Quantitative Tie-Breakers (Theory Moves)

Quantitative Tie-Breakers: [kwon-ti-tey-tiv tahy brey-kers] Noun Phrase

The fundamental issue in the final stages of appellate adjudication almost always takes the form, “How can something that is inescapably two or more things at once be only just one thing.”   (Apologies to Thomas Reed Powell.)  There are several techniques that are deployed to resolve this issue.  One of them is the “quantitative tie breaker”.

The idea is that even if the “something” is undeniably two or more things at once it is nonetheless more one thing than the other and thus 1)  it is really one thing or 2) we ought to treat it as if it were really one thing.   Particularly in contemporary law, the key terms used to effectuate such reductive operations are often quantitative in character.


The “something” (whatever it may be) is….







…..one thing.

See also: “The Energy Aesthetic” in The Aesthetics of American Law

Quantitative tie breakers do their work by presenting the crucial issue as one of quantity, measurement, and calculation.   (i.e. an issue of more or less).  One of the interesting features of contemporary American (legal) culture is the apparent ease with which we accept the quantitative frame (and the quantitative tie-breakers) as natural and appropriate (even when a modicum of critical thought would, in many contexts, reveal their incoherence and inadequacy.)

By way of contrast to quantitative tie-breakers, note that a somewhat older, though still extant, jurisprudence would have resolved these issues (Transforming the two or more things at once into just one thing) through a different aesthetics.  Instead of quantity, measurement and calculation, we would be speaking in terms of “Essentialist Tie-Breakers”:

The “something” (whatever it may be) is….





At bottom….

…..one thing.

Caution: The quantitative, measurement, calculation images and metaphors of the quantitative tie-breakers are arguably sometimes apt (the various aspects of the “something” are clearly quantifiable in terms of hard data (e.g. dollar costs, number of parties affected, etc.) and sometimes quite inapt (as when we are trying to evaluate moral or causal responsibility).    Realize as well that quantitative tie-breakers (e.g. “predominantly”) are in some cases, a convenient way to sum up a sophisticated analysis, while in other cases, they serve as a relatively mindless assertion that eschews critical thought while also eclipsing its absence.

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Tracking for Law Students: Solution or Abdication?

Professors, journalists, and, most saliently, students have raised national awareness about the steep rise in college and post-graduate tuitions over the last thirty years.  As someone who has a hard time remembering statistics, for me the easiest math on the subject is the following.  When I started law school at UC Berkeley in 1988, tuition was roughly  $2,000 for in-state residents and $6,000 for out-of-state residents.  Adjusted for inflation, today those amounts would be approximately $4,000 for in-state and $11,000 for out-of-state.  In fact, in 2011-2012, Berkeley students paid over $50,000 for in-state tuition and $54,000 for out-of-state.  Those increases are among the most dramatic, but reflect the larger trend of public schools adopting private funding mechanisms, and private schools themselves raising tuition well above historic numbers.

What to do?  There are a lot of constructive suggestions out there, several of them made by Brian Tamanaha in his book Failing Law Schools:  Put a ceiling on federal student loans.  Reform the US News Ranking system.  Rein in the costs of legal education by restructuring salaries and other adjustments.  These seem well worth exploring.  In a recent New York Times Op-Ed piece, Tamanaha highlighted another of his proposals: reform the American Bar Association’s accreditation standards to encourage the rise of cheaper, more teaching-focused law schools:

One solution to this problem is to strip away the accreditation requirements that mandate expenditures to support faculty scholarship — for example, deleting the requirement that the bulk of professors be in tenure-track positions, removing limits on teaching loads, not requiring paid research leaves for professors, not requiring substantial library collections and so forth. This would allow some law schools to focus on training competent lawyers at a reasonable cost while others remained committed to academic research. Law students would then be able to choose the type of legal education they desired and could afford.

This one worries me, and not because it might deprive professors of fulfilling academic jobs, but because it would only deprive some of them of those jobs, creating the potential for a two-track system for professors and students.

