something is wrong over at SSRN.

Posted by Daniel J. Solove at 08:55 PM | Comments (2) | TrackBack

Law Review Article Submission Resources (Spring 2008)

I'm reprising my post of law review submission resources that I last posted in fall 2007. I assume that most of the information hasn't changed since then, but I haven't had a chance to recheck it.

So I thought I'd tap the powers of the blogosphere -- please let me know if any of the information below has changed. Also, a request to law review editors: Please put in the comments when you plan to begin reviewing articles for the spring submission season.

Article Submission Length Restrictions

Emory Law School's Library has a very useful chart of article length restrictions at the top 35 law reviews.

The general consensus is that many top law reviews have an article length limit of 35,000 words and a preference for no more than 25,000 words. Virginia Law Review has the strictest policy, with a limit (not just a preference) of under 25,000 words. All the rest have either no upper limit or a 35,000 to 40,000 word limit. As for preferences, the range is between 25,000 to 35,000 words, with most at 25,000.

Law Review Contact Information

1. Emory Law School's Library maintains contact information, including email addresses, for the top 25 law reviews.

2. JURIST has links to countless law review websites.

3. LexisNexis Directory of Law Reviews

Law Review Rankings

Washington & Lee's Law Library has a comprehensive ranking of law reviews based on citation counts.

Electronic Submissions

1. ExpressO provides for electronic submission to over 550 law reviews. However, a number of the top 25 law reviews still require either paper submissions or electronic submissions via their own website. For those law reviews not allowing an ExpressO electronic submission, ExpressO will print out the article and send it to these journals in hard copy. It costs extra for these submissions.

Chart of Law Review Submission Policies and Webpages

After the break is a chart of the submission policies and submission pages for several top law reviews.

LAW REVIEW	EXPRESSO	ONLINE SUBMISSION PAGE	WORD LENGTH
California	Electronic (Expresso Preferred)	No	35,000 or less
Chicago	Electronic (Expresso Preferred)	No	None
Columbia	Hard Copy	Yes	32,000 or less preferred; not more than 37,000
Cornell	Electronic (Expresso Preferred)	No	30,000 or less preferred
Duke	Electronic (Expresso Preferred)	No	35,000 or less
Fordham	Electronic (Expresso Preferred)	No	None
Georgetown	Electronic (No Preference)	Yes	35,000 or less
George Washington	Electronic	No	None
Harvard	Hard Copy	Yes	25,000 or less preferred; not more than 35,000
Illinois	Electronic (Expresso Preferred)	No	None
Indiana	Electronic	No	None
Iowa	Electronic (Expresso Preferred)	No	None
Michigan	Hard Copy	Yes	25,000 or less strongly preferred
Minnesota	Electronic (Expresso Preferred)	No	None
NYU	Electronic (Expresso Preferred)	No	35,000 or less preferred
North Carolina	Electronic (Expresso Preferred)	No	25,000 or less preferred; not more than 40,000
Northwestern	Electronic (Expresso Preferred)	No	35,000 or less
Notre Dame	Electronic	No	None
University of Pennsylvania	Hard Copy (prefers its own site)	Yes	35,000 or less
Southern California	Electronic (Expresso Preferred)	No	None
Stanford	Electronic (prefers its own site)	Yes	30,000 or less
Texas	Electronic (Expresso Preferred)	No	None
UCLA	Electronic (Expresso Preferred)	No	35,000 or less
Vanderbilt	Hard Copy	No	None
Virginia	Electronic	No	25,000 or less strongly preferred; not more than 30,000
William & Mary	Hard Copy	No	None
Wisconsin	Electronic (Expresso Preferred)	No	37,000 or less
Yale	Electronic (prefers its own site)	Yes	30,000 or less preferred; 35,000+ strongly discouraged

Posted by Daniel J. Solove at 03:47 PM | Comments (2) | TrackBack

Law Professor Blog Rankings -- By Citation

For those who love rankings (which is all of us except those who hate rankings but love looking at them), there's a new ranking of law professor blogs. Recently, Paul Caron posted a ranking of law professor blogs based on visitor traffic. Over at The Race to the Bottom blog, Robert Brown has posted a ranking of law professor blogs by citation. Here are the top 10:

1. Sentencing Law and Policy, 156
2. Jurist- Forum, 156
3. Volokh Conspiracy, 135
4. Balkinization, 106
5. LessigBlog, 79
6. Patently O, 73
7. Jurist- Paper Chase, 50
8. Concurring Opinions, 45
9. White Collar Crime Prof Blog, 44
10. Prawfs Blawg, 37

The total law review citations for about 130 law professor blogs that Brown counted is 1361.

If we compare the top 10 lists for visitor traffic and citations, the following blogs appear on both lists:
* Volokh Conspiracy
* Balkinization
* Concurring Opinions
* Sentencing Law & Policy

Related Posts:
* Solove, Law Professor Blog Rankings (February 2008)
* Solove, Citations to Blogs (February 2008)

Posted by Daniel J. Solove at 12:33 PM | Comments (0) | TrackBack

Bullish on the Blogosphere

In looking over Paul Caron's rankings of blogs based on visitor traffic, Brian Leiter notes that many of the top five blogs contain much more punditry than substantive legal analysis.

Over at Balkinization, Jack Balkin argues that these results are to be expected and are not reason to deride the blogosphere:

I think, in fact, that this is pretty much what we should expect. Blogs directed at popular audiences generally get the largest traffic. Specialty blogs, including blogs that specialize in delivering legal expertise, are usually niches, generating relatively low traffic that is nevertheless useful to the communities that read them. . . .

These sites are engaged in something very important: the diffusion of professional expertise. It is a diffusion that would not have been possible on this scale before the age of the Internet and remember, we are still in the earliest stages of this development. These legal blogs simultaneously (1) allow academic communities of interest to form; (2) forge connections with lawyers and judges in practice who pay hardly any attention to law review scholarship anymore; (3) put informed legal analysis into the hands of journalists and political writers who can now find it more easily than they ever could before; and (4) offer lay persons a window in to what legal experts think.

Here is the point: Even the least trafficked of these expert blogs probably gain more readers in six months than most law professors could hope for in a career. . . .

I think that the future of the academic legal blogosphere-- by which I mean that subset that devotes itself primarily to serious academic commentary-- is very bright. It will never get the same readership as blogs that specialize in punditry, but it is doing something that most law professors have always dreamed of-- bringing ideas that they believe are interesting and important to a far larger audience, reaching people outside the legal academy who want to know what law professors actually think about the law. Surely this is a worthy endeavor, whose success we legal academics should all be proud of.

I wholeheartedly agree. The great value I see in the blogosphere is to communicate with professors and others in a way that I cannot as readily do in law review articles or books. If I want to engage in a lengthy and detailed analysis, I'll do it in a law review or book. But if I want to analyze a case, react to a news story, write a short book review, or respond to a critique of an article or a book I wrote, the blogosphere is the perfect medium for that. I view the blogosphere as an idea-spreading mechanism. I work hard on my ideas (I may not always get results, but I try) and I want to sprinkle them around with the hope that one or two might actually take root somewhere. Life doesn't always work like the movie Field of Dreams -- "If you build it, they will come." Plenty of great ideas languish in obscurity, not because they're not interesting, but because hardly anybody knows about them. The blogosphere can rectify that problem, and it can bring ideas to journalists, politicians, academics in other fields, practicing lawyers, and others.

Leiter only focuses on the top five blogs on Caron's list, but if you look at the top thirty, there are many blogs with a heavy amount of posts about legal issues and containing substantive legal analysis or discussion about legal scholarship or the academy.

Balkin is right to be bullish on the blogosphere.

Posted by Daniel J. Solove at 12:01 AM | Comments (2) | TrackBack

Law Review Symposia List 2008

The Berkeley Electronic Press has compiled a list of law review symposia for 2008. The list is organized around subject area and is quite useful. Over 50 law schools are represented on this list.

Posted by Daniel J. Solove at 10:46 PM | Comments (0) | TrackBack

The Secret Life of (Law Professor Proceedings) Editors

Woe unto you who is asked by a senior, big-whig colleague, who has the ability to make or break your career, to "assist" them and edit the proceedings of a conference or symposium. Are you doomed to reading practitioner pieces that have never seen the light of the blue book? Must you stare for years upon years on undisturbed piles of copy that have not yet seen the editor's pen?

No, Bodie and Hirsch, you need not my whiny friends. The answer to such a quandry is organization and yes, many, many doe-eyed research assistants. Here's my story of how I won the Battle of Who Could Care Less.

Imagine my surprise when I was asked to become a research fellow at a prestigious institution's labor and employment law institute. Wow, little 'ol Mississippian me had finally arrived in the hallowed halls of academia. The only catch was that I needed to present a paper at a forthcoming conference at said school. Why, I'd love to.

And one more thing: when the conference is over, you are in charge of editing the twenty-some papers of the participants and producing a 700-page or so book for the institute. Deal? Sure, and can I also be your Yoko Ono after this and follow you around wherever you go?

So how do you make the best of this potentially tedious process? First, you need to get your esteemed authors to sign a copyright release. Sounds easy, no? Almost nine months later, I am still trying to collect the last one. The big issue is whether they will be able to publish their piece elsewhere. Suggestion: tell them to take the copyright form and change it so it fits their purposes. Then hold your breath and hope the publisher doesn't notice or doesn't care.

Second, you'll need to put in some effort (and many annoying reminder emails) to get them to turn their finished pieces in on a timely basis (meaning within two to three months of the deadline). For the academic authors from whom you have solicited already published law review pieces this is not much of a problem. Yes, there is a bizarre format that has to be followed for this book, with contradictory formatting in notes 2 and 3 of the Style Manual, but such is life.

On the other hand, trying to get a paper in any decent sort of shape from a real-live, practicing attorney, well you can just forget about it. They're solving the problems of the world and don't have time for us academic, ivory-tower types. Yes, these practitioners are very intelligent people who you would think that you could ask simple things of such as: Can you please follow this Style Manual and write the piece in prose form? Prose form, says Author A, does that mean you want my very best CLE outline? No, I say, please give this to one of your three hundred, needy summer associates at your firm who are already earning more money that I ever will and make them earn at least some of that ridiculous sum of money. Summer Associate A says: Would an outline be OK? No, I say. And I get an outline of this superstar attorney's latest CLE magnus opus anyhow and ding-dong Summer Associate A gets an offer after considering such imponderable questions on Lat's Above the Law as Should Lawyers Date Other Lawyers?

Once you get all the copyright forms signed and what we will call the "finished" pieces, this is where you must embrace the art of delegation and develop a good working relationship with a large number of eager (read "not jaded yet") research assistants. After approaching said students, and getting by the awkward, "You are again?," explain to them the marvels of [fill-in-blank] law that they will learn as a grasshopper sitting at your feet. And then treat them like Mr. Miyagi (though don't make them wash your car). And keep reminding them that out of this process they will earn the coveted ability to call you "Master" and list you as a "mentor" on their resume.

And that is what I did (minus the crying, pleading, screaming, and threats). And miraculously, this killer group of three law students got these 21 articles into shape over the months, and now a 675-page volume on the ins and outs of workplace retaliation and whistle blowing law is ready to go to the publisher. And to think, they might have even learned something educational out of all this.

Follow these tips, Proceeding Editors of the future, and you may also avoid General Boredom and Major Apathy in the battle of who could care less.

Posted by Paul Secunda at 11:43 AM | Comments (0) | TrackBack

More Reflections on Legal Education

Brian Tamanaha has just posted another interesting post in the discussion about legal education. He writes:

Most law schools now follow the elite model, striving to hire faculty and produce scholarship like research universities, when it might better serve the interests of many non-elite law schools and their students to concentrate on training good lawyers. Money now allocated to scholarship and research leaves would instead go to clinics and other practice training; professors would teach 15 hours or more a week; faculty would be hired for the desire and ability to train lawyers, not for scholarship; more law schools would look like Massachusetts School of Law (which the ABA has mightily resisted). Schools built around this alternative model would produce capable lawyers at a much lower tuition, which would be good for the students and good for society.

This vision of legal academia allows for a range of law schools, serving different needs and circumstances, rather than one academic model for all. It makes sense, but to succeed it must have the support of law professors.

Brian blames a lot of the problem on the ABA, which has imposed a one-size-fits-all model on the academy. I agree with Brian that this is unfortunate. But from Brian's earlier posts and from some of the discussion in the blogosphere, there are some claims being made that I think are questionable or wrong. Brian doesn't make many of the claims below -- they are often made by people who are interpreting or building off his posts -- so I'm not ascribing them to Brian. But they are swirling about in this debate, and I think they ought to be addressed.

Claim #1. The turn in academia toward a greater focus on the academic study of law and toward more scholarship results in students being less well prepared for practice than they were before this more academic turn in the academy.

Are students today less well-prepared for practice than 50 years ago? Were law schools 50+ years ago producing better lawyers? Did they have better bar-passage rates? I wonder whether the practice of law has suffered because of this change in the academy.

Claim #2. The turn toward interdisciplinary scholarship and to scholarship more in general is one of the primary reasons for the greater cost of going to law school.

Is this really a primary reason for the tuition increase? Has the tuition of law schools increased more than the tuition generally for higher education? My sense is that the cost for higher education has increased across the board, and so I wonder whether the increase is due to other factors beyond the change in the nature of legal education.

Claim #3. The best way to prepare students for the practice of law is to teach them practice skills such as drafting, negotiating, arguing, etc.

I think that it is certainly important to teach students basic lawyering skills. But in reading discussions about the issue, I often hear a common refrain that teaching students jurisprudence, legal history, and other interdisciplinary subjects is not really that essential -- it's a nice frosting on one's legal education, but nothing more than a sweet tasty coating.

But I believe that there is a real value teaching students to think about the broader issues in the legal system, about the larger moral questions, about the tension between the rule of law and justice, about the policy implications of laws, about the sociological and economic effects of regulation, and so on. I believe that this makes students into better, more capable practitioners. Many, however, remain skeptical of this claim.

Yet, there's another reason why teaching students these things has value. Maybe our task as legal educators isn't simply about producing technically-competent lawyers. Being a lawyer brings a lot of power; our students will enter the elite realm of society. Unlike many people, they'll have an incredible set of tools to change society and affect people's lives. Should we simply train them how to be more effective hired guns? Or maybe we're right to try to spur them to ponder the broader issues of the legal system, to understand its history, to think about whether certain laws are good or bad. I think that legal education should be more than merely a lawyer factory. We're not just training people in skills, but we're preparing them to enter a profession, one that plays a profound role in our society. And there is value to having those that work in that profession (at all levels -- from lawyers, to judges, to policymakers) spend some time thinking about the effects of the law on society.

Should this be shrugged off as theoretical fluff that is only of use to academic-types who sit as armchair commentators about the law? Or should it be something that all lawyers confront and think about before they embark on their careers? I believe that there is value in thinking about the meta questions -- the critical awareness of what one is doing, the system one is working in, and its larger social effects-- even if doing so doesn't help one win a case or draft a document or complete a deal.

Posted by Daniel J. Solove at 12:55 AM | Comments (14) | TrackBack

Encore - I Couldn't Resist Saying Something About the Interdisciplinarity Debate

I mentioned to Dan Solove (in praise of his post) that I am giving a talk to the Suffolk Business Law Association with the title "How to Be a Great Business Lawyer Even if You Majored in Philosophy," and he invited me back for an encore post. The connection here is that "law" and "philosophy" are in the same sentence, so it must have something to do with interdisciplinarity in the legal academy, which has, by virtue of Brian Tamanaha's post, become a matter of widespread discussion in the blogosphere. I'm not going to try to link up to all or even most of them - Dan did it recently, and, as I mentioned to Larry Solum in an e-mail yesterday on one's ability to predict, his "post" on the subject ten, and maybe even two, years ago would have been an unread essay in the Journal of Legal Education; today it is read by thousands of people within hours of his writing it.

I feel like I ought to say something on this issue not because I was in practice for so long, but because of what I was doing in practice for so long, which was managing, as much as doing, legal work, and hiring lawyers. Hiring lawyers, both those who will work in-house, and firms to do work at varying levels of sophistication, is an endeavor at the polar extreme from most of what lawyers learn and do. You can use all sorts of rules of thumb (for the practitioner audience) or heuristics (for the professorial audience), but making a commitment to a person by which one entrusts the myriad judgment of a deal or a case or a business has more judgment and less analysis than almost anything one studies in theory or doctrine in law school (and it's part of my thesis for the talk).

Having said that, I agree with another blogo-pundit that Brian has intertwined two issues - the fate of non-elite law schools and their graduates, on one hand, and the rising (and, from a practice standpoint, arguably irrelevant) inter- or multi-disciplinarity of the law school professoriat. Here, for what it's worth, are four observations:

1. There's something to be said for the Luhmann-Teubner theory of social systems in law - that is that law is a closed system that has points of interconnection with the rest of society, but is "autopoietic" in that it self-generates its own principles, standards, processes, results, etc. I would posit that legal academia is autopoietic even within law. To put it more bluntly, practicing lawyers don't care what the law professors are thinking or writing about, as long as the professors are churning out law grads with the basic doctrinal training (that training that Larry Solum aptly says fits like a glove). Or to put it another way, Larry Solum and I are almost the same age, so his essay describing what it was like to be a legal academic from the late 70s until now is fascinating; I was a hard-nosed practitioner over the same period, had no concept or even awareness whatsoever of anything Larry described, and, trust me, was absolutely no worse for the wear as a lawyer!

2. With everything that can or should be done to improve legal pedagogy, in fact, you do learn a lot in law school about the law. It's a sad statement that the worst irrelevancy offender is the course I have taught - contracts - because rarely do you ever litigate or worry about the issues taught - offer and acceptance, consideration, etc. But even having said that, there's something about the history, tradition, thinking process, whatever, of the closed system that one does learn. And I can testify that some or all of the following courses I took in law school were not a waste of time when I got into practice (and I'm sure there were others I can't recall offhand): torts, civil procedure, constitutional law, property, trusts and estates, securities regulation, tax, evidence, real estate transactions, business associations.

3. I'd be careful about painting the non-elite school with too broad a proletarian brush. I don't know if my school, Suffolk, turns out policy-oriented lawyers on a national scale, but I do think we have a significant relationship with state and local government in Massachusetts, and a role to play in that arena. On the subject of the cost-benefit, and without minimizing the plight of today's young lawyers saddled with debt, it's hard to believe the market won't sort this one out. If there's no real or perceived return on the degree, are students really that gullible that they would incur $100,000 of debt just because law schools would like the revenue? I'm familiar enough with the behavioral economics of this (over-optimism, etc.), and this is awfully rational choice of me, but if you amortize $100,000 of debt over a forty-year career, the debt service is $5,000 a year. So you only have to improve your earning capacity by that much a year to make it a rational decision. Right?

4. The history Larry Solum traces of the trade school/professional school/social science model is fascinating and rich and deserves more attention than I will give it here. Personally, I think Larry is onto something with the Ph.D. in law, because the fact of the J.D. as terminal degree for academics and practitioners has two effects: (1) it fosters the practice-academy divide because academics feel an even greater need to close their system to highlight their differences from mere practitioners, and (2) it is something less than "real" scholars in sister disciplines would expect. Larry mentions political science as an area to which one might compare this dilemma; I think there are even more: business administration, public administration, medicine, dentistry, journalism, to name a few. At least looking at those areas would tell us how much of legal academic angst is unique to legal academia.

Well, I've probably overstayed my welcome as it is, but if the talk with the students turns up any other insights, I'll be back for one more encore.

Posted by Jeff Lipshaw at 08:52 AM | Comments (1) | TrackBack

Solum on Interdisciplinary Legal Studies

Over at Legal Theory Blog, Professor Lawrence Solum has a terrific post on interdisciplinary legal studies. He is responding to the discussion in the blogosphere sparked by Professor Brian Tamanaha's provocative post, to which I have responded (here and here). Several others have insightful commentary in the debate, such as Professor Ethan Leib and Professor Josh Wright. Belle Lettre collects links here and Professor Paul Caron collects more links here.

Larry Solum's post is terrific (caveat: it's also quite long), and it is well worth a read.

Posted by Daniel J. Solove at 04:23 PM | Comments (0) | TrackBack

Interdisciplinary Scholarship and the Cost of Legal Education

The other day, I responded to a post by Brian Tamanaha regarding interdisciplinary legal study at non-elite law schools. Brian suggested that non-elite schools reconsider whether they ought to pursue interdisciplinary legal scholarship, and I argued that they should.

In a follow-up post, Brian has clarified his argument:

My point was not to be anti-intellectual but to get us to think about a growing crisis in non-elite law schools.

Signs of the crisis are evident in many recent reports. The basic elements are this: tuition at private law schools ranges around $35,000-$40,000 per year, doubling in the past decade and still rising; pay for law jobs outside corporate law has stagnated, many in the $40,000-$50,000 range; the overwhelming majority of graduates from non-elite law schools will not get corporate law jobs, and will be saddled with a huge debt.

Brian suggests that the high cost of law school "is also a problem for society because the lower middle class and poor cannot obtain lawyers--it just doesn't pay enough." He concludes:

It's time we start thinking more seriously about whether non-elite law schools would be better served, and would better serve their students, if they develop a different model for training people who want to be lawyers. Otherwise the crisis might be one that non-elite law schools bring upon themselves, as more and more prospective law students decide that the cost of law school is not worth the return.

Brian points to an article about a Boston University Law School graduate who decided after graduating from law school to take a non-legal job and remains saddled with massive debts.

I now understand Brian's point to be more about the high cost of law school than about interdisciplinary studies. In fact, I see his argument as almost entirely independent of the question of interdisciplinary studies.

I wonder how much costs could be cut at non-elite schools by moving away from interdisciplinary studies. Why would this be a significant way to cut costs? I'm no expert on the economics of running a law school, but I don't think that interdisciplinary studies is the primary problem. Brian's argument could be applied to scholarship more generally, not just interdisciplinary scholarship. Costs at law schools might be cut more if some non-elite schools were to hire fewer professors and make them teach more classes and do less (or no) scholarship. These schools could require professors to teach many more classes than the norm -- maybe 3, 4, or even 5 classes per semester. As with the catch phrase in this season's The Wire, these schools could "do more with less."

If I understand Brian's argument, it is that there should be cheap law schools for students who have no desire to go to big law firms or otherwise pursue highly-lucrative legal jobs. So there should be a group of law schools that are designed to be "economy class" -- offer an inexpensive legal education for students who desire it. I have no objection to schools that decide to recast themselves in this model or to schools that are created based on this model. This would be the legal equivalent of the 'teaching university."

But I see this as a very different claim than the argument that non-elite law schools should move away from interdisciplinary studies. That some schools should have professors teach more and write less is a different issue than what the professors would teach -- they could teach interdisciplinary studies, for example, or they could teach only doctrines and practice skills, or something of both.

I personally believe that having professors who produce scholarship is good for a law school. But this need not be a requirement for all law schools. If students want to a cheaper education without scholarship-producing professors, then I don't see why there shouldn't be some options for them.

Posted by Daniel J. Solove at 03:17 PM | Comments (4) | TrackBack

Is Interdisciplinary Legal Study a Luxury?

Over at Balkinization, Professor Brian Tamanaha (St. John's School of Law) argues that most law schools should abandon their vigorous pursuit of interdisciplinary studies in law:

[P]erhaps detailed knowledge of the social sciences—anything beyond rudimentary information every educated person should possess—is irrelevant to the practice of law.

It seems evident that one can be an excellent lawyer without knowing any of this interdisciplinary stuff, while it is not obvious that learning this will make a person a better lawyer. A stronger case can be made that this information might improve the performance of judges, but a more efficient way to deliver this benefit is to set up classes (in economics, statistics, etc.) for sitting judges—programs which now exist.

Brian contends that non-elite schools should reconsider whether they should emulate top-ranked law schools in focusing heavily on the interdisciplinary study of law:

In the non-elite law school universe--with schools almost entirely dependent upon tuition, with a majority of graduates who do not get corporate law jobs and only rarely become law professors--the interdisciplinary movement cannot be so easily justified.

Let me just give three reasons why it might be a bad idea for non-elite law schools. First and foremost, as argued above, there is no evidence that it will make their students better lawyers. Second, it costs a lot of money to go interdisciplinary, and (because non-elite schools are tuition driven) this money will come out of the pockets of the students. Third, their education might suffer if their faculties emulate the elite law school trend toward hiring JD/PhDs with little or no practice experience (assuming a person with some experience in the practice of law has a bit more insight to impart to students about how to be good lawyers). . . .

The bottom line of this post: the notion that interdisciplinary studies within law schools promises to improve the practice of law is an old idea backed up by little evidence. Non-elite law schools might not be serving their students well if they get caught up in this trend.

I strongly disagree. Brian's post seems to be informed by a common set of assumptions about legal education and practice that I think are false. These assumptions involve a particular vision of what tools are necessary for law practice and of what good lawyering is all about, as well as a vision of what role legal education should play in preparing students for the practice of law.

With regard to the vision of law practice, I think that it is a common assumption that it involves learning doctrines, rules, case holdings, drafting skills, etc. While this is part of law practice, the practice of law is tremendously varied. Some students go on to become judges and policymakers. Many will work for government, for think tanks, for public interest organizations. Many might work in house at companies, where they might also be making policy. For example, one of the most rapidly growing positions is that of privacy officer -- most companies have numerous people devoted to understanding privacy law and making corporate policy with regard to privacy. In any policymaking position, knowledge of existing legal doctrine is just one part of the job. One also needs to be able to see the big picture, to make wise policy choices beyond merely complying with existing law.

Moreover, the practice of law involves many dimensions. Some students will become trial lawyers, and interdisciplinary knowledge might enhance their ability to make eloquent arguments before the jury. Literature, psychology, rhetoric, and other fields are very important for a successful career as a trial lawyer. One of the difficulties in justifying interdisciplinary legal studies is that often the materials read or studied don't have a direct bearing on practice. So if one reads Melville or Shakespeare, or reads works of behavioral economics, psychology, or sociology, the benefit isn't in terms of having authorities that one can cite in a brief or recite before a jury. But the exposure to these ideas, the process of reading and thinking about these works enhances one's general store of knowledge, one's understanding of life, and so on. This indirectly enhances one's ability to practice law. The brilliant funeral speech of Marc Antony in Shakespeare's Julius Ceasar is a wonderful display of rhetoric, and much can be learned from comparing it with Brutus's speech. Behavioral economics, psychology, and cognitive science -- the work of Daniel Kahneman and Amos Tversky, for example -- reveals how the framing of choices can have dramatic effects on what people will choose.

Brain notes that "no convincing evidence has been provided to demonstrate that 'interdisciplinary studies' will help one whit in the training or performance of lawyers." But is there a way to produce the evidence he desires? Is there a way to prove that learning history, literature, philosophy, psychology, economics, and other humanities have any value for most careers? What would be the metric by which this could be measured?

Certainly knowledge of rules and doctrine is important for law practice. But in many cases, the doctrine is unclear or is subject to interpretation and debate. It is the ability to make persuasive arguments about the doctrine that separates the great lawyers from the mundane. A good legal argument often touches upon policy implications; it examines the downstream consequences of rules, slippery slope problems, etc. A good lawyer might realize that there is a body of sociological, empirical, or psychological knowledge that supports a particular interpretation of the law. More indirectly, a lawyer steeped in a broad humanistic understanding of the law might think more creatively and might see issues and arguments that others without such an understanding would not.

Moreover, the study of interdisciplinary knowledge can have a broader indirect effect on the law. For example, the legal realists had a tremendous influence on legal practice. They changed the way many people thought about the law. They didn't do so directly. So lawyers and judges might not have been readily citing Karl Llewellyn or others as authorities for various legal propositions, but their thought did influence the way that legal arguments are made, the way that lawyers and judges understand the task of applying and interpreting the law. Although the law still struggles to integrate interdisciplinary knowledge in practice, I don't think that the project begun by the legal realists is a failure.

So I think that it is a deeply flawed assumption to see the practice of law as the mere mundane application of rules and doctrines. For the creative lawyer, steeped in literature and humanities, in social science, with an understanding of policy and a larger world view, the range of options in a case is much broader, the tools to work a case are much more numerous and vibrant. The lawyer with interdisciplinary training can often see more -- see issues and arguments that the more narrowly-focused doctrinalist won't see. I've read many a complaint and brief that could have benefited from more thoughtful framing, a more creative approach, and a knowledge of the humanities. I've seen cases where attorneys seemed to be very limited in their vision, where they they merely proffered mundane readings of rules, where they took too much as given and didn't push for more. And on the flip side, I've seen many cases where a visionary attorney has won with a new argument, a clever interpretation, a wise marshaling of facts and evidence, a novel reading of cases or application of law. Many lawyers act like mechanics, but the great ones, in my opinion, have a wisdom, judgment, and creativity that enriches everything they do.

What role should law schools play in the training of lawyers? A common assumption is that preparing people for the practice of law should involve teaching them the practicalities of practice. So teach them the rules, train them in the nitty-gritty of how to litigate, make deals, etc. While this is important, I think it is a limited vision of what it means to prepare people for the practice of law. At the end of the day, nothing can truly prepare you for the practice of law except actually doing it. There's a certain wisdom that comes from experience that seasoned practitioners have and that I don't think can readily be taught in school. The best way to learn how to practice law is to do it. Clinical education and learning certain practice skills can help, but most lawyers will learn about the practice of law as they are practicing it.

So if lawyers learn some of the most important lessons about practice after they graduate from law school, then what's the purpose of law school? I believe it should be to provide students with a rich body of knowledge that they can draw upon to sharpen their thinking, open their minds to new ideas, get them to see the larger picture, help them figure out what they love about the law so they can launch their careers in the right direction, etc. These things are often difficult when one is in practice, with a desk full of heaps of paper and with the phone ringing off the hook. There often isn't the luxury of sitting back and thinking more broadly about the law. There isn't as much time to enrich one's mind with a study of the humanities and the ways they intersect the law, for example. Law school helps get one started on this endeavor. It teaches students that there are many different ways to think, it infuses them with ideas that they might not ordinarily think about unless they have time to step back from it all and ponder. The effects on their abilities as a lawyer are often indirect; they are hard to articulate and to pin down. We shouldn't demand that lawyers point to the work of Ludwig Wittgenstein, John Dewey, HLA Hart, Karl Llewellyn, Daniel Kahneman, Fyodor Dostoyevsky, or Franz Kafka and say: "I won this case because of reading this particular thinker." But are they better lawyers for having read and reflected upon great works in the humanities, for having some background in a variety of different fields of study and their applicability to law? I'd venture to say yes.

Is the value of law school for a lawyer to be working a case and be able to remember some rule she learned in a class many years ago? I think not. To find the rules, lawyers only need to crack open the law books or hop on Westlaw or Lexis. The rules, in other words, are not what training to be a lawyer is all about. The practice of law can contain a lot of drudgery, and a significant part of it is perspiration. But it is also part inspiration, and it is also an art.

All this said, I still believe that law school should teach students rules and skills. But learning rules is not what will help students become top lawyers. Learning skills in law school can be helpful, but at the end of the day, learning skills is something that lawyers learn when in practice. Skills develop over time. What law school does is plant some seeds -- it lays a foundation. It is foolish, in my mind, to think that law school can spit out lawyers who are ready to go out of the gate. Law school builds the foundation. The rest of one's legal career is when the building gets built.

So in contrast to Brian, I encourage the development of interdisciplinary studies in law. I don't see why they only need to be a luxury for the elite schools. I see interdisciplinary studies as helpful to all lawyers, and as an important part of any good legal education.

Brian Leiter is also collecting comments.

Posted by Daniel J. Solove at 04:37 PM | Comments (12) | TrackBack

The Future of Sensory Jurisprudence

[This post continues the debate about Whose Eyes are You Going To Believe, the draft paper Dan Kahan, Don Braman and I have recently begun to circulate. For previous installments, see posts on Balkin, CoOp, Volokh (Kerr), and CoOp (our reply).]

As I hope we've made clear, our ultimate claim is not (cf. Kerr) that "Justice Scalia was privileging a conservative white male view" of Scott, but that judges need to be generally mindful of the possibility that their views of facts, and factual dissensus, are as culturally contingent as the public more generally. Thus, we argue for rhetorical humbleness, and for deciding cases on grounds other than a holding that no reasonable juror could see the facts in a certain way. It's a modest response to the large problem of cognitive illiberalism in legal decision making.

In this post, I'm going to make a bigger claim, one which isn't so much based on the paper or my co-authors' views, but is instead just the kind of irresponsible extension of the data that blogging encourages. In short: it's my view that Scott is a harbinger of a whole mess of cases on the near horizon: a sensory jurisprudence enabled by a total surveillance society.

Total surveillance as a concept is one well-explored by other authors on this blog. But even in Dan Solove's well-known post – and subsequent highly downloaded article – about the "I've nothing to hide" problem, the doctrinal consequences of total surveillance were virtually ignored. And by doctrinal, I do not mean the privacy law consequences: I mean the likelihood that as surveillance becomes omnipresent in most public and some private places, judges will use surveillance evidence ["SE"] in an increasing number of cases to resolve factual disputes.

This use of SE would seem to promise more accurate, efficient, and ex-post legitimate litigation outcomes. The theory would go that most litigation is driven by a dispute about the facts: SE should dispositively resolve such disputes, promoting settlement and (at worst) streamlining trials. Best of all, opinions enlisting SE would be more likely to be persuasive. Thus, if Judge Cardozo, ruling on the relative fault of the parties in, say Palsgraf, could have just embedded a video of the events instead of describing it in his beautiful but inscrutable prose, perhaps readers/viewers would have more likely to agree with him. Or in a sexual harassment case, if the workplace was totally taped, evidence of a hostile work environment would be both clearer and harder to refute. And in the case of coerced interrogations, a judge could simply embed a video, instead of describing it, and say: "look, it's obvious!"

The connection between SE and surveillance is (ironically) made stark in a video ... but to see it, you'll need to read past the jump.

But this view of SE and the jurisprudence it will produce is too rosy. As we illustrate in our paper, the "facts" a reasonable jury would find after watching the Scott tape are culturally dependent (and also influenced by demographics, wealth, etc.). In a future where more legal cases are resolved based on SE, the danger is that law will ignore this prism effect, and simply embed the evidence as if it resolved the question of "what happened."

This isn't to say, of course, that surveillance evidence is a bad thing in and of itself. It can improve accuracy, reduce frivolous litigation, and deter wrongdoing (think about the various aspects of the CIA taping controversy). But, as I suggested in my first post on Scott, the idea that surveillance evidence will distill litigation into a simple search for truth is fundamentally misguided:

[C]ourts’ ordinary role to [is] determine legal facts, instead of the truth of the "event." We don't read opinions to tell us what happened. We read them to tell us what facts the courts have found. That is why innocence is not, ultimately, a legal defense: the facts found by a jury control. This separation is a necessary part of the dispute resolution system, enabling finality. [Scott] has the potential to destabilize this delicate regime in areas that would likely matter to some folks more than the civil rights suit of one speeder.

Not convinced? Read the paper (again?). It speaks for itself.

(Folks interested in this topic might also like Jessica Silbey's Judges as Film Critics: New Approaches to Filmic Evidence)

Posted by Dave Hoffman at 01:00 PM | Comments (2) | TrackBack

Traveling Hopefully

This will be my last post in this guest-blogging stint, and I want to express effusive thanks to Dan Solove, Frank Pasquale, Dave Hoffman, and the other proprietors of this space for their hospitality and encouragement. I also appreciate the fact that they, and not I, created a forum with several thousand discrete hits a day. It's quite an incentive to a blogger (or any other writer).

Joy is not the kind of thing that lends itself to either critical or even interesting analysis, but that has been my experience of this particular stint on Concurring Opinions. I remember discussing Milton's Paradise Lost in high school, and we all agreed that Satan was by far the most interesting character. Unhappiness or dissatisfaction is (ironically) so much more satisfying, and we indulge in it, whether it's why law professors are so unhappy, or why the law review system doesn't work, or why legal scholarship isn't really scholarship, or why lawyers think law professors are irrelevant, and so on. There's even a mystical explanation for this. In the Lurianic myths of the Kabbalah, the physical universe, as we know it, came about as the result of God's withdrawal (tzimtzum), which resulted in the shattering of the perfect glass "vessel" of the heavens. The shards of that shattered vessel are what we experience as the physical world. The repairing of the world, or Tikkun Olam, is the endless process of returning those shards to their perfect state. And how are we to do that without first identifying the miseries of the world?

You can really get into the repair of the world if you are out in the trenches on the front lines of life, whether you are fixing gutters (I just got an estimate for ours), litigating public or private disputes, or figuring out whether the universe is expanding or contracting (I figure we are going to have to understand the cosmological constant if we are going to reconstruct the shards at some point). The other day I referred to one of the tomes identifying some of what is wrong with the [academic] world, Julius Getman's In the Company of Scholars. In turn, Mike Madison pointed me to his Lewis & Clark Law Review piece quoting Getman to the effect that "research serves as a 'dress suit for academic elitism.'" Mike applies the concept of the "economy of prestige" to the question why law reviews don't seem to go away in the face of so-called "open access." If I may interpret, Mike's point is that scholarship, and particularly legal scholarship, is a self-contained, self-validating, self-referential economy, in which the payoff is in utils measured by prestige. And open access simply does not generate sufficient wealth as so measured. According to Mike, "The theory of the economy of prestige holds that we see a grumpily mutually-reinforcing symbolic economy of law professors, lawyers, law students, law schools and their universities processing professional prestige through the unusual institution known as the law review."

It's a dreary prospect, and not one that inspires joy. But there's some joy after the fold.

Consider the conundrum. Mike points out one criticism of law reviews is that they are edited by law students, and because the law students really don't know what they are doing, much of what appears is garbage (by the way, I should note that the garbage Mike skewers sounds a lot like what I do!). But the garbage is submitted by law professors, who presumably would be the peer reviewers if the system were replaced by peer review. All of which means that there must be some elite within the discipline that is the ultimate judge of quality. But how did they get to be the judges? Is there an immanent Truth to which they have access? This is all very tough stuff. (I may have this slightly wrong, but I am recalling the description of the process by which the early American Puritan Congregationalists were admitted to whatever it was that they were admitted to - as deacons, members, saints, whatever. Once the church leadership was in place, those individuals could decide who else got in. But how did the first ones establish their credentials? Apparently two elders would get in a room and battle it out mano-a-mano and then certify each other. In Mike's piece, the analogous process has to do with the founding of the Harvard Law Review.) Anyway, that's scholarship.

Going to back to Tikkun Olam, I can see how there are many aspects of repairing the world that would cause one to get really mad. There are so many injustices and, not to be flip about it, so little time. (Even I, the most congenial and laid-back of people, got my heart pumping when I listened to a couple colleagues tell me the other day they liked what John Edwards had to say about "corporate greed.")

But one of the curiosities to me of the academic life is how it is possible to get so angry about almost anything. I have in mind the feud between two philosophers highlighted today in the New York Times, and about which Brian Leiter has provided some insight. I think I can actually explain the substantive dispute. One of the knottiest issues in philosophy of mind is the question of consciousness itself. What does it mean to experience the world, not in terms of explaining the physical aspects of the experience, but actually, from a first person standpoint, having the experience? (This is the subject of David Chalmers' book, The Conscious Mind, highlighted by Larry Solum in his Legal Theory Bookworm on the same day Larry expounded on his own application of the "zombie" hypothetical to the issue of legal personhood at the AALS meeting.) There are two poles to the debate, one at the physicalist, or naturalist, end, contending (or believing) that consciousness cannot ultimately be something separate from physical cause-and-effect, and the other at the "spiritualist" end, contending that consciousness will never be explainable from a purely physical or natural standpoint. ("Dualism" tends to move to the latter pole because it views consciousness as something apart from the physical, even if consciousness is not spiritual. This is where Chalmers comes out.)

The feud is about a book written by the philosopher, Ted Honderich, in which he proposes something along the lines of a physicalist thesis (called Radical Externalism). Colin McGinn, another philosopher, wrote a scathing review of the book in Philosophical Review. Brian Leiter highlighted the issue not as much for the merits of the philosophical argument, but for what constituted the bounds of appropriate vitriol in a book review. If you are interested, I recommend Brian's links to the various original pieces, as well as the extensive commentary on the issue over at Leiter Reports.

I can only think this dispute hit the Guardian and the New York Times because nobody outside of The Academy could fathom that much anger over the issue I just characterized, and so there must be something more to the plot. Indeed, the principals argue about that as well. That, it seems, is the unfortunate aspect of the whole dispute, reinforcing as it does what must be a schadenfreude-filled view from the outside of the joylessness inside The Academy. I personally, being new to The Academy, and despite hearing rumors to the effect that this goes on, and despite now having been to several faculty meetings, have never actually had the conscious experience of what follows, so, again, I rely on Jack Getman's description: "Powerful feelings were evoked by the most technical or trivial of issues. When we considered a minor change in the exam schedule, the debate was barely civil. . . . Debate at faculty meetings often resembles one-on-one schoolyard basketball more than it does serious academic discussion."

I confess to as much fear of failure as the next person (I still tend to the math exam stress dream, but see Liz Glazer and Bruce Boyden for more on this), and it's not helping that what I really want to write and think about next is the relationship between consciousness and our sense of justice (working title: "Justice is Like Greenness: Reflections on the Rule of Law"). I come to the conclusion that one has to work at provoking one's sense of joy as much as one spends cataloging the miseries. I have these moments of what Abraham Joshua Heschel called "radical amazement" that push me to the non-reductive side of the consciousness debate, and I want to talk about them, but I can't imagine getting mad about it (unless, I suppose, somebody writes a review of what I say and calls me a worthless idiot). The moments happen in teaching, as when a student's light goes on, or in collegiality, as when I had wonderful conversations with people on my faculty I didn't know before (like Steve Eisenstat and Marie Ashe), or in "scholarship" when all the sudden a piece falls into place, or in simple effect on the world, as when somebody at AALS told me that he used one of my short essays as the basis for a take-home exam in advanced contract theory.

Mike Madison observes that physicists seem to have come to terms with both open-access and traditional publication, theorizing that they have less vested in the utils of the self-contained economy of prestige, because they are in pursuit of the Grand Theory of Everything. If it's even possible that the rest of us are collectively chasing our tails, rehashing the same debates endlessly, then as I've said, paraphrasing Robert Louis Stevenson, it really is better to travel hopefully than to arrive.

Posted by Jeff Lipshaw at 12:20 PM | Comments (2) | TrackBack

How Should Courts Handle Cultural Dissensus on Summary Judgment?

That's the deep question unanswered by last year's Supreme Court decision, Scott v. Harris. As Dan Kahan announced here on Balkin, he, current guest-blogger Don Braman, and I have written a paper testing the majority's view that no reasonable jury could or would find for the plaintiff after watching this videotape. The experiment we conducted was simple and intuitive: we showed the video to a 1,350 member subject pool and asked them about it. Our first circulating draft, Whose Eyes are You Going to Believe? An Empirical (and Normative) Assessment of Scott v. Harris, can be downloaded here.

Overall, we found substantial support for the Court's position: most members of the subject pool agreed with the majority about the risks posed by the police chase, the relative fault of the parties, and the ultimate questions of justification. But does majority support mean SJ is correct? Our thought was that that question can't be meaningfully answered without some understanding of the characteristics of the minority of people who would disagree with the court. We wanted to identify who those people were and figure out whether there was any explanation that might explain their differing view of the tape besides that they are unreasonable. In particular, we wanted to test the hypothesis, grounded in cultural cognition theory, that the dissenters would not be random statistical outliers but persons disposed by shared cultural values and other characteristics to process visual information in the tape different from how the majority did.

Our results showed exactly that. Dissenters to the Court's view of the facts and the appropriateness of summary judgment were linked by shared cultural styles that features a commitment to egalitarianism and communitarianism. By the same token, subjects who were strongly inclined to see things the Court’s way were linked by commitments to hierarchy and individualism.

Drawing on Joseph Gusfield's work on “status collectivities," we imagined four potential members of the venire: Pat, Ron, Linda, and Bernie. You can see their pictures to the left. Ron is a rich Goldwater republican from Arizona. Bernie is a socialist professor from Vermont with average income. Linda a social worker from Philadelphia, whose income is also at the mean. And Pat is the average American in every respect.

Using statistical simulations, we found that these individuals would have very different reactions to the video, based on their distinct forms of culturally motivated cognition of the risks involved. Take, for example, subjects' reaction to the statement “[t]he danger that Harris’s driving posed to the police and the public justified Officer Scott’s decision to end the chase in a way that put Harris’s own life in danger." The graphic below illustrates how Ron, Linda, Bernie and Pat will respond.

At least three-fifths (64%, +/- 4%) of the persons who share Linda’s characteristics “disagree”—about one-half either strongly or moderately—with the statement and thus the result in Scott. Those who hold Bernie’s characteristics see things in nearly exactly the same way as those holding Linda’s. Pat does agree with the Scott majority, although not without a bit of equivocation. There is a 60% (+/- 3%) chance that a person drawn randomly from the population would either moderately or strongly agree