Final Exams (Suggested Templates)


In light of the recent election and the desire of professors to remain relevant, here are some suggested templates for use in drafting final exams within your department.


What does the high-end commercial construction business teach us about how to run the federal government so as to improve the American economy and the welfare of the American people?   (maximum word count: 28 words)


“Amateurs and Professionals”

The amateur/professional distinction is long-standing in western thought.  In light of the recent election, please explain which is which, how one can tell and whether it’s all going to be amateurism from here on out.    (Please note that use of definitions, stipulations, the ideal observer or the like will be penalized.)

Political Science

We do not have exam templates for you.  Please contact your department chair as soon as possible.   This major and the department have been discontinued.   Exams are canceled. Tenure relocation pursuant to Regent Rule 10-5-23 in Journalism or Theater Arts is advised where possible.  For further career advice, see  http://kremlinology–WTF happened?


We do not have exam templates for you.  Please contact your department chair as soon as possible.   This major and the department have now been merged into Theater Arts.

Theater Arts

We do not have exam templates for you.  Please contact your department chair as soon as possible.   This major and the department will continue, but all classes and workshops are canceled.   It’s all a four-year Twitter externship from here on out.  (Good luck with that).

Bonus Question

What do cultural conservatism, proto-fascism, crony capitalism, industrial policy, free-range ignorance and white supremacy have in common?  (maximum word count: 1 word).


For further context on the above templates, see generally The Knowledge Bubble by Schlag.


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This is Not a Law Review Article

By Pierre Schlag *

March 31, 2016

Keywords: law review article, absurd, cass sunstein

Abstract: This short piece [does not] describe the form, structure and vexations of the law review article qua scholarly artifact. It also [does not] contain Professor Max Stein’s latest thoughts as articulated in Schlag’s recently published novel, “American Absurd.”


This is not a law review article. In an earlier version, it was a law review article. Here specifically—in the last post. But now, it is no longer a law review article. It is not a law review article because a “processor” at SSRN determined that it was not “sufficiently scholarly.” Accordingly, it was not sent out to the e-journal editors, but merely posted on SSRN as a kind of stand-alone text.  And so it exists in a kind of cyber-version of what used to be called, “the limbo of the infants.”  Or to put it in a  more wizened idiom: “Forget it Jake—it’s not listed.”

In my youth (i.e. last year) I would have railed against the machinations of bureaucracy, the insidious enforcement of categorial matrices that screen out the deviant and the interesting (in my case, hopefully a combination of the two).

But now I am tired. I have dwelled too long in the leisures of laudanum to muster the energy for it. The most I can do, at this point, is take a quiet resigned pleasure that it has come down to this: My work has been rejected by a “processor.”

Actually, this quiet resignation thing is not entirely true. More accurately, it is false—in fact a concatenation of lies, a veritable feast of falsehood. In fact, the real truth of the matter is that I am nearly bursting with joy.

Think of it: My work has been screened out by an SSRN “processor”!   Now, I ask you:  What more fitting end can there possibly be for the moniker “pierre schlag,” than to be screened out—“approved” but “not distributed” (this is SSRN lingo)—by a “processor”? A processor no doubt following protocols—protocols that you and I both know must exist (and that we both recognize as necessary to an endeavor like SSRN).

Still, never in my wildest dreams had I anticipated that the end could come like this–Indeed, how could I possibly ever (ever) write anything again after this?  I mean, it doesn’t get–it couldn’t possibly get–any better than this. This is “Spam Jurisprudence” confirmed. “The Faculty Workshop” operationalized. “Dinner at Langdell’s” served.  I mean this is the sort of performative confirmation of all that stuff I’ve been saying for years about pre-figuration, screens, indicators, proxies, standardization, automaticity.   To me this is manna from heaven.

Now I must say that I do not actually know (I did not ask SSRN) why my article was deemed “insufficiently scholarly.” And it’s not as if the SSRN processor—Is this a person? A program? A hybrid? —could not have had reasons. It could have been the mock advertisement for fictional tenure services in the middle of the article. It could have been that I quoted a fictional academic character from my recently published novel “American Absurd” (now available on Amazon here).   Or maybe it’s the bizarre but tenacious either/or notion that if something is funny, it couldn’t possibly be serious. Or maybe–just maybe–the processor made a substantive determination that there wasn’t sufficient scholarly content.

That could well be. It is a very (very) short piece after all. And deep or sustained—it surely is not. So it’s arguable that it’s not sufficiently scholarly.  It is not a crazy idea by any means.

Still, think about the relevant baseline here.

O.K.   Moving on.

So this is where things stood a few days ago. And then I blew it. I totally (totally) tear-my-hair-out bite-my-fingers blew it. The chance of a lifetime and I—you will not frigging believe this—appealed to SSRN. Yes. I did. And the SSRN staff has been nothing but courteous, helpful, and professional.   And timely too.  The result—now you see where this is going—is that SSRN has agreed that “The Law Review Article” should after all go out of to the e-journal classifiers. The determination of the processor has been vacated.   Yep. And it is all my doing. I did this to myself. (If you need a visual, simply picture here the Chris Farley SNL skit where he is tearing his hair out and yelling, “So stupid. I’m so stupid.”)

Anyway,  as a result of all this, the determination of the processor has been vacated. So in all likelihood, there is no real future for “This is Not a Law Review Article,” In all likelihood, that is a version that I will never write. Or if it is to be written, it would have to be done very quickly—before the classifiers decide to distribute the earlier article. Even then, we know that there wouldn’t be a much of a future for the piece.

So it goes. I am reconciled. Anyone seen my boulder?

Update 4/3/2016  (The article is being distributed.  “This is not a Law Review Article” is being considered for limbo.)

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The Law Review Article

Just posted on ssrn and bepress:

The Law Review Article

By Pierre Schlag *

March 11, 2016


Keywords: law review article, absurd, cass sunstein,

Abstract: This very short piece describes the form, structure and vexations of the law review article qua scholarly artifact. It also contains Professor Max Stein’s latest (fictional) thoughts as articulated in Schlag’s recently published novel, “American Absurd.”


The most important thing at the beginning of a law review article is to excite the reader’s imagination, to evoke the hope that what comes next is truly gripping. A page-turner. Something totally out of the ordinary. Perhaps not even a law review article at all. Once this moment is reached,….

[For the rest see here on ssrn or bepress]


“American Absurd”

Available on Amazon March 15th:

Front Cover 3D Square Canvas Small[2].jpeg




Posted in Random Jurisprudence, satire, Uncategorized | Tagged , , , , , | 1 Comment

American Absurd

Square Ad[1] copy(Pre-order from Amazon)

Posted in Experimental, Nature/Culture, Politics, Uncategorized | Tagged , , , , | 1 Comment

Dear Black People, Part Two

Nine African Americans—a beloved pastor, a track coach, and a grandmother among them—were murdered by a White racist who, in his own words, hoped to spark a civil war and get his country back. It is obvious that the killer/terrorist is a product of racist thinking, overt as well as of the dog whistle variety. He may also be deranged, psychopathic, and so on. But even if he is mentally infirm, his deficiency followed a well-worn path created by rational people who embrace the color line either because they benefit from it or are afraid to be without it. In addition to this layer of rational racists, there are strata of White people who do not think of themselves as racists, and who may even actively oppose racism, but whose lives and economic wellbeing are better off for being White and not Black, and therefore who also bear responsibility for the production of this White racist killer. Who are these White people? All of us.

And here is where I have to bring up Rachel Dolezal—not the actual person, whom I cannot possibly know, but Rachel Dolezal the symbol. What she symbolizes is the White person who opposes racial hierarchy and discrimination but who cannot tolerate the discomfort of being White. Being White is not everything that White people are. In my case, being White goes along with being female, Jewish, and, like all of us, many more particular and individual things. I am not just White.

But being White, and not Black or Brown or Native, includes benefitting from the privileges that accompany a socially constructed status that is at the top of the racial hierarchy. To pretend otherwise is to deny the very structures of racialized thought that anti-racist Whites purport to oppose. Being an anti-racist White person is therefore constantly uncomfortable and difficult. We have to face, on a regular basis, that we (not personally, but as beings situated in a structure of inequality based on race) are part of the problem. We can, through individual and allied efforts, strive constantly to undermine the structures that benefit us and harm others. And many White people do. But there come these moments, like now, when we must also stand apart and simply say we are sorry. We hate this, but we are not suffering the same way you are. Tomorrow, we will again channel our discomfort into trying, with all our might, to eradicate the conditions that make me White and you Black. And until then, we will cry next to you and for you, but not pretend that our experiences are yours; that your pain is ours.

Posted in Nature/Culture, Politics | Tagged , , , | 1 Comment

Dear Black People

Dear Black People,

I just wanted to write to say I am sorry about Michael Brown, Eric Garner, Tamir Rice, and the others too numerous too list.

About Brown, the process that resulted in a decision not to indict Darren Wilson was so unusual as to appear rigged. Prosecutors rarely cross-examine and express skepticism about their pro-indictment witnesses. They also typically do not launch a wide-ranging investigation into all the possible explanations for the alleged crime. Nor do they fail to instruct the grand jury about the charges they are seeking. For that matter, state prosecutors, including those in Missouri, can charge defendants without going through a grand jury at all. Even we white people, who fail to see so much of the bias that affects you, can see that this proceeding was, for lack of a more polite word, f*cked up. As the details seep about about the failure to indict Daniel Pantaleo, Eric Garner’s killer, the story appears to be similar. A grand jury, the saying goes, can indict a ham sandwich. But apparently a grand jury cannot indict a white police officer for killing an unarmed African American man.

And I am sorrier still for the conditions that surround the deaths of all these African American men. They include the high rate at which police kill young black men generally. They include the continuing inequality of income, wealth, employment, and education for black people. They include the government and private sector’s role in all of these phenomena: our history of redlining African American and integrated neighborhoods, our history of disinvesting in public institutions in ways that have discriminatory effects, our history of eliminating public sector jobs that benefit rising working and middle class African Americans, our history of disproportionate criminal prosecution and sentencing, and most of all, for the fact that none of this is only history. It is our present too.

I am sorry that much of this has gotten worse, not better, under the watch of our nation’s first African American president. Many of us, if I might speak across the racial divide for a moment, had great hope that President Obama would lead us all to a more honest understanding of race and its continuing role in subordinating millions of African Americans. But instead, his presidency seems to have brought out the worst in some of our fellow citizens. Their racism against him has made it harder to address the structural barriers to equality–inadequate health care, drastically unequal education, huge disparities in wealth, and so on–that compound racial discrimination. To be clear, I do not blame the President for the entrenchment of racial discrimination. Yet it is a grievous disappointment that his election did not signify the beginning of something better, something closer to the erasure of the color line. But it did not.

I am sorry that your sons and daughters are not safe, that they cannot goof off, go shopping, rent apartments, walk or drive in some neighborhoods, and myriad other everyday activities, without your worrying about them. Will they come home? Will they get arrested? Will they have that first moment of realizing they are different, that the world views them differently, that they are less free?

Finally, I am sorry to be writing to you as a group. I know you are not one big family, a monolith that experiences everything the same way. I do know that. But I also know that white people have not kicked their habit of racism, of not seeing what is inconvenient and unsettling to see. So, dear Black People, I have little to offer other than these words and the hope that some day, through conflict, struggle, the hard work of politics and the occasional soaring communion of high ideals, we may reach a day when we white people get it– when no one is disposable, when everyone matters, and everyone gets justice.

With respect and love, White Person

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Coase’s Conception of Production Factor Costs (and the Coasean Challenge)

Here I want to lay out Coase’s conception of production factor costs as articulated in The Problem of Social Cost.  Coase’s conception of production factor costs has very significant implications for what might be called the “Coasean Challenge”–a challenge which in my view has been all but ignored by Chicago Law and Economics.  We start with the Coasean Challenge and then show how Coase’s conception of production factor costs greatly amplifies the difficulties of that challenge.

The Coasean Challenge

In The Problem of Social Cost, Coase deals with the “harmful effects” that result from conflicting resource use (e.g. cattle ranching and farming).  In his article, Coase identified the then-dominant “Pigouvian” approach, as follows:   First, the harm from resource conflict is identified as an “externality” (Coase did not use the term for good reason) and second some sort of government regulation (a tax, a liability rule, etc.) is imposed.

Coase was highly critical of this approach.  He argued that harmful effects can be addressed in a number of ways–not simply, government regulation, but by the market or internally by the firm.  In The Problem of Social Cost, Coase deftly showed that at least sometimes, government regulation would be less desirable economically, then doing nothing and letting the market and the firms fashion their own arrangements.

It is clear both in terms of Coase’s general orientation and the tenor of The Problem of Social Cost that Coase was trying to correct what he perceived to be an overly enthusiastic endorsement of government regulation by economists. As he put it: “All solutions have costs and there is no reason to suppose that government regulation is called for simply because the problem is not well handled by the market or the firm.” (Coase pp. 18–19.)   Right.  But Coase was a scrupulous thinker and thus he recognized that, on some occasions, regulation might be preferable. In a passage which could not possibly be quoted enough (and probably ought to be committed to memory) Coase wrote:

There is no reason why, on occasion, such governmental administrative regulation should not lead to an improvement in economic efficiency. It is my belief that economists, and policy-makers generally, have tended to over-estimate the advantages which come from governmental regulation. But this belief, even if justified, does not do more than suggest that government regulation should be curtailed. It does not tell us where the boundary line should be drawn. This, it seems to me, has to come from a detailed investigation of the actual results of handling the problem in different ways.(Coase pp. 18-19 ).

This brings us within reach of the Coasean Challenge.   This challenge is simple enough to elaborate (somewhat harder to resolve).  For Coase, in any situation where there are conflicting resource use problems and thus attendant harmful effects, there are three major solutions available: the firm, the market, and government regulation.

Recall Coase’s rancher/cattle hypothetical. If the cattle are not restrained in some way, they will eat the farmers crop. This is what Coase calls a “harmful effect.”  What to do?  Answer–at  least according to Coase: There are  three systems of coordination available.  (Today we would list more, but never mind).  Here they are:

1.  The Firm: If somehow the rancher and farmers were subsumed in a single firm (merger, buyout, etc.) then the firm’s profit maximization incentive would push toward an efficient solution. If it was more remunerative to allow free-range for the cattle, the firm would do that. If instead, protecting the crops from the cattle were more attractive, the firm would build a fence and do that.   The upshot here is that one solution to a conflicting resource problem is to subsume the two conflicting activities within a single firm.

2. The Market: Another option (not unrelated to the first one) is to allow the market actors (ranchers and farmers) to strike a deal on the market. Coase’s notion of opportunity costs means that each actor has to consider the possible receipts not just from its own respective productive activities, but from each other. Hence, the farmer may increase receipts by curtailing farming in exchange for a payment from the rancher. Or vice versa. If transaction costs are too high, however, and they cannot afford to strike a deal, whatever the law establishes as the baseline or default legal regime (Rancher liability for harm to crops? No liability? Something else?) will remain the final one.

3. Government Regulation: Yet a third option is to use law or government regulation to address the harmful effects problem. The effort is to try to decide what would be the optimal arrangement and impose it through law–taxes, liability rules, mandatory rules, etc.

In the Coasean world, these are the basic options.  Coase at times writes as if these coordination systems were analytically distinct. But one should not make too much of this: His key point is that each has effects upon and is dependent upon the others.   And indeed, it is obvious at this late date that 1) each is always attended and affected by the others and 2) there are a rich panoply of options or mixes of these different coordination system. (Note in this respect that Sunstein’s and Thaler’s “nudges,” Ian Ayres “altering rules” and the ubiquitous sticky/non-sticky defaults are simply some of the currently more popular or at least most visible elaborations of this point.)

And now we can articulate Coase’s Challenge: How are we to choose among the three coordination systems?   Which ones should we tinker (or not tinker) with?    More specifically: Should we leave well enough alone (the do-nothing strategy) and let the market and/or the firms adjust? Should, we instead use the law to tinker with the market (perhaps enable a market to emerge)?   Should we tinker with the law so as to induce the firms to reorganize (i.e. consolidate ranching and farming activities)?  Should we decide that transaction costs are such that there is nothing to expected from changes in the markets or the firms and thus we should impose some tax, liability rule, new property definitions, etc.? Or should we decide to the contrary that even though we cannot expect the market or the firms to reorganize (no matter what we do with the law) we would be better off nonetheless doing nothing?

Coase was keen on making sure we understood this last point (this is the main lesson of his train sparks hypothetical), just because we have a harmful effect and neither the firm nor the market handle it well, this does not mean that we will necessarily be better off with government regulation.  It may be that in terms of economic performance, the best thing to do is to let the harmful effect occur.  This (perhaps surprisingly) brings us to the notion of “production factor cost.”

Coasean Production Factor Costs

In neoclassical economics, a production factor cost is basically the cost of an input in production—usually, conceived as land, capital, and labor. Sometimes economists suggest additional categories (e.g. technology, education, knowledge, entrepreneurship) and then a debate ensues (one I don’t wish to join) about whether these are in fact distinct production factor costs or whether they really are aspects of the original big three (land, capital, and labor). For our purposes, a production factor cost is the costs of inputs in a production enterprise.

Now, the interesting thing is that Coase offers a different take on production factor costs—different at least from most of his fellow economists at the time.  Specifically, Coase recognizes the role that law plays in deciding what is a production factor cost of what?  Economists, he argues, should think of production factor costs less as the costs of physical things and more in terms of legal entitlements.

Take the familiar example of a steel factory emitting smoke that damages nearby commercial activities (e.g. a laundromat). Coase’s point is that if the steel factory is prohibited from emitting smoke by regulation then smoke abatement (or cessation) becomes a production factor cost of producing steel. If by contrast, emitting smoke is allowed with no legal consequence, the smoke damage becomes a cost of any activity potentially damaged by such smoke. In other words, the law (the way it is structured and organized—liability, no liability, tax, regulation, etc.) effectively decides, in many cases what is a cost of what. Coase makes the point very clearly in the concluding sections of The Problem of Social Cost:

A final reason for the failure to develop a theory adequate to handle the problem of harmful effects stems from a faulty concept of a factor of production. This is usually thought of as a physical entity which the businessman acquires and uses (an acre of land, a ton of fertiliser) instead of as a right to perform certain (physical) actions (Coase pp. 43-44).

This moment is huge.   It is huge because it is an affirmation that law plays a crucial role in establishing production factor costs—the kind of costs (identity—e.g. cost of abatement, cost of relocation, cost of…) and their magnitude (dollar amount). Coase, a free market proponent (at least in inclination) is corroborating what many of us who grew up on the Robert Lee Hale–Duncan Kennedy axis of economics believed all along—namely, that law plays a crucial role in establishing the costs of goods (of all kinds).  Law (common law, constitutional law, etc.) is undeniably and intimately involved then in the disbursement of penalties and subsidies (deciding what is a cost of what?) to various activities.

I say penalties and subsidies in the sense that we are socializing the costs of private activities through law and we have no neutral baseline available to tell us across the multitude of existing and potential markets which markets and which activities we should subsidize or penalize how much when.

Now, if we can bring in the Coasean Challenge, as described above, the question arises: in cases of conflicting resource uses, what aspects of the coordination systems should we tinker with—let the firms and the market deal with it? Change the law in some way? Do nothing? Notice that this was a daunting question even before we started thinking about the Coasean conception production factor costs.  Now that we are confronted with Coase’s legalist conception of production factor costs, the challenge has become even more difficult. Why? Because it now looks like when we change the law (or keep it the same) we are unavoidably affecting the size and magnitude of the production factor costs of various private production activities. So how much should we subsidize or penalize them (size) and what costs should we, in fashioning our law, impose on them (magnitude)?   There is even the further question–fodder for a later post: what kind of cost is to be allocated to which coordination system: the firm, the market, the law?  But bracket that for now.

It is perhaps surprising, but Coase has effectively shown that law (common law, constitutional law, etc.) is in effect a socialization of costs.   Such socialization is unavoidable.  Even the most libertarian or laissez-faire regimes are involved in such socialization of costs.

The only question worth arguing after Coase then is how to talk about this socialization of costs.  For that purpose the broad-gauge and deeply cliched disputes about “big government” versus “the free market” or “individual freedom” versus “command and control ” (or even “nudge” versus “mandatory rules”)  are rather crude.    Rather we should face up to much more circumspect, interesting, and important questions on which we might actually make some headway (or at least carry out some useful experiments): which costs and whose costs do we want to socialize when for how long by what means?   This, of course, is an obviously political question (the distributive justice stakes are high)… but my point… is that it is also inexorably an economic question as well and that the failure to confront this question yields not only bad politics, but bad economics.   Coase Minus the Coase Theorem contains the full argument.

Posted in Organized, Politics, Random Jurisprudence | Tagged , , , , , | 2 Comments

Coase’s Critique of the Neoclassical Model–Coase Minus the Coase Theorem

Coase Minus the Coase Theorem, is among other things an attempt to retrieve the meaning of Ronald Coase’s famous article, The Problem of Social Cost, 3 J. L. & Econ. 1 (1960) As I try to show, Coase advanced a serious critique of the neoclassical model in that piece–namely, the notion that the neoclassical model, by excluding law from its ambit, is hopelessly flawed. That main point and Coase’s considerable argumentative support have been lost throughout the years in ways that have seriously compromised economic analysis of law–in particular Chicago L&E.

Perhaps it is not surprising that the most cited article in American legal thought has been so persistently and repeatedly misunderstood, but Ronald Coase’s The Problem of Social Cost, has. Things got off to a bad start early with Stigler’s formulation of the “Coase Theorem.” This made its way into print in 1966 with the publication of the third edition of George Stigler’s “Theory of Price.” Stigler underscored what he took to be the key insight of Coase’s article, namely that with zero transaction costs, the allocation of legal entitlements would not affect efficiency.

Over the decades, the overwhelming majority of lawyer-economists came to accept, (however wrongly) that this was the major contribution of Coase’s article. Still how odd. After all, Coase nowhere mentions the “Coase Theorem” in the article (the closest we get is page 8). As for transaction costs—it is defined in one paragraph on page 15. If that’s the punch line, what then is the rest of the article about? (More on that later.)

Having reduced Coase’s broadly-ranging article to a mere theorem, Stigler compounded the problem by focusing on the wrong branch of the theorem—opining that (owing to zero transaction costs) law often has no effect on efficiency. For a very brief moment, some pioneers of law and economics followed through on this idea, championing the notion that insofar as most exchange situations were characterized by zero transaction costs, the best thing law could do was to “leave matters alone”—that is to say, avoid imposing positive transaction costs through interference with contractual exchange. “Void as against public policy”—that was precisely the sort of legal imperative to be avoided. This laissez-faire approach did not have much of a future. Not only was it predicated on false assumptions, but it did not provide much in the way of a research agenda: Indeed, there wouldn’t be a whole lot for law and economics scholars to say if the compulsory refrain was: “Stop this law thing! Create property rights and leave things well enough alone!” To be sure, you can get a few readable articles out of that. Maybe 30 or so. After that, diminishing returns set in fast.

So, of course reversal was imminent. It happened quickly. Soon positive (in fact, prohibitive) transaction costs were seemingly everywhere. Enter then Kaldor and Hicks and “hypothetical markets” and the sustained attempt to model laws on what bargained-for exchanges would have produced in the absence of transaction costs. This was the famous and once omnipresent “replicate the outcomes reached in a zero-transaction cost world” iteration of the Coase theorem. This misunderstanding of Coase’s work has lasted quite a while. It spawned a capacious research agenda. Not only was there the need to identify all possible transaction costs—a task which, if one read Coase carefully would be nearly endless (notice that language itself is, inter alia, a transaction cost)—but there was the need to identify all those bargained-for exchanges that were not happening yet would be, but for the presence of prohibitive transaction costs. This was, for the reasons just stated, an ambitious research agenda with a long future. But it too was built on a foundational mistake. For an extended description of the misunderstandings of Coase’s work in this regard, see my Appreciative Comment on the Coase Theorem—A View from the Left. Coase, for his part came to reject explicitly the “replicate the zero transaction cost world” approach. As he put it in 1988: There’s not much point in dedicating ourselves “to a detailed study of the world of zero transaction costs, like augurs divining the future by the minute inspection of the entrails of a goose.”

In that same year, Coase complained trenchantly that the Coase Theorem was getting all the attention much to the detriment of the latter half of his article. At about that time, I noticed something rather odd about Chicago’s “replicate the market” use of the Coase Theorem—namely, that at the level of form, this approach repeated exactly the same mistakes that Coase originally detected in the Pigouvian approach. How was this possible? I wrote another piece to show how Chicago L&E had managed to repeat exactly the same mistakes. This was The Problem of Transaction Costs.

It was not until I reread Frank Knight’s Some Fallacies in the Interpretation of Social Cost and delved seriously into the work of Robert Lee Hale (and then Wesley Newcomb Hohfeld) that I focused on the full significance of Coase’s critique against the neoclassical model. And, of course, I wrote another piece: Coase Minus the Coase Theorem–Some Problems with Chicago Transaction Cost Analysis, which came out a few months ago. Following through on the earlier pieces, the argument focuses on the three main points that Coase argued in The Problem of Social Cost. These are conveniently found in the concluding section of his article:

 1.   The mistaken presumptions of the Pigouvian approach                                                  2.  The fallacies of the neoclassical model (notably its presumption that pricing markets work costlessly)                                                                                                              3.  The need to rethink factors of production in legal (not physical) terms.

The bottom line of Coase Minus the Coase Theorem is that Coase came to realize in a Hohfeldian way that law and laws play a crucial role in establishing the identity and magnitude of production factor costs. This recognition is, according to Coase, fatally missing from the neoclassical model with its assumptions of zero transaction costs—its assumption, in other words, that pricing markets work costlessly. This was the core of what Coase was saying. He was most certainly NOT saying that…

1.  the real world is often characterized by zero transaction costs,
2.  we should try to approximate the outcomes parties would reach in a zero transaction cost world.

Coase’s corrective to the erroneous neoclassical assumption of costless pricing markets is to recognize that law and laws must be taken into account in ascertaining the efficiency of market arrangements. For that purpose, and this is the kicker that undermines conventional Chicago law and economics, the neoclassical model is not up to the task. It is not up to the task precisely because it always already fails to take law and laws into account. Playing catch up by trying to apply the model to law (that is Chicago L&E key agenda) is not a viable option: The model is not equipped to adjudicate the efficiency of law and laws because the model is always ab initio lacking a sound method to the analysis—to wit, an economic account of law and laws on the identity and magnitude of production factor costs.

Demsetz agrees with Coase that the neoclassical model excludes law and its institutions from the model. But, Demsetz wants no part of Coase’s effort to acquaint the neoclassical model with law and laws.  On the contrary, wishing to preserve the integrity of the neoclassical model, Demsetz contests Coase’s efforts to include law and its effect into an assessment of economic performance. Whatever help this may provide the economists (they do after all use the model for a variety of purposes) it will not help the lawyer-economists who are concerned with the economic performance of law and laws.

Did Coase have anything constructive or prescriptive to say on that issue? Yes he did and this is the last part of the puzzle—the clincher so to speak: The mystery is that Coase’s constructive suggestion is so strikingly modest and so sketchy.    The question is why?  Why so abstract, so sketchy, so lacking in technical specificity?    The answer is that Coase had uncovered a problem he was not then (or later) able to resolve.   Neither was anyone else.

What Coase advised was to abandon the widespread Pigouvian (one might almost substitute “microeconomic” for “Pigouvian” here) effort to compare an actual state of affair to the neoclassical model’s idealized mage of pricing markets (decentralized, divisible goods, etc.). Instead Coase counseled a kind of opportunity cost approach. Specifically, Coase advised abandoning evaluation of economic performance according to an actual-ideal model (i.e. how well does the actual approximate the ideal?) in favor of a more free-ranging comparison of the present “social arrangement” (his words) with proposed improvements. In other words: Is a proposed change in the present “social arrangement” likely to lead to better or worse economic performance?

Notice that elliptical term “social arrangement.” What is a social arrangement you might reasonably ask? It is a particular mix of the usual Coasean social coordination systems—to wit, a particular mix of market, firm, and government. How then you might ask are we supposed to evaluate whether a proposed change in the mix is better or worse according to Coase? That’s the ten thousand dollar question as we use to say. It’s not just a question of what standard to use (i.e. willingness to pay) although Coase has interesting things to say about that. It’s also (and more problematically) a question of making an evaluation according to some presumably unitary model of the behavior of firm, market, and law? Uhm… what model is that? Don’t have one. Hence, Coase’s heuristically helpful though methodologically empty suggestion that we compare different “social arrangements.”  Now, please note that I am not knocking Coase in my article. Coase is on the right track. I am merely pointing out the methodological modesty of this stance. I don’t know that Coase thought this was a modest stance. I am not sure he appreciated—maybe he did/maybe he didn’t—the magnitude of the problem he uncovered. It’s just that relative to the confident claims to knowledge of Chicago L&E, Coase’s constructive suggestion emerges less an answer than a very tentative and abstract sketch of what such an answer might look like. (More on that later.)

For now, it would be fair to say that Coase…

1.  Made some devastating arguments against the neoclassical model
2.  Perceptively diagnosed the sources of its flaws
3.  Offered an insight about the kind of analysis that ought to be developed….

… the latter remaining to this day incomplete, underspecified, and surprisingly (given all the work performed in the meantime under the aegis of L&E) virtually nowhere.

Now, my understanding of Coase departs so much from the received wisdom that it can be difficult to grasp.  I can sum up the point of my latest effort succinctly (trusting the reader to glean for herself or himself the nuance and the details from the article itself). Here goes:

1. In order to perform a valid economic analysis of law using the neoclassical model, that model needs to be repaired along the lines that Coase suggested. That is to say, that some means must be found to supplement the model with the effects of law and laws on the magnitude and identity of production factor costs. Without such supplementation the model remains, per Coase, inadequate to perform economic analysis. It fails to account for a huge variable (law and laws) in the setting of the identity and magnitude of production factor costs.

2. The situation is not and cannot be ameliorated by applying the flawed neoclassical model to the evaluation of law and laws. It may be that this enterprise is looking for the right thing (the thing that it is missing—surely that is right) but it is still looking for it with a flawed model—one that cannot, as a theoretical matter, deliver the right analysis. (That this model may in an ad hoc way deliver the right results on occasion is not to be denied, but then again that is neither here nor there).








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Earth Day, Dog Whistles, and Zero Sum Politics

The Supreme Court’s decision today in Schuette v. Bamn would seem to have little to do with Earth Day. The Court, in a fractured majority decision, upheld Michigan’s voter-enacted ban on race based affirmative action programs in state institutions, including the State’s public universities and colleges. The ban, which came in the form of an amendment to Michigan’s state constitution, was passed in the wake of extensive litigation that eventually affirmed the constitutionality of narrowly tailored uses of race to promote diversity in higher education. The Michigan ban has analogues in California, Florida, and Washington, and represents the political front of an ideological battle to eliminate affirmative action throughout the country.

The Court’s decision today is of a piece with its long march away from anti-subordination principles, and its embrace of a mythic and ahistorical color-blind nation. Much has been written justly critiquing the Court’s approach on a number of fronts, and Justice Sotomayor, in her dissent joined by Justice Ginsburg, sums it up as well as anybody. After reviewing the grave difficulties that states have faced in remedying the severe drop in African-American and Latino student admissions and matriculations at public universities and colleges after voter-enacted affirmative action bans, Justice Sotomayor writes:

These statistics may not influence the views of some of my colleagues, as they question the wisdom of adopting race-sensitive admissions policies and would prefer if our Nation’s colleges and universities were to discard those policies altogether. . . . More fundamentally, it ignores the importance of diversity in institutions of higher education and reveals how little my colleagues understand about the reality of race in America.

The reality that Justice Sotomayor alludes to is far too expansive to summarize briefly here. Nonetheless, a short list will serve as a reminder of what our country has done to create a racial caste system that today is reflected in our prison populations, our neighborhoods, our health care system, and our public schools. The short (and incomplete) list follows: the federal government’s post-WWII “red-lining” of neighborhoods to exclude Black and integrated areas from federally backed loans, which devalued Black property, caused White flight, and increased segregation; the federal government’s subsequent refusal to enforce its own civil rights laws to remedy segregation in housing and public education; state laws that tie public school funding to property values, compounding the problems of segregation and devalued property; and state and local governments’ obsessive and racially inflected focus on criminal laws to police and further isolate Black and minority communities. And of course, there is the long list of better-known state actions, such as Jim Crow laws and their post-civil rights era incarnations.

Justice Sotomayor’s reality also presumably includes all the ways in which our racialized history is, today, obscure to many. Outright racial and ethnic discrimination still exist, but have been pushed underground and complemented by a more insidious version, a way of talking and referring to certain issues that calls up those same Other-fearing reactions without naming them. Ian Haney Lopez has aptly labeled today’s racialized rhetoric “Dog Whistle Politics,” a racism that does not have to speak its name to call out the dogs.

So what does any of this have to do with Earth Day? The narrative of anti-affirmative action and color-blindness is a narrative of scarcity: There are only so many spots in institutions of higher education, and it is not fair to exclude people from those precious spots on the basis of their (White) race. The racialized narrative of educational (and job, scholarship, etc.) scarcity is a zero sum narrative: if that Latino or Black or Native kid gets in, the White kid does not get in. Excluded from the story is the fact that the White kid might not have gotten in because of the legacy kid, the football kid, the violinist kid, and so forth. (The racialized scarcity narrative is perpetuated in an insidious way by an app that applicants can use to see what their chances are of getting into their favorite school if they manipulate their race, gender, and ethnicity. It might be a helpful antidote to develop an app to see how good your chances are of getting into prison based solely on changing your race or ethnicity.) The racialized scarcity narrative diverts us from the larger structural and class-based inequalities in our country, which become increasingly stark every year, and renders extremely difficult a cross-racial and ethnic politics of radical reform of our systems of taxation and funding of public institutions. The scarcity and zero sum narratives are the dog whistles that divide people along racial lines, and distract us from options that might lead to excellent, public, and equal educational opportunities for all of our children. They distract us from seeing that affirmative action policies are not the problem; they are a limited but still necessary measure to ensure a degree of racial and ethnic diversity.  The problems are an inadequate and underfunded system of public education, the still unfinished business of remedying our long and continuing history of racial discrimination, and our increasingly stratified distribution of wealth and networks of privilege.

Meanwhile, we do have an actual scarcity problem. The Earth and its systems need our help. Climate stability, the nitrogen cycle, species diversity, and other planetary-scale systems that have kept us in the Holocene (the era that has proven felicitous for human flourishing) for thousands of years have been put to the human test, and they are not passing. We still have time to use our technological and organizational brilliance to manage our planetary home in a way that allows as many of us as possible to live with dignity and opportunity in the company of non-human nature. We are unlikely to go that route, however, if socially constructed narratives of economic scarcity continue to make it impossible to build a racially and economically egalitarian society. Instead, we may head toward a future of increasingly extreme racial and economic inequality, where the plutocratic elites who are most responsible for the degradation of the Earth nonetheless have the best access to what remains of nature’s magic. Another way to put it is that the Supreme Court is fostering a very pernicious scarcity—namely, a scarcity in the communal solidarity necessary to make the tremendous effort that will be required to attend to the Earth. If it seems like a stretch to link today’s Supreme Court decision to this dystopian vision, cast your eyes a bit wider. What has the Court done lately to further plutocratic control of politics? What has the Court done lately to hamper environmental regulation? What are moneyed and ideological interests, including the Koch brothers and others, doing to undermine renewable energy policies and climate change science and policies? Where do they stand on affirmative action? These issues do not have to be linked politically and ideologically, but today in the US they are. If we don’t hear the dog whistles on Earth Day, we may never hear them.

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Travels in America, Part One

I was on the Atlanta-Greensboro leg of a trip to Wake Forest University for a conference on Law and Violence.  The man seated next to me and I struck up a conversation, starting with the usual small talk. “What takes you to Greensboro?”  “Work. I have a conference at Wake Forest. How about you?”  “I’m visiting my nieces. I’ve got three of them there.” “You are a nice uncle to make a trip just to visit your nieces.”  “Well, they’re great and we’re very close. So what kind of work do you do?” “I teach at a law school.” “You’re a professor? Really? You don’t look old enough to be a professor. I would guess…. You are in your thirties.”  “That is very kind! But I’m 49, so more than 20 years older than most of my students now.”  Then he asked me, “How old do you think I am.”  I turned so I could see him straight on. He was African-American, with dark skin and a smooth complexion, but some small wrinkles around the eyes. “I would say, in your thirties?”  “No, I’m just a few years younger than you—44.” “Well we’re just the mutual admiration society then!” I said, and we laughed about that, and then settled in a bit.  I took out my book and started reading. He opened a magazine. At some point we started chatting again. (Some flights are like that. People are open and friendly. Others are not; everyone dives into a book or device and pretends they are not in elbow to thigh proximity.)

He told me he was from Milwaukee. I told him I grew up in New Jersey, but now lived in Colorado. I asked him about his work, and he told me that he is a general contractor and works mostly on renovations. He had been a realtor in Atlanta, but when the market crashed he left and had to start over. He asked me if I had ever traveled outside of the country.  I said yes, including recently to Rome.  He said he would love to go to Rome some day. Two years ago he visited Finland and Latvia, and caught the travel bug.  “Really? Latvia?” I asked.  “I was there once too, but ages ago.”  “No kidding!  I was in Riga, you know, the capital.”  “That’s where I was!”  We agreed it was a beautiful city, with its cobblestone streets and medieval European look. “I loved it,” he said. “It was cool, and the food was good.” This surprised me, I told him, because the food in the former USSR was uniformly awful when I was there decades ago. He laughed and said, “Well it’s good now. And I’ll tell you what. They have hardly any Black people there, and so that was interesting.”  I asked him about that.  “What was that like? Was that kind of refreshing, because they don’t have all of our baggage? Or was it weird?”  “No, it was great. Because the only Black people they see are the ones on television, the Michael Jordans, Will Smiths, and so they think we are all rich and famous!  They see me and think… ‘he must be like Jay-Z.’”  This made us both laugh, and then he said, “But the coolest thing, and I’m going to tell you this because you seem like you get it, was that I walked out of a night club at 2:00 in the morning, and a group of women, White women—because they were all White women there—was coming toward me.  And they walked right by me without even blinking, without crossing the street.  And I saw a cop too, and same thing. He just nodded and said hello.” So I said something like, what a relief that must have been, and what a drag that he had to come home to the same old racist treatment here. And from then on, he started leaning in to talk to me, whispering almost, because he didn’t want all the (White) people around us to hear.  And what he talked about was, in short, the vast gap between what his life is like as a Black man in America and what most White people think his life is like. At one point I asked him if he thought things were better or worse now than when he was younger, or could he tell. And he leaned in close again and said, “I’m going to be completely honest with you, because I can tell you care. Things are not better but they are different. They are more underground, you know what I’m saying? But are they better? They are not going to get better because people like to hang on to what they have. And I’ll tell you something, this goes way back. In the South, they made poor white people feel better by making them think that at least they weren’t Black.  And that’s where it all starts, dividing up people by making some people feel, well at least I’m better off than they are.” No historian or social theorist could put it any more concisely or clearly than this man sitting next to me on a flight from Atlanta to Greensboro.

We talked for the rest of the short trip, quietly and intensely, about race in America, but other things too. He asked about my family, and I asked about his, and we talked about all of it, from the mundane to the personal to the deeply political. And when the plane was landing I told him that I hoped he would travel to Rome someday, as he said he wanted to, and wished him the best. He said he hoped I had safe travels, and that it was good to meet me and to talk, to really talk. We shook hands. I got off the plane feeling deeply sad about my country and its color line that has never been erased, and yet at the same time filled with wonder and a small flame of hope. Hope fueled by the sense that, despite the embedded structures of racism that divide us, strangers can connect, at least for a short while on an airplane where we are crammed elbow to thigh and provided an opportunity, if we choose to take it, to talk, to really talk.

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The Anthropocene: Everything and Nothing New

We have been kind of quiet here at brazenandtenured. Maybe it’s better that way. A friend of mine once disclosed that his goal as a professor was to write as little as possible as well as possible. Most of the world, and especially the professoriate, is going the other way. Prose–good, bad, and indifferent–flies at us from all directions. So maybe our recent silence has been a welcome counterbalance. If so, then I apologize for starting back up.

I couldn’t resist because it appears that a term that I have been using for a few years now in my writing (including in a chapter in an edited volume published by Cambridge University Press) has taken off (not at all because of me, I should add.) The term is the Anthropocene, coined by Eugene Stoermer and Paul Crutzen. It stands for the era of ubiquitous human influence on the planet. Climate change is the number one example, and all the more so now that the world’s leading scientists have prescribed a carbon budget for the planet, which we are likely to exceed in the coming decades. But there are several other indicators as well. We humans and our marks are everywhere. What does this mean? Should it change the way we think about our obligations to one another, other species, and future generations?

I am now immersed in working on a book on these questions, which fold in many others, including more than a few legal ones.  Here is an excerpt from the preface and introduction. (All the usual copyright protections apply.)

Parenting the Planet DRAFT


Like more than half of the people in the world, I did not grow up in a pastoral, rural, or remotely wild setting.  Englewood, New Jersey, where I was raised, is one of hundreds of tightly clustered suburban towns that fan out from New York City. To provide one highly idiosyncratic measure of the region’s density, from the front door of my childhood home, I could do several different eight to ten mile runs that took me through at least three other towns. The closest thing to a trail run was the route that my high school track coach called the Manhattan Touch, which went up the hill to Englewood Cliffs, through the trash-strewn strip of trees on the Palisades overlooking the Hudson River (I think this was some kind of park or protected space), into Fort Lee, across the George Washington Bridge, and then reversed course back home. For me and my tri-state peers, the night sky had just a handful of stars. Wild animals lived in zoos. Food came in packages, often in the form of miraculous powders that became pudding, coffee, or Kool Aid.

By the time I became aware of the awesome beauty and complexity of non-human nature, it had just been pronounced dead.  I was 23 when Bill McKibben wrote the End of Nature, an early assessment of climate change and its ubiquitous influence on planetary systems. Missing out on the good times, the peak, the in-thing, is endemic to my generation. We were born in the sixties, but came of age during the eighties, the decade of yuppies and conspicuous consumption.  For labeling purposes, we warranted only an X. You would think we would be used to it, this business of being always too late.  But barely missing out on nature? That’s pretty harsh, even for the generation weaned on rap, disco, and punk. Of course I didn’t realize I had missed it until much later. Little did I suspect that as I learned to love sleeping under a glittering night sky, scrambling through obscure canyons, and walking for days without seeing asphalt, I was falling in love with a zombie: Nature, the Walking Dead. By the time I got the news, I was already smitten.  As a result, in part this book is about how to stay in love with a damaged planet. My generation and the ones after, having only had the opportunity to get to know the Earth in its compromised state, may be best situated to figure out how to move forward, soberly yet playfully, without doomed illusions of restoring the past.

There is more to it than that though. Another effect of being embarrassingly oblivious to the environment (a word that stands in for nothing less than “the physical world that sustains us”) throughout my alienated suburban youth was that I came to know nature after I came to know politics. The great discussions in my household and social circles were about civil rights, poverty, and injustices of race, class, and gender.  The issues that motivated me to become a lawyer and then to pursue a career in legal services for low-income clients were steeped in the political, legal, and social structures that caused and perpetuated inequality and injustice among human communities. For a long time, even as I became increasingly green in my personal life, including in terms of causes I supported and individual actions I took, I could not quite marry the environmentalist with the lawyer/activist. Surely my immaturity and naiveté prompted my reactions at the time, which were that environmental law was a somewhat a-political, highly technical field that did a lot of important things, but was the province of earnest hikers, the kids who joined the outdoor activity club in college instead of the protests against apartheid.

Then I lived on the Navajo Nation and witnessed two phenomena up close.  The first was the intimate, deep, and genuine connection that Navajo and Hopi people had to their lands and waters, notwithstanding that their homelands could hardly be described as pristine or untouched.  The second was the myriad ways in which laws, policies, and cultural forces aimed, in the present and for centuries before, to sever that connection. From those experiences, a way of understanding how to connect the dots between social injustice, racial subordination, and environmentalism emerged.  There is no formula for it.  The dots, even when connected, do not create a template, a grid, or a table.  At best, they illuminate patterns, beneath which lie very complicated strata of human and natural history.  The key, however, is a very simple insight.  There is no nature free of human politics. This is a very different observation from Mckibben’s, though the two can live together.  To recognize that, as a physical matter, we have influenced the course of natural phenomena everywhere on Earth is different from concluding that we have always interacted with and ordered our relations with nature according to politics.  To highlight the difference, before or during the early stages of the industrial revolution, at least some parts of the planet (deep oceans, the atmosphere, some far flung patches of tundra and rain forest, etc.) had not been permanently altered by human activity. Yet even then, human access to, understanding of, and use of nature’s physical resources (the ones we could and did reach) were mediated through power, law, and culture. A couple of well-known examples should illuminate the point. The “frontier” that was so famously pronounced to be closed in 1890 by Frederick Jackson Turner only existed because the intertwined forces of law, culture and military might created it in the first place.  The western United States was not a terra nullius—a vast empty space—when the first non-indigenous explorers, trappers, and miners stumbled on it.  It became one because of their individual and collective interests, and the pervasive presence of indigenous peoples was rendered invisible by law and violence.  Similarly, two of our earliest and most famous National Parks, Yellowstone and Yosemite, were withdrawn from “settlement” (meaning from homesteading by non-Indians) to protect their natural aesthetic qualities, notwithstanding that indigenous peoples occupied and used both areas regularly. The Yosemite people were forcibly removed from Yosemite Valley, and the Shoshone, Bannock, Sheepeater and Crow from Yellowstone. As historian Mark David Spence put it, “uninhabited wilderness had to be created before it could be preserved.” In other words, even before human actions irreversibly altered the physical course of the planet, our interactions with non-human nature took place in a space mediated and constructed by us rather than by purely physical or scientific criteria. Physical nature may still have existed separate from human influence, but what we described and valued as “natural” was constructed by law, politics, and culture.

Many prominent scholars, William Cronon foremost among them, have long made this point about the political and social construction of nature and wilderness. For a time, some saw it as an argument that threatened the more objective (i.e. scientific) bases for protecting non-human nature, and therefore tried to distinguish or marginalize its import. But today, now that the End of Nature has met the Construction of Nature, perhaps there is more room to see that science, while crucial to the effort to understand, enact, and often guide our values, does not constitute them in the first place.  We may love and want to protect Yosemite, the Mojave, and the Alaska National Wildlife Refuge today in large part because of their ecology, but their ecology did not automatically dictate their protected status.  (If it worked that way, many more places would have the same protected status.) Nature cannot command us to protect it; it has always been just us humans making the commands.  To pretend otherwise only obscures the rocky political and social path that leads to legally protected designations.

So this book, in addition to being about how and why to love a damaged planet, describes how our efforts to protect (or exploit) non-human nature have always taken place within the contested world of politics and power. In a world indelibly altered by human activities, the recognition that we have always constructed the meaning of nature can become liberating instead of straitjacketing.  Given that it is up to us, why not continue to try to save the pika, the polar bear, and even the braken bat cave meshweaver (an obscure species of blind spider)? There are many reasons to do so, including but not limited to scientific ones.  If nature did not command us to preserve these non-human life forms in the first place, the end of nature is not a reason for us to stop trying.  Seeing that ideas about nature derive from ideas about politics and culture also provides all the more reason to marry questions about how to treat each other with how to treat the environment. The dualism that haunts western thinking about nature and the environment has long masked the ways that access to natural resources, whether to exploit or preserve them, has perpetuated (and sometimes also caused or at least exacerbated) existing inequalities within human communities.  As long as nature, this thing other than us, seemed to command us to do certain things (whether exploit or preserve it) we could avoid seeing that these questions arise always in the context of larger webs of political and social ordering. Now that Nature is Us, perhaps we can see that we approach these questions, and have always done so, within existing political and cultural structures and frameworks. We can therefore approach questions about how to create a sustainable world in ways that weave political and social goals together with ecological ones from the outset. We can engage in acts of promoting democracy, freedom, anti-subordination, and human flourishing simultaneous to protecting and nurturing the non-human world that sustains us, instead of treating either set of goals as after-thoughts or appendages to the other. This does not mean, of course, that we will choose this path, or even if we do that we will succeed.  But given what’s at stake, which is nothing less than all of our intertwined fates as creatures on a shared planet, a vision of vibrant, democratic, free, egalitarian, and ecologically sustainable communities is worth aiming for, even if it’s always just beyond our grasp. And in aiming for it, we will be more likely to create the worlds, damaged though they will be, that we would like to inhabit. These, at least, are the paradoxically utopian and tragic thoughts of this Gen-Xer from New Jersey, raised in the shadow of New York City, come of age in the West and on the Navajo Nation’s high desert plateau, now writing from the foothills of the Rocky Mountains in the midst of a changing human/natural landscape.

* * *

Introduction (excerpt)

Since the first trip to the moon, we have seen images of planet Earth as a big blue marble, something any child could hold in one hand. The image is often invoked to instill a sense of our obligations to our single and shared home.  Today, the marble metaphor might also evoke a more worrisome thought: the Earth is under our thumb. Global warming is the latest example of how human activity has reached every nook and cranny of the earth’s natural systems, but it is not the only one.  The effects on the ozone layer, the collapse of fisheries throughout the world, and the accelerated species extinction rate, among many other phenomena, indicate the planetary scope of human impacts.   As Nobel prize winner Paul Crutzen has put it, we have entered the “Anthropocene,” the era of ubiquitous human influence on the earth’s geological systems. Physicist Robert Socolow similarly has suggested that today we might think of ourselves as “planetarians,” due to our wide ranging impacts.

This stage, the Anthropocene, the Planetarian, or whatever label we choose to apply, provides the occasion to reconsider our relationship with the natural world.  Just as importantly, it provides the occasion to dwell on what it means to be human and whether our capacities for moral thought and action can match our physical imprint. While there is a desperate need for sophisticated technological and legal solutions to address climate change and other global environmental challenges, ultimately our decisions will reflect our moral and ethical commitments to other humans and to the natural world, even if they will not reflect them perfectly.  Our decisions will mirror our ideas about what matters, what constitutes a good and meaningful life more than they will enable humanity to restore, preserve, or conserve (insert any number of environmental verbs here) nature as it was. This is so for two reasons.  First, our ideas about nature have always been a reflection of our ideas about society and culture, even when vast parts of the planet remained relatively unaffected by human actions.  Second, now that we are in the Anthropocene, the physical aspects of nature are and will continue to be profoundly affected by human activity regardless of the choices we make to manage, protect, regulate, or do nothing.

We should think hard about this double-whammy of “it’s all about and dependent on us.” Doing so will not lead us inexorably to shared conclusions about what actions to take any more than the image of the Earth as a blue marble automatically evokes feelings of global responsibility. To the contrary, realizing that we are the adults in charge may only sharpen the differences among us about which values should guide our decisions and actions. If nothing else, however, a fleeting glance at the awesome responsibilities of the Anthropocene may unsettle us into seeing our values clearly, reflecting on them for a moment, and, for some, jostling the recognition that the sum total of a life is nothing more or less than the effort to live in accordance with those values.

This book attempts to take that fleeting glance. It explores examples of human communities attempting to implement moral, ethical and legal commitments that reflect concern for social justice, other species, natural systems, and future generations in contexts that highlight the unavoidable challenges of the Anthropocene.  A recurring theme is that conventional notions of progress are not sufficient to evaluate whether these efforts are worthwhile.  This may sound utterly counter-intuitive.  Since the industrial revolution, progress has gone hand-in-hand with technological innovation.  For roughly the past forty years (dating from the early 1970’s, when many of the United States’ major federal environmental laws were passed), technology has, in significant measure, also allowed us to rein in some of the negative environmental consequences of industrialization.  The western developed world made substantial progress towards addressing, for example, air and water pollution through a mix of regulation and technology.  Even in less obviously technology-dominant areas such as species preservation, the combination of scientific knowledge and human ingenuity resulted in important conservation victories, such as bringing the Bald Eagle, the California Condor and other less telegenic species back from the brink of extinction.  The goals and measures of environmental law have been oriented, quite understandably, toward success that is quantifiable.

More recently, technological frames of thought, including welfare economics, market liberalism, and other rationalist/individualist approaches, have monopolized politics and decision-making in much of the western developed world. These frames have in common an outlook of perpetual economic growth that is dependent on unstated assumptions about boundless resources and/or our technological capacity to overcome any resource limitations. They also tend to instantiate a highly refined type of utilitarian calculation, often in the form of cost-benefit analysis, as their method. This has taken the notion of quantification as the measure of progress to a whole new level.   The idea is that if we reduce everything in the world that has (or detracts from) value to a fungible measure, we can calculate our way to optimal decisions, environmental and otherwise. We thereby avoid messy and contested discussions about which core values should form the bases for our actions, and instead simply run the numbers and await the optimal and efficient operating instructions.

Other writers have skillfully parried assumptions about boundless resources and cost benefit methodology. Doug Kysar in particular has challenged the concept of a value-free starting point for implementing these forms of utilitarianism. This book relies on these important contributions for its inquiry, which involves exploring a conception of how we relate to the planet, its human and non-human constituents, in ways that might supplant the dominant frames with a timelier and yet also enduring vision of ourselves and our obligations. The starting point is not value-free. There is a core normative assumption, and it is simple: we should take care of where we live. The human capabilities that accompany that assumption immediately render it more complicated, however. As human beings, we have the intellectual capacity to understand that “where we live” is both very nearby, and at the same time expands across space and time. In the Anthropocene, we live locally, yet our effects are planetary and enduring. Taking care of where we live therefore includes connecting our daily actions to their planetary effects. Yet it also implies that how we live with one another is just as important as the end goal of a healthy and sustainable planet, in no small part because we may not achieve the planetary goal, and at any rate will certainly not know in our lifetimes whether we will or not. To foster the norm of taking care of where we live in the Anthropocene, we need political institutions and legal arrangements that connect local and egalitarian resource governance with the planetary scale of environmental challenges.

* * *

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The New Normal

So is this the New Normal?   The question gets asked about lots of things—Washington politics, the economy, terrorism, infrastructure, the financial markets.   And the question gets asked anxiously because as a normal—as a baseline—this new normal (whatever it may be) is less than entirely believable.   To be sure, the New Normal is recognized in conversation—as in “Well, you know, this could be the new normal.”   But most often, it’s offered as a theoretical possibility acknowledged, but then quickly bracketed, because not quite believable.

Well, why isn’t the New Normal believable?

One reason, of course, is that it flies in the face of deep-seated American myths about collective and personal progress—about things getting better because well… things are supposed to get better.  Problems are supposed to get fixed.  Solutions are supposed to be found.  That’s the way it’s always been (not true) and that’s the way it always will be (surely not).

A second and more interesting reason that this New Normal isn’t quite believable is that we recognize that things are going to change.   Quantitative easing can’t go on forever.   Climate change will get worse.  Infrastructure, if we do nothing, will not remain at a D+.    Structural corruption of politics is self-compounding.  MOOC’s really are waiting in the wings to displace the traditional university.  Meanwhile in almost every field, (journalism, politics, business, etc.) the people who lead really are, for the most part, mediocre.  And unfortunately for us—it’s systemic: The triage, certification, and screening mechanisms designed to promote excellence and ward off decadence are themselves decadent—incapable of controlling for self-promotion effects, image manipulation or other forms of gaming.  More broadly, the mechanisms we usually rely upon to recognize, name, and correct for institutional breakdowns (e.g. mechanisms such as law, politics, journalism) are themselves broken.

The upshot?  Well, the affirmation that this is the New Normal really isn’t believable.   Unless, of course, the New Normal is defined as 1) a precarious state of affairs that will soon change radically but 2) in ways that are utterly out of our control (and out of the control of our institutions).   Now this “dynamic” conception of the New Normal, arguably does capture the moment—the recognition that things are slated to change, but in ways utterly out of our control.

And so we are waiting—essentially spectators waiting to see what is going to happen to our collective lives (and thus our individual lives).  It’s not apathy or indifference.   Nor is it that jaded 80’s or 90’s sense of postness—that everything worth happening already has.   It’s more a sense that we are profoundly irrelevant—except, perhaps in our own micro-activities.   It’s also a sense that the mindsets of the people who are relevant (think for example: Supreme Court Justices) are so historically askew to our times, so outdated in their frames, their preoccupations, their concerns, that they couldn’t possible help.

What then is this?  Full circle: It is the recognition that we are a very (very) old society and that the institutions and practices we have created over the decades (the  centuries) are too exhausted to deal with what they have wrought.   They are incapable of naming and comprehending—they have neither the language nor the motivation to register and articulate—the cultural, political, and economic forces and agencies that our constructing us and our world.    And so they just drone on (Supreme Court opinions) or they foment angry self-referential tirades (the media blogosphere) or pose and posture (Congress) or document the trivial with exacting rigor (academia) or… and so on.   And so meanwhile, we (who are also them) wait, wistfully wishing for a return to the old normal and yet knowing it’s not going to happen.

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Notes in Support of the Liberal Arts Law School

Here are a few ideas for how law schools that are not in the top ten (or not in the fifteen that are in the top ten) might respond to the structural forces bearing down on legal education. For those who haven’t been keeping up, the structural forces include: defunding of public education; rising tuition (in part due to defunding of public education but also for other reasons); increasing student debt loads; diminishing job opportunities; diminishing pay; and changes to the format and delivery of legal services. These forces have unearthed some longstanding shortcomings in legal education, and also have brought new pressures to bear. When law schools, particularly public law schools, were cheap, students did not have to worry much about how their legal education was or was not serving them.  They also did not have to worry much about landing a legal job.  The credential was helpful for a variety of career paths, and most options remained open financially. Now, students have to think very seriously about whether to go to law school and incur significant debt, and therefore become channeled into narrower career options, if they have options at all.

The top 10 or so schools will likely be able to continue with a law school business-as-usual scenario, with the possible exception that they will be engaged in global competition for students and faculty. Otherwise, a few tweaks to financial aid and loan forgiveness and a few nods to improving the quality of the educational experience should do it for them. The schools in the lowest tier will likely face an equally foregone, though diametrically opposite, future. The pressure will be great to dramatically decrease faculty scholarship and emphasize skills training and bar prep approaches to teaching. Many schools will follow this vocational-technical route in order to remain cost efficient and therefore survive.

What about the schools in the middle?  Can they, and should they, pay for faculty to write articles and books?  Can they, and should they, continue to teach theory, jurisprudence, and critical approaches to law?  Can they, and should they, pay for expensive in-house clinics where students can acquire skills in the context of intensive feedback accompanied by opportunities for critical reflection?  Here is a short outline, a sketch really, of an argument in support of the answer “yes.”  A significant caveat exists, however.  It is this:  yes, if at the same time these schools can increase the value of legal education by requiring higher quality teaching and in other ways demanding more of their faculty, without doing so in unimaginative ways that lead solely to a vo-tech model.  Law teaching can continue to be one of the last great jobs, but only if faculty can respond constructively to the changes facing us and our students.

The Case for the Feisty Liberal Arts Law School, in Outline Form:

–Our society is riddled with law, and will continue to be so indefinitely.

–People, poor and rich, will always need excellent lawyers when things go wrong (divorce, death, catastrophic injury, foreclosure, injustice, etc.)

–The top ten schools cannot produce enough excellent lawyers for all of society.

–Excellent lawyers not only have the best skills, they understand how to dissect arguments and to cut through layers of obfuscation and preconception.  They are, in other words, interpreters and translators.

–The ability to interpret and translate requires critical thinking skills and a deep understanding of the structures of language and argument.

–Excellent lawyers also know how to make their arguments resonate with deeply held beliefs.

–Knowledge of history, including legal and intellectual history, is necessary to speak in a register consonant with people’s deeply held beliefs.

–A legal liberal arts education, along the lines of what is available at all good law schools, provides access to professors (both clinical and non-clinical) who can teach critical thinking, legal and intellectual history, and legal theory, all of which are necessary to produce excellent lawyers as described above.

–Professors inclined to teach in these ways can add knowledge to the world (through their scholarship), that most judges, lawyers, and law-makers cannot.  Academics can take the time to study a field of law in its historical sweep. They can dissect the moves and unearth the assumptions in a line of legal argument that have, sometimes dangerously, been left unexamined. Not all of what academics do will illuminate or enlighten, but much of it will.  And if the machinery of law grinds along, with no one minding the gaps, all the skills in the world will do nothing for those who might be crushed in its wake.

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Facts (The)

These little items are trouble.   Let me state right off that I have not always been on entirely friendly terms with “the facts.”  We have had a long and, at times, uneasy relation.   Things took a bad turn early.  I was prepared to be French—to deduce (and occasionally refute) large aspects of the world without ever having to leave the Latin Quarter. Instead I had to become an American.  Pragmatic.  Fact-focused.  (I don’t want to talk about it.)

But let me explain about the facts.  First, notice, that the most factish of facts (apologies to Latour) are actually factoids—trivial data bits shorn of any actual narrative.  CNN had it down cold: “America has had five presidents who ate fish for breakfast.”  What, I ask you, could you possibly do with that qua fact?

Still, Americans like facts.  It was Joe Friday on Dragnet who first said, “all we want are the facts, ma’am.”

Just the Facts, Ma'Am: The Authorized Biography of Jack Webb

Really? That’s all?   I don’t think so.  He was on a mission.   He wanted facts on a mission. And we, the viewers, did too.

So I have to say, as a preliminary matter, things already don’t look too good for the facts. Indeed, the possibility that in their most prototypical factishisness, facts are nearly useless while in their most desirable state they are on a mission—well, that’s not an auspicious start.  For a fact.

Things get worse.  In law and social science (that’s my domain limit here—I feel really cramped) facts generally function as poseurs.  The facts, are nearly always posing as the truth about “what-is-actually-going-on.”  Facts are frequently presented as “the-real-story” or  “the bottom line.”    One is no doubt supposed to conclude from this that “facts are facts”—that they are the veritable bedrock of truth.  But notice that this doesn’t make any sense.    Notice that the “bottom line” is an accounting metaphor.   Consider that, “the real story” is an oxymoron deliberately composed of both truth and fiction.   Note that “what-is-actually-going-on” is a problematic state hanging precariously on the ungrounded and notoriously unreliable  reality/appearance pair.   All of this is to say, that the appeal of “getting down to the facts,” (or some such thing) often rests on situating the facts in some initially alluring rhetorical space (e.g. “the real story” “the bottom line”) that turns out, upon further inspection, to be constructed of images, metaphors or fictions of questionable philosophical countenance.  (See, Nietzsche, On Lies and Truth in a Non-Moral Sense)    Now, it’s not that these metaphors, images or fictions turn facts into non-facts.   But still, I ask you: what could be more humbling to a fact then to learn that it has been selected for our attention by a metaphor, an image, or a fiction?

Not only do facts frequently function as poseurs, but, when they are at their most factish, they’re often not all that interesting.   Factish facts don’t really tell you much of anything you want to know.  Imagine a party.  Here are some exemplary factish facts: There were 19 people at the party.   9 were women.  10 were men.   While the party was happening, gravity exercised a constant force of 32 feet per second/per second.  Everyone standing stayed connected to the ground.    Not the greatest narrative is it?  And notice here that if you stick strictly to the facts (if you admit only of truly factish facts) adding more of these little items will not markedly improve your story line.  (For you editors of university press books and law review articles, please pay special attention here.)

The only time facts are really interesting (remember law and social science is the domain limit)  is when they’re something more than just the facts.  Go back to the party.   Here’s another fact:  Jill left the party with Tom.   This fact is more interesting.   Well, mildly so.  With this sort of fact, you can start imagining possible implications (amorous, murderous, whathaveyou).  But note that now we’re no longer talking about “just the facts.”   We’re talking about facts with implications, facts with attitude.

Why then are facts ever interesting?    Well, ironically  it’s because they’re not functioning as “just facts,” but something more.  And that something more (call it a narrative?) is very often not terribly factish.

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Gun Culture, Part 2

The national spotlight is on Colorado, where Governor John Hickenlooper, a moderate democrat, has endorsed the idea of tightening gun control regulations. Hickenlooper and members of the democratically-controlled state legislature have indicated plans to introduce laws that would require universal background checks and ban the sale of high capacity magazines.  Colorado is rightly seen as a bellwether because, despite the current democratic state majorities, the politics here are purple in two important ways.  First, Colorado swings between republican and democratic in national elections.  Second, the current cultural and political zeitgeist is an arranged marriage between progressive and conservative forms of libertarianism.  Different factions of left and right exist, of course, but to make headway politically in Colorado is to walk that line between “let them do their own thing,” and “don’t make us do a damn thing.” (That’s why we can smoke pot legally, carry concealed weapons just about everywhere, and hardly pay any income tax!) If we can pass even these modest forms of gun regulation, maybe the federal government will be able to pull it off too.

First, a brief word of support for these modest regulations is in order. It may be the case that as a general matter it is difficult to show that local gun control measures lead to less gun violence.  But one thing is certain: fewer children would have died in Newtown if Adam Lanza had stormed the elementary school with a regular handgun instead of a semi-automatic weapon.  And fewer children would have died in Newtown if, even if armed with his military-style assault rifle and his semi-automatic handgun, he had not had high capacity magazines.  So even if we cannot prevent all Bad People from accessing guns in the future in any scenario consistent with the Second Amendment, we can prevent the hideously opportunistic nature of the mass slaughter that occurred in Connecticut by making it illegal for people like Mrs. Lanza, a law abiding gun owner and the person from whom Adam got the guns, to own the means for it.  For many of us, the prospect of saving even some of those very young children is well worth the small price of restricting what some people think of as their liberty in this way.  (And the same can be said about the Aurora Theater shooting.  Without the capacity to shoot repeatedly simply by pulling the trigger, James Holmes would have killed fewer people.  We might even, just for the moment, grant the “Good Person with a gun” fantasy it’s due, and acknowledge that such a person might have at least a snowball’s chance to stop the Bad Person, but only if the Bad Person had to pause for a second to reload before killing again.)  These legal measures, in other words, might not accomplish much with respect to our national problem of excessive gun violence.  But they are well tailored to the events that occasioned their consideration:  a “Bad” (or Mad?) Man intent on inflicting as much harm as possible with the means readily available.

In addition to the prospect of legislation, there is another indicator of a shift toward sanity about guns. A national outdoor retail chain, Jax Mercantile, recently announced that it would stop selling semi-automatic weapons and high-capacity magazines.  Jax will still sell plenty of guns, including hand guns, hunting rifles, etc., in addition to the full range of other outdoor gear.  But Jax President Jim Quinlan said it was a matter of conscience to stop selling assault-style weapons and magazines, and that 80% of the reaction to his decision has been positive.  There is likely no swaying the minority of gun owners who have convinced themselves that the core of liberty is the ability to own any and all manner of firearms in order some day to compete with a potentially tyrannical government in an imaginary (and let’s face it, unwinnable) arm’s race.  But it is reassuring to think that many proponents of gun ownership, including those who make their living off of selling guns, understand that a “right,” whatever it may mean, does not have to entail unlimited and slavish devotion to the ever-evolving technology of mass killing.

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Mayan End of the World Canceled (A Brazenandtenured Exclusive)

Apparently, through some rather incredible and oddly parallel set of mistakes, the ending of the world will not happen on December 21st.   Instead, it appears the world has already ended on November 10th.     The mistake is a moment of some embarrassment for the experts involved–all of whom seem to have been taken in.

Protests have broken out throughout the globe demanding that leaders cease their war efforts.   As one German Green Party member noted, “Look if the world has already ended, what’s the point of going on with all these wars.  I mean, really.  Think about it.  All this killing—how can it possibly help now?”

Fox News, MSNBC, and other cable shows have turned to academic philosophers to help explain the implications.  In the main—and the Anglo-American philosophical community seems to be of one mind here—whether the world ends on December 21st or has already ended on November 10th is, as one Oxford don put it, “really (really) inconsequential.  Mere facticity.   One thing is clear, however: Insofar as the world ended on November 10th,  nothing that has happened since is of any significance.”  As another Oxford don put it,  “After November 10th,  it’s all been gravy actually.   So if you’ve won an award or you got an article placed somewhere really good, well bully for you.  It’s extra.   A little bit more.   Of course, it doesn’t count.”

I asked the Oxford don, what philosophical strains looked promising in light of the world having ended.  At first, he was non-plussed by the question, but quickly recovered:  “Basically, if the world were to go on—which quite clearly, it can’t because, well you know, it’s ended—existentialism would be the only remaining option.   Asked what he thought about this, the Oxford don replied, “Well, you know, existentialism—it’s mostly French.”

Brian Leiter posted one final entry on his blog:  “The rankings are in.  The final world rankings are in.  Chicago is number one.  I AM NUMBER ONE.”

The most negatively affected group are the Nihilists who seem to have lost their entire program.  “We all feel really deflated here,” said Karl Osmann—the red-haired German leader of Nihilism Plus.    I caught up with him in a condo in East Frankfurt.   He was sitting an overstuffed chair in a darkened room gulping single malt from a bottle of Laphroaig.  “How would you feel?” he added.   “We’ve lost everything.   Everybody else had their day, you know.  The Christians.  The Marxists.  The Hugenots.   They all had their shot.  And now for us—it’s too late.  It’s like nihilism never really had a chance.   We’re all really bummed here.”

I interrupted my interview with Karl to take a phone call from  Tom Frades, CEO and Chairman of NASCAR.    His outlook seemed more upbeat.   Frades announced that NASCAR will continue the Indy 500 as scheduled—except basically the race will now go on forever.

“You mean around and around?”


“So, uninterrupted—forever? ”


I mentioned the NASCAR news to Karl Osmann.   He cracked a weathered smile around his smoldering Gitanes and said, “Well, we’ll take support anywhere we can get it.  We love NASCAR.  And we are grateful that people are still trying.”

“Any thoughts of a possible merger?”

“Not at this time,” said Osmann.

Thomas Thompson, President and CEO of the Chamber of Commerce, was also contacted He was characteristically succinct:  “You know the Mayans were also small businessmen.  You get that—right?”

Sisyphus was contacted by phone by my assistant, Francesca.  (Francesca is new with us and is just getting started so please be patient. ) In any event, Francesca reported a tense conversation.   Apparently, Sisyphus exploded in fury as soon as he got on the phone: “I knew it. I f-ing JUST knew it,” he said.   “I’m just glad that the end didn’t happen before November 10th.  Otherwise,  well—you see the point?  But does anybody ever think of calling me?  Uh?  ‘Hey let’s give Sisyphus a call?  Make sure, he doesn’t waste his time?’  No.  Never happens.  They never give me a thought.   I am outta here.”

The world was asked why it had ended and what would take its place.   As to the former, apparently, there is no reason.  “Just a change.   Last year, we all went down to Aruba.   This year, we just decided that ending it all would be nice.  Don’t read anything into it.”   As for the anticipated replacement, the world thinks it will look a lot like a 1950’s bubble gum machine.   No one knows why–indeed, no one knows why generally and the world expressed the weary hope that, in the future, people will stop asking.

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The Great GOP Identity Search

In the wake of the great Republican defeat (and despite the distraction of the Petraeus Affair) pols and pundits continue to offer advice to the Republican Party as to how it might reform itself in order to…. well, do better next time around.   Yesterday’s New York Times contains a number of suggestions:  Ditch the radical right.  Court the black vote.   Embrace immigration reform.   Etc.

There’s something almost always missing in the way these suggestions are presented.  They are all written as if the plight of the GOP could be ameliorated through simple operations of subtraction (e.g., ditch the radical right) or addition (e.g., take up immigration reform).    Only rarely is consideration given to how the proposed subtraction or addition would affect the ostensible identity of the party or how the change could be effectuated given the ostensible identity of the party.

Consider:  If the GOP ditches the radical right, to what degree does the GOP remain the GOP or become instead something else?   Isn’t the radical right an important voting constituency?  A draw for donors?   Isn’t the ideology of the radical right infused throughout the GOP?   And can the radical right really be conceptualized as a divisible part of some imaginary GOP whole—a part that can be jettisoned without creating fissures and ripples throughout the party?   Is it really as easy as simple as dropping a part from some part/whole metaphor?

Or consider again:  If the GOP embraces immigration reform, does it not lose the support and allegiance of some of its white constituency?   And is embracing immigration reform really sufficient to counter-act the effect of  all the other GOP policies (and attitudes) that alienate Latino voters?   A simple add-on and things will be fine—really?

So how then are we to understand the various proposals of the GOP pols and pundits? What presumptions about identity are in play here?

Are we to understand the pols and pundits to be presuming that the GOP has an essential identity that can remain unchanged even with the addition or subtraction of purportedly discrete parts?   Maybe.  But if so, it would be interesting to try to figure out what this essential identity might be.   Not the least reason is that the effort is likely to fail.  Indeed, whatever the identity of the GOP  may be, it is unlikely to be of the essential kind.   To put it differently, whatever may be essential about the GOP,  it is likely to be somewhat abstract or, in the alternative, highly variegated (which is to say, not very essential at all).

Perhaps then, we are to understand these GOP pols and pundits to be saying that the GOP should become something else (presumably some more electorally successful version of itself).   Again, maybe.    But it is doubtful that the GOP (whatever it may be) cares so intensely about electoral success that it is willing to become some other party in order to get it.   At the very least there is a tension here (and, again, it would make for interesting inquiry.)

Are we then to understand the GOP pols and pundits to be making a kind of pragmatic pitch—something like the following: this is what we, the GOP, should be given what we are and can realistically become in light of our ideals as qualified by the subtraction and additions presented by my argument here.   Again maybe so.   But this pragmatic approach seems to founder on the shoals of a very unpragmatic reality–namely, that identity of the modern-day Republican Party is weighed down (perhaps irretrievably?) by the very unpragmatic results of what was once a pragmatic strategy–namely, “Nixon’s southern strategy.”   That strategy was once the height of pragmatism.  Now it’s like a lead weight–rendering change or reform all but impossible.   See here.   That is the fundamental irony of  pragmatic strategies: Ultimately, pragmatic strategies have to yield results and when the latter register, they become, not surprisingly, rather unpragmatic.

In the end, it’s also conceivable that all this advice to the Republican party is nothing more than cosmetic–attempts to call for and perform relatively minor makeovers.    That possibility is not very interesting (though that does not make it any the less likely.)

Addendum; January 29, 2013

In today’s New York Times, David Brooks’s oped seems to get it  Brooks criticizes Republican stalwarts (e.g. Bobbie Jindahl, etc.) along a form/substance track:  The sounds of reform (let’s not be “the stupid party”) are all packaging (form) devoid of any new proposals (substance).   Leveraging the form/substance distinction, Brooks then calls for a “second GOP”–one whose core commitments and issues will differ from the first GOP.  (For details see here.)  And then Brooks ends on almost the right note:  “This is really the only chance Republicans have. The question is: Who’s going to build a second G.O.P.?”  Right.   Exactly.   Recycle back up to the top.

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Sustainability and Equity in a Climate Changed World

A small group of environmental law professors gathered recently for a two-day workshop on the concept and practice of sustainability.  I was asked to lead a discussion about the relationship between sustainability and equity.  The group decided to take the next step of publishing a series of essays on the topics we addressed, and the following is my contribution. 

From top to bottom, climate change has altered the earth’s systems in ways that render impossible a static notion of sustainability.  The idea of fixed natural baselines, contested to begin with, today is nearly quixotic. The many losses accompanying this state of affairs include the homelands of small island nations, Native Alaskan villages, and flood-prone communities throughout the world.  They also include untold numbers of species, large and small. For many communities, the shocks and adjustments will be ongoing.  The challenge for all will be to reconfigure economies and cultures that have been structured around an anachronism– what used to be the local climate.

This may seem like a terrible time to cast a critical eye on the past of the American environmental movement.  Instead of looking at its flaws, we might be drawn to glossing over problems in order to unify support for very strong climate change mitigation and adaptation policies.  Yet glossing over might prove counterproductive.  The inescapably damaged state of the world we are trying to preserve provides an opportunity to escape from narratives that have divided communities over environmental policies.  Those narratives include saving the environment from people and preserving pristine places from contamination.

Let’s explore those narratives in two places.  Aspen, Colorado is a former mining town reborn as a luxury ski resort.  Efforts to preserve the wilderness and other natural resources of the surrounding mountains have coincided with pricing Aspen out of any reasonable housing market and creating a distant commuter class of service workers, composed mostly of Latino immigrants.  The two phenomena do not have to coincide.  The conversion from a boom-and-bust extractive industry economy to an amenity and service-based economy can be managed in ways that produce equitable distributions of environmental and social benefits.   But often it is not.  The path to easy money for developers is the path of environmental privilege.  Wealthy people come for real estate or experiences near beautiful and sparsely populated public lands, and then structure a service economy around the protection of their privileges.  (To be clear, I do not mean to say that individual wealthy people do this intentionally; the logic of this type of development is naturalized in a way that makes it invisible to many well-intentioned people.)  This often includes, as it has in Aspen, externalizing a range of costs and impacts to outlying communities.  Service workers must commute by car from distant places.  The towns where they live, which have lower tax bases than Aspen, provide the schools and other services to Aspen’s working class.  In short, Aspen is a place of environmental and class extremism, where the very wealthy enjoy the best that the Rocky Mountains can offer in terms of scenery and access to wilderness and other outdoor activities, and low-income workers live in distant communities, drive hours to and from their jobs, and barely have time to notice that the supposedly transformative experience of pristine nature surrounds them.

Estate in Aspen, Colorado

Black Mesa, Arizona is a high desert plateau, most of which is on the Navajo Nation but portions of which comprise the Hopi Tribe’s land.  The Navajo and Hopi people of Black Mesa are among the more traditional Native communities in the country in terms of maintaining their ancestral lands as well as the religions and cultures tied to those places.  The community is not a monolith, but it is fair to say that most of the Navajo and Hopi people who live there have strong interests in ensuring that their water (from underground pristine aquifers), their land, and their air can sustain many future generations who will perpetuate Navajo and Hopi life ways.  The threats to their ability to ensure that future come from two main sources:  the strip mining of coal on Black Mesa (and the accompanying pumping of ground water from the aquifers to mine and transport the coal), and the pollution from the several coal fired power plants that surround the Navajo Nation, including the Navajo Generating Station which receives all of its coal from Black Mesa.  None of the electricity generated at the Navajo Generating Station supplies power to people on the Navajo or Hopi reservations.  Instead, the power is used by the Salt River Project, Los Angeles Water & Power, Nevada Energy, Arizona Public Service Co., Tucson Electric Power, and the U.S. Bureau of Reclamation. The beneficiaries of coal mining, aquifer pumping, and emissions from the coal fired power plant are therefore corporations and people in the distant cities of Los Angeles, Las Vegas, Phoenix and Tuscon.  The recipients of all of the environmental burdens are the Navajo and Hopi people, whose land, resources, and water serve as raw material to develop these far away places.

Hard Rock Chapter, Black Mesa, Navajo Nation

Contemporary environmental laws, in place since the early 1970’s, have done tremendous good, but have done little to curb the extreme inequities in the distribution of environmental burdens and benefits exemplified in these two very different places.  In Aspen, the narrative of keeping people out of pristine places is at play.  On Black Mesa, the narrative at work is one that separates the plight of subordinated people from the structural forces that harm our environment.  The build-up of Los Angeles and Phoenix surely seemed foregone, inevitable, and right to those involved in it.  What thought was given to the Native communities on whose backs those cities were built?  Their lands were seen as nothing but the disposable raw material from which to build something better.

As we move forward, post climate change, with only a murky comprehension of how best to preserve remnants of the faultless non-human world, perhaps we can reconsider how to weave human communities and their just demands for equitable treatment into the picture.  Otherwise, we may lean towards sustaining only non-human nature, and that will inevitably also benefit only certain classes and strata of humanity.  We might unwittingly be sustaining a very hierarchical and increasingly rigid system of doling out environmental privileges and harms.  If this is a moment of reconsideration, my vote is to construct a competing narrative of environmentalism, one that has a vision of vibrant, equitable, just and diverse communities of humans and non-humans as its end.

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Book Review (and subtext)

The recent publication of  […….] by Professor X marks a moment in the history of […….].  It establishes him as one of the leading, if not the leading, authority on the subject of […….].

Professor X works at Zip Code Law School and I would like a job there too.

The work is lucid, path-breaking, and a real moment marking the advent of […….].

In the American legal academy, there is no praise too effusive or adulation too florid to be believed by its addressee.  I have learned this lesson well and I’ve got the game down.

The book is:


Occasionally insightful


Moderately competent


Off the wall


0.2 standard deviations from the norm

A tour de force

Rather improbable 

In a previous work, Professor X argued that […….].

Professor X has managed to squeeze out yet another publication rehearsing his same old themes. 

The book offers a number of interesting new twists on ideas first articulated by […….], […….], and […….]

I’ve read the thing from cover to cover and I’ll be damned if I understand why anyone is paying so much attention to the thing.  I mean there’s not a new idea within a 50-mile radius of the thing.

Professor X begins with an excellent discussion of […….] providing a rich context for […….].

Professor X devotes more than half the book to a rehash of the prior work of others.  Lord save us from the University Press editors, dissertation disease, and the well-intentioned, but grossly misguided, demands of academic reviewers for more elaboration, more examples, and more documentation.

And yet…if one follows the searing criticisms I painstakingly set forth below, one will see that the book emerges as fatally flawed, question-begging, misframed, insufficiently supported, etc.

Aren’t my criticisms just the bomb?  I mean really.

Nonetheless, despite my criticisms, the book remains a brilliant work.  Indeed, notwithstanding my searing criticisms, Professor X’s work emerges as a profound and lasting contribution to […….].

On balance, I really and truly would like a position at Zip Code Law School.  Also please know that in the future, sometime, I plan to dedicate myself full time to writing what I really think…  probably starting next year…  or at least very soon… though not too soon, of course… with the outside chance of maybe not at all… and, actually, come to think of it, like Professor X himself: never.  

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We Built It (Part II–Factors of Production)

“We built it.”  So runs the mantra of the GOP.   To which there is only one possible response: Well, actually no you didn’t.   And let me explain why since it’s not addressed in my last post on this subject.

First, let’s imagine who “you” are and why you might reasonably think you did build it.   So let’s imagine that you own a small business. You started small.  You worked hard.  You took risks.   You leased space.  You got loans.  You did all sorts of stuff.    Some of it was damned hard.   And now, you have… let’s say a successful 10-year old Italian restaurant.   And it pretty much feels like you really did build it.   And the best proof that you built it (as you see the matter) is that without you–this business would not exist.   Voila and Q.E.D.  You built it.


The easy way to put it goes like this:

First, let’s concede arguendo that certain things about the restaurant are attributable to your personal touch.  Say, the Abruzzo tomato sauce, the painting of Perugia on the wall, the… etc.  These things (now, of course, they’re not all yours) would not be there without you.  And the charm—the personal touches you bring to the business—also would not be there without you.  Or at least, the particular combination of personal touches you bring is unlikely to be reproducible by anyone else.  So let’s say this is yours (even though, of course, it really isn’t entirely, but….)

How then does your view of the matter go wrong?  It goes wrong because these “personal touches” are not synonymous or coterminous with “it”—the business you supposedly built.  In fact, and with all due respect, they are only a small part of “it”—the business you supposedly built.  The main contributions are the capital equipment, the physical plant, the labor force you employ, the infrastructures you depend upon, the infrastructures your suppliers depend upon and all sorts of other stuff, knowledge, capacities, competencies you did not build even if—and this is not nothing—you brought them all together.

What “you” (another term that will soon come under fire) need to recognize is that there are all sorts of things that have contributed to the building of this small business.  Among them:  A few millennia of human history bringing all sorts of knowledges, human management, capital equipment, and an available labor force up to speed; years of training in public school provided by taxpayers; all sorts of infrastructure enabling you to purchase foodstuffs, equipment, and to hire competent employees, etc. etc. etc.

These are all called factors of production.  And the thing that allows you to say that you “built it” is that you discount all those factors of production.  You take the roads, the schools, the laws, the employees, the culture as a given—as the background or normal state of affairs, as a baseline.   And so, taking these things as the baseline, you naturally think that if this small Italian restaurant exists, it is because you built it.

But this is wrong.  Way wrong.  “You,” relative to all these other factors of production, have actually added very (very) little.  We would have a hard time substituting a few millennia of history, an advanced post-industrial economic infrastructure, twentieth century schooling and knowledge.   Replacing you, however, would be very (very) easy.  In fact, it is a sure bet, that were it not for you, there would be somebody else (probably slightly less efficient, with slightly fewer comparative advantages) who could and in fact would take your place.  This person is, if we hew to Chicago School economics, marginally less efficient than you—but that’s about it.  So in terms of marginal productivity, you, relative to the other factors of production, are almost trivial—eminently replaceable.  Viewed in terms of marginal substitutability of a factor of production, you (again with all due respect) are pretty insignificant.  So if we were to ask in a realistic way, did you build it?—the answer would have to be that among all the factors of production contributing to the establishment of your small business, you come in (once again with all due respect) probably… very (very) far down the list.

Now, exactly where down the list is not entirely clear.  Among other things the answer would depend on how we carve up—what taxonomy we use—to describe our factors of production.   This brings in a certain degree of arbitrariness….

…and a kind of unnerving postmodern problem.   We are now going to turn from talking about “it” the thing that you supposedly built (but did not) to a more perplexing postmodern concern—namely, “you.”   “You” too is in trouble.

The fact of the matter is that—and this causes me a slight embarrassment—economically speaking, you (or in your case, “I”) is not really a category we can deal with very well.  You just don’t register very well or very deeply, economically speaking.  You are too abstract (we really don’t know who or what you are economically.)  And you are too concrete (you are too diversified internally for us to aggregate in a single economic category with any real content.)  In a phrase, you are, economically speaking, a thin category (more on that in a later post).  You’re not really labor or capital or any one such thing.   And though it is true you own a small business, it would be wrong to say that you are the small business itself (and besides small business is a legal not an economic category.)

All of this helps explain why—see the last post—you might feel somewhat anxious about it all.   There’s reason to be.  But in this regard, you are not alone.  Everybody feels more anxious.   Why?  Because the social bonds that you have so ardently disdained, rejected, and abused in the name of unbridled individualism (does this mean cheaper prices at Walmart?) have in large measure already largely melted away–so that the “you” that remains is, well, getting rather thin, somewhat indistinct, not quite in focus.    It’s no fun.   No fun at all.  Again, if only you could realize that you are not alone in all this….

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Ryan’s Scariest Lie

I know sub-three hour marathoners, I am friends with sub-three hour marathoners, and I have run a sub-three hour marathon.  Paul Ryan, you are no sub-three hour marathoner.

To many, Paul Ryan’s marathon lie is probably the most innocuous one he told in the last couple of weeks.  That one about the Janesville auto plant seems worse.  The one about Obama rejecting the bipartisan debt commission’s recommendations worse yet.  And so on.  So why is his lie about running a sub-3 marathon so creepy?

First, in case it is not clear.  It is a LIE, not a slip of the tongue or a misremembered fact.  To the interviewer who asked him what his personal record in the marathon was, Ryan answered:  “Under three, high twos. I had a two hour and fifty-something.” In three different ways, Ryan said that he ran 26.2 miles in under three hours!  When caught red-footed by Runner’s World, Ryan’s lame response was: “The race was more than 20 years ago, but my brother Tobin—who ran Boston last year—reminds me that he is the owner of the fastest marathon in the family and has never himself ran a sub-three. If I were to do any rounding, it would certainly be to four hours, not three. He gave me a good ribbing over this at dinner tonight.”  Instead, Ryan should have said, “I know.  That was a complete and bald-faced lie.  I apologize.  I guess I thought I could get away with it, like I do so many other things.  Have you noticed that my hair is very thick?”

Now that that’s settled, why is the lie so disturbing?  Because it was so utterly unnecessary.  Only runner geeks like me and my friends (and Elliot Spitzer, whose marathon p.r. is apparently faster than Ryan’s but slower than mine!) care about marathon times.  The country as a whole would not be terribly impressed with what is a big deal (and it really is, and Ryan knew it; see above about the LIE) in our small and semi-masochistic circles.  So why lie?  Why try to claim, simply by saying it, what others claim solely after mingling their given talent with intense training, and then pulling it all together on race day?  The casualness, the pettiness, the nonchalance of the lie is what smacks of pathology.  Why not lie?  That’s Ryan’s default position.  Lie, and then backtrack a bit and move on.  Have you noticed that his hair is very thick?

But it’s not funny.  If the guy gets in office, the lies will be even thicker.

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We Built It (Part I Losing It)

We built it.   It.  We.  Not you.  Not the government.  It belongs to us.  It is ours.  We work harder than you.  You cannot know how hard we work to build our small businesses.  (100 to 1500).  We work harder than our workers who we do not talk about.  Because they did not built it.   We built it.  Except to the extent that the workers are our fathers who were coal miners pursuing the American Dream who would one day be mentioned by their sons at a Republican Convention in Florida.  We are the sons who are the ones who built it.  We built it because we love freedom and we are the backbone and love freedom because freedom is free and it is the American dream.  Which we built.  Out of freedom.  Which is us.  And which you want to take away.  Even though it is not yours.  Because it is ours.  Because we built it.



Anyone?  Oh, shit.

A delegate from Texas waits for the start of the session during the second day of the Republican National Convention in Tampa, Florida August 28, 2012. REUTERS/Eric Thayer

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Lance Armstrong and Our Illusions

Lance Armstrong “gave up his fight against doping accusations.” This is how it is being reported, based on Armstrong’s bristly and defiant letter of concession. Presumably, Armstrong thinks that he maintains plausible deniability (and millions of dollars in sponsorships) this way. He can continue to say that he is being persecuted by the US Anti-Doping Agency, that they were on a “witch hunt,” that the ten witnesses who were prepared to testify against him were offered “sweet heart deals” for their own doping charges, that, in short, he is innocent and has been done wrong. Of course this is not really plausible. If Armstrong had a decent defense, he would have been able to secure at least a compromised result.  One rumor circulating earlier this summer within obscure insider-athletic circles, for example, was that Armstrong would be stripped of a few Tour de France victories in exchange for keeping the rest and maintaining some of his stature, and perhaps a wee bit of dignity. His failure to pull that off is some indication of the strength of the case against him.  Why would the US Anti-Doping Agency compromise at all if they could nail him for cheating during all seven tours?  Armstrong’s decision to stop fighting the charges deprives us of the evidence that would have been presented, but we know that the ten witnesses included George Hincapie, one of the most respected US cyclists and Armstrong’s long-time team mate, and that the accusations included use of EPO (a banned blood booster), blood transfusions, corticosteroids, and testosterone.  We also know that Armstrong had blood profiles in two years, 2009 and 2010, that were consistent with doping.

Still, why jump to the extraordinary conclusion, in the absence of a trial with all of the evidence vetted and assessed, that America’s best cyclist ever cheated throughout his entire career without once failing a drug test outright? First, as all the experts will attest, the testing is never as good as the cheating. A lot of cheating happens during training, in particular the use of banned steroids or hormones.  Even cheating that is integral to racing, such as blood doping or transfusions, can be very difficult to detect in a timely way. Second, and this is the hard part for many sports fans, it has been common knowledge for years within cycling circles that the only way to make it is to cheat. Talk to anyone who has spent any time in men’s professional cycling in the last two decades or so and they will tell you… “I faced a choice.  Start taking the meds or give it up.  Go see ‘the doctor’ or you are not going to make it.”  Furthermore, the rampant doping and drug use in cycling has been officially well known for at least the past several years, thanks to the various crack-downs by professional cycling agencies.

How can something be so very well known in some circles, and yet so hidden and unbelievable to the average American sports fan?  In part, it is because American sports fans love their illusions as much as they love their athletes.  We want more and faster records.  We want spectacular longevity and strength.  We want wins and world championships.  And yet, also consistent with some aspect of our national character, we want it all without wanting to know about the dirty things that make it possible.  We are sort of sweet and naive that way.  We are therefore shocked and bitterly disappointed when confronted with the fact that our athlete/heroes were human after all.  In Armstrong’s case, being human meant that in order to win in a sport filled with dopers, he would have to dope smarter and better.  For a long time he did, and doing so enabled him to train ferociously.  There is something to admire in that– being the most cunning and driven cheater.  Yet it is closer to admiring famous bank robbers than olympian athletes.

Professional cycling is in a state of transition, and may be heading back to the pre-illicit substance days.  If so, the best thing American sports fans could do would be to celebrate our athletes’ quiet victories and applaud their monstrous efforts as much as or more than their bling. (And here, a shout out to fourth place Olympian Taylor Phinney is in order.) If that fails to satisfy, the other alternative is to drop the illusions and hope for the next gangster who will cheat and claw his way to humanly impossible success.

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Italy and The Case Method

Last week I was in Italy for a couple lectures.    I love going to Europe for talks.  Among other things, it reminds me how cloistered and parochial we are in the American legal academy.  It shakes me out of my jurisprudential somnolence.  It reminds me that there are other ways of doing things.

This time it reminded me of a small idea–a small idea about a big problem confronting law teaching in America.  The big problem (in fact, it’s my candidate for the biggest problem) is the tacit jurisprudence of the classroom—one which is almost never questioned, never discussed, never criticized and thus swallows everything in its path.   This tacit jurisprudence is so successful that it never features as a jurisprudence at all, but registers quite simply as “law” itself.      This tacit jurisprudence of the classroom is the one that inculcates repeatedly, the idea that judicial opinions, statutes, regs and other such official texts are the repositories of law and that the task of the teacher is to help the students extricate the meaning of these artifacts.

This simple idea (and in part, it is an idea) effectively turns professors into facilitators.   Hence, our assigned roles as professors is to facilitate.  It is not to profess, it is not to teach what we think matters or is important about our subjects or any such thing.  No, our assigned role—what we are called forth to do—is to assist students in accessing “the law” that is found in these official texts–the judicial opinions, statutes, regs. etc.  Now, of course, one can have a more rather than a less sophisticated sense of just what can be found in/elicited from these artifacts.  And one can variously try to “supplement” them with this or that learning.  And this is not nothing.   But let’s not kid ourselves.  Always the facticity, the gravitas and the presumed authority of the official artifacts will pull the class back to the opinions, statutes, and regs as the true repositories of law.  And note here that my beef is not just with overwhelming importance we attach to these particular artifacts.  My beef is also that we tend to treat these artifacts as repositories of meaning.

Why do faculty accede so readily?   Umpteen reasons.   But the one I will give here is that no one—not the students, not the faculty—want to face up in any serious way to the obvious alternative.   We have two choices.  1) Either law can be found in/elicited from these official artifacts through the usual exegetical techniques or 2)…… ?   Yes, that’s right:  Option 2 is currently blank–not fully formed, perhaps not formed at all.  It would have to be created.  The texts would have to be written.  It would require a lot of hard work.  You would need a group of people.

Still, hope springs eternal.  And so I have to think that Option 2 might appeal to someone.   One could hope to find someone who would say: “Look at this law stuff.  How cool is this?–there’s virtually nothing here!   A lot noise for sure.  But very repetitive.  And the formalizations–so brittle.   It’s awesome.   We can really do something with this!”

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Gun Culture

Whatever the Second Amendment means, the problem for our society is that we have internalized the notion not only that we have the right to own guns, but we all should actually own one.  The NRA’s political and legal successes have led to a state of affairs in which even pacifist, urban nerds who rarely shed their loafers, let alone don hunting camo, feel compelled to buy firearms.  The legal right, though still subject to regulation, has become all but unimpeachable, and has generated a cultural norm.  What is the evidence for this?  First, notwithstanding the highly contested nature of the claim that gun ownership makes us safer, gun sales shot up in Colorado and throughout the country in the days following the killings in Aurora.  Second, and not quantitatively, I have recently learned that relatives and neighbors, who more or less fit the urban-nerd description above, own guns, even though they confess to being utterly unprepared to use them.

Dan Kahan has persuasively argued that cultural norms and identity drive perceptions about the gun control policy debate.  But the political tide in recent years seems to have eclipsed that useful insight.  The NRA’s lobbying might (backed by a seemingly endless stream of money from gun manufacturers and distributors) has made discussions about gun control toxic for republicans and a loser for democrats, so legislative reform is typically dead on arrival, particularly in election years.  (Sandy Levinson, among others, has pointed out the lame nature of Romney and Obama’s initial reactions to the Aurora shootings.)  In other words, the gun control policy debate is largely over, and one set of cultural norms (those that associate gun ownership with tradition, freedom, and liberty) not only prevailed over the policy, but now threaten to swamp the rest of the culture too.

With the legal right to own guns entrenched, and the policy forum all but captured by the NRA, might there now be room to fight back on the norm?  What if we started to make statements like the following:  “There may be a legal right to be free from certain kinds of gun regulation, and for some individuals and communities, gun use may be appropriate, but that does not mean that every man and woman should actually own a gun.”

It seems at least worth a try.  While empirical evidence supporting gun control laws may be equivocal, there is less evidence to support the proposition that universal gun ownership makes us safe.  The Aurora shooting provides some indication of why the evidence is lacking.  Those intent on mass murder rarely act in circumstances that allow their victims to respond with care and deliberation.  In Aurora, the shooter released smoke throughout an already dark theater before spraying the crowd with rapid-fire rounds from his semi-automatic.  In addition, many gun owners who did not grow up around guns learned to shoot only in the structured environment of a firing range.  They are not prepared, mentally or physically, to shoot to kill.  And that may be to the good, because the ultimate argument is not empirical.  It is about what our country would look and feel like if we decided to make it “safe” by arming every man and woman and expecting them to shoot their way to a secure civil society.   We would live in a world where we all stand armed, ready to kill one another in order to be safe.  That does not sound like freedom to me.

In the wake of Aurora, there have been some hopeful signs that the way we talk about guns may be shifting.  Perhaps the NRA’s near-hegemony on gun rights will, ironically, open space to talk about the wrongs of gun ownership, legal or not.  There are lots of voices that could join in this chorus, irrespective of their views about the law.  And there are plenty of analogies to draw from.  Legal prohibition of alcohol proved to be a flop, but the fact that every adult can buy booze does not translate into a norm that everyone should drink.  Cigarettes are not (yet?) per se illegal, but norms about smoking have come to an about-face from the Madmen days.  The list could go on.  The point is that the NRA succeeded in tying culture to gun rights in order to win political and legal battles.  It is time to decouple the legal right from the cultural norm, and put guns back in their limited place.

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