It might be a good idea.  It might result in a truly democratic, cafeteria-style legal education menu, with eager young people of all races, classes, and ethnic backgrounds freely choosing the type and cost structure of legal education best suited to their talents, drives, and interests.  Or… it might result in a two-tiered system of legal education, one for elites (from whatever race or class background, but let’s face it, they would tend to be the children of elites), and one for everyone else.  One of the best things about attending Berkeley Law when I did was that everyone’s children were there.  One of my class-mates was the Chicana daughter of a Mexican immigrant who worked in a sweatshop.  Another was the African-American son of a family from Compton.  Yet another was the rabble-rousing activist daughter of a janitor from Concord.  And there were professors’ kids, lawyers’ kids, and doctors’ kids too.  We all chose Berkeley because it was a fantastic school and we could graduate with minimal debt.  Why shouldn’t everyone’s kids be interested in the very best legal education, regardless of where they came from? Choosing Berkeley also enabled us to pursue meaningful careers regardless of income.  We (and I am speaking from personal knowledge about my class-mates) became public defenders, legal services lawyers, union attorneys, and non-profit directors, in addition to academics, judges, and big and small firm lawyers.

My worry is that solving the serious problem of sky-rocketing tuition by creating a two-track system of education (whether for professional schools or undergraduate institutions) is to give up, finally and completely, on the dream of excellent, low-cost, public education for everyone.  Remember that?  Californians surely do, and the hope was that they would lead the country.  Several structural trends have all but killed the dream.  They include our collective refusal to tax ourselves for the good of all.  (Proposition 13; copycat state laws all over the country; the Reagan era; etc.); academia’s gradual surrender to the market (the two go hand-in-hand); and the public’s inability to organize and advocate for the fair delivery of public services.

I admire Professor Tamanaha’s attempts to propose constructive solutions to the threats to affordable legal education.  Reforming ABA standards may well be one of the proposals that makes sense, but doing so without simultaneously reinvesting in public education and remaining vigilant about, as Tamanaha describes it, “the complexion of the legal profession,” could well result in the very same elitist structure that Tamanaha worries about.  If so, the teachers and students would not be the only ones facing a stratified system.  People who need lawyers would be as well.

It’s not satisfying to keep pointing back to the big structural problems.  It’s even harder to do anything about them.  And in truth, it would take more than well-intentioned professors with good ideas.  It would take a groundswell of people, agitating, voting, and demanding more from politics and the state.  But tinkering with one part of the problem without tackling the wholesale abdication of democratic commitment to the common good might land us in a slightly altered version of the same place we are now.  Let’s aim for something better, and not all that distant:  California public schools circa 1960s-1980s, until the bottom dropped out.  What made that work so darned well, until it didn’t?

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Entry Framing (Theory Moves)

Entry Framing: [en-tree frey-ming] Noun Phrase

The initial establishment in a text of a perspective, an orientation, a frame from or against which the text proceeds.

Examples: An entry framing can establish a voice (“I am a spiteful man.  My liver is bad…”)   It can announce a purpose (“We the people… in order to….”)  It can announce a literary genre (“In the beginning, there was…”)  It can…

Antonym: schizophrenia

See also: myth of origin

Entry framing can do many (many) things.

We call it a “framing” in three senses of that term,  First, it frames (think: paintings) in the sense that it focuses our attention on a delimited subject and excludes everything else from the picture.  Second, it frames (think: building construction) in the sense that it establishes the scaffolding, the structure, on which the action will hang and the text will begin to take shape.   It announces and establishes initially, the scene, the action, the actors, the instrumentalities, and/or the purposes that will limit and enable what is to follow.  (See Kenneth Burke’s Dramatistic Pentad.)   Third, it frames (think: being framed for a crime) in the sense in the sense that it frames the reader–calls him or her forth to become a particular kind of reader:  to worry, to ponder, to skim, to….   It enlists the reader in a certain genre, promises a certain agon, announces the coming deployment of  certain kinds of resources–literary, intellectual, emotional, etc.

The framing at stake here an “entry” because it is the point at which an orientation perspective, frame is first announced, first established, first set forth.  Key to the entry aspect is that this initial “setting forth”  is asserted.  Declared.  Not argued for.  Hence, to take the examples above, Dostoyevky’s Underground Man affirms his spite without any prefatory note.   “We the people…” of the United States  do not explain who they are nor why they are entitled to speak as they do.    The entry frame performs (successfully or not) as an origin–even as it evokes, paradoxically, in the audience and the reader the recollection of its antecedents.

In some circumstances, the entry framing will elicit or call up the genre itself.   Hence, in constitutional law, Supreme Court justices typically announce early and bluntly, the well-rehearsed frames through which they will state and resolve the issues.      Among some of the major entry frames, we find, by way of example, the following:

Clause-bound interpretivism

Institutional Competence

Role of the court


Following /implementing precedent

Philosophical exegesis


(and a few more)

The various opinions in United States v. Lopez provide wonderful examples.

How do entry frames matter?

First, entry frames matter in that readers are often taken in without their knowledge.     That is to say, readers often do not immediately appreciate that they have been framed (or how they have been framed).  They are often unwittingly drawn into the world called forth by the frame.   This is not surprising—one does not typically approach a text warily–on guard against its opening moves.    (There is a practical point here: The most rhetorically adept authors use entry framing to smuggle in their root assumptions early before the reader is fully awakened.)

Second, while an entry frame is not fate—it can lead to the adoption of other frames (by way of slippage, breaking frame, referral, etc.)—there is something to the idea that the entry frame limits possibilities.  A given entry frame may lead to many places, but it may make some places harder to reach (rhetorically) than others and perhaps render some places unreachable altogether.   The point is aptly summed up in the lawyer’s aphorism: let me state the issue and I will win the case.  But the point is more profound than that:  A particular entry frame will establish what we will worry about, what we will seek to discover, what authorities we will recognize.  It will evoke the discursive and literary protocols through which praise and criticism can be offered.

Third, the entry frame—the advantage of being first—will be difficult to dispel.  It will remain in the background ready to impeach and impugn other frames as they are later affirmed in the text.  One particular telling example was Thomas C. Grey’s witty critique of John Rawls’ A Theory of Justice.  Said Thomas C. Grey:  If process approaches (i.e. the original position) are so great, then why does a theory of justice come out as a set of timeless principles?

Fourth, the entry frame positions and orients the text, the author, the reader for an unavoidably partial textual excursion—one in which the whole truth will be unavailable for the simple reason that the entry frame unavoidably fashions the truth to be found while excluding all others.  One ends up using the same categories–following the same paths (and perforce missing other options).

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Grading is…

It’s grading time.  Suddenly, doing anything other than reading exams takes on a new urgency.  A neglected research project must be attended to. The laundry really needs to be folded. Student recommendation letters must be drafted. Even reading a blog post or watching an instructional video about grading seems more appealing than grading itself:

OK.  It’s not really an instructional video.  It’s a hilarious sketch from a Canadian sit-com about an incompetent teacher. If you skipped it, go back and watch it now.  Or better yet, wait until you have graded at least half of your exams or papers and then watch it for comic relief.

Before saying anything further about grading, I want to be clear that real teachers and professors do not bring their papers and exams to bars and ask their friends to grade half of them!  Nor do we skip reading them altogether.  We actually read every single last word on every exam and paper. Which brings us to the question raised by the premise of this blog post, as well as the clip of Mr. D.  Why is grading so awful?  If you ask a random sample of professors, my unscientific guess is that over 90% will say that grading is the worst part of the job. Here is a brief survey of the reasons why, at least for this professor, grading is at best enervating and at worst utterly excruciating.

First, I am going to narrow the focus to exams only. I actually enjoy reading seminar papers. They are all different, and reflect a semester’s worth of interaction and progress.  While slapping a grade on them has the same unsatisfying aspects (described below) of doing so on exams, at least there is a sense that the end product– the original research paper–will have a life beyond the professor’s red pen.

This is not so for exams (or final take-home papers, which are really the same thing.) So here is an incomplete List of Reasons Why Grading Exams is Awful.

*Grading is boring. All the answers say the same thing! Of course they are supposed to.  In fact, it is a sign of a successful class if the majority of the answers say very close to the same thing.  So successful teaching results in monotony.  It is horrible to face this.

*Grading is sorting. If the students are very talented and studious (which most law students are) and the class has been as well taught as possible, then the optimal situation will be that the exams answers are at or above the threshold for having mastered the subject matter taught. That, at least, is my goal for every class I teach: for all of my students to reach a certain level of mastery with the subject matter.  But when we grade, we are not just checking for mastery. We are sorting the students from top to bottom of the class. Our audience for this sorting is very narrow. Many law students will get great jobs and have satisfying careers by gravitating toward aspects of the profession that suit their talents and personalities. A much smaller number will get jobs at elite law firms based in no small part on their grades.  Likewise, a very small number will get federal judicial clerkships based largely on their grades and class standing. So when I am sorting a large class of students from top to bottom, as opposed to evaluating whether they have mastered the material irrespective of where they fall relative to other students, my hidden bosses (elite firms and federal judges) are the ones cracking the whip. I am sorting for them. This forces me to acknowledge something I have spent all semester (and maybe a lifetime) avoiding: that despite my public interest and academic career path, I ended up working for the man.

*Grading is Not-Teaching. Most professors that I know truly love teaching.  Teaching is interacting with students, sparking curiosity and thought and, of course, conveying information and skills. By the time grading happens, the teaching is over. Students in large classes rarely learn anything in the aftermath of the exam. They may, if the exam is well crafted, learn something during the three hours they are sitting for it. But students will not learn much from receipt of the grade.  The small number of students who stop by to see their exam are doing so, understandably, for purely instrumental reasons. They want to know why they received the grade they did, and sometimes how they might improve their performance the next time. But they never want to sit with you for an hour or two and discuss how they might think differently about their response to question II.A., and plumb the depths of the subject matter for all that II.A. demanded and implied. So grading is a terrible anti-climax to teaching. Instead of joining with your students in the learning process, you are alone in your office or at home, reading the dry aftermath of what seemed (and was) so engaging at the time.

*Grading is arbitrary.  To be clear, grading is not arbitrary for the top and the bottom of any class. But for many of us, a defensible distinction between most of the grades in the middle of any group of exams is elusive. We try. We really do. And once, I had the happy occasion of having my own grading consistency confirmed by accident. Two copies of the same exam had been printed, which I did not realize. When I finished the second version of the same exam, I went back to check the previous papers because the wording struck me as very familiar.  Sure enough, a previous paper had the same exam number.  The numerical grades I had given the two were identical. This might have absolved all of my guilt about the imprecision of grading for ever more. But I know better; that was a lucky break.  To be sure, the arbitrariness of the grades in the middle can be mitigated by institutional measures, such as eliminating a published top-to-bottom class rank, and moving from numerical grades to letter grades. My law school has done both, and these changes have lessened considerably the anguish of grading. So maybe it is a hangover from the previous era, but even with these helpful adjustments, I can’t shake the sense of indefensibility for the distinctions I make.  This wouldn’t matter so much if grading were leading to more teaching (see Grading is Not-Teaching above), or if grading had nothing to do with sorting (see Grading is Sorting above.)

*Grading is lonely. That’s why Mr. D. took his exams to a bar. That’s why some of us sit with stacks of papers in coffee shops. Writing can also be lonely. But at least we are alone with our own thoughts, and not the thoughts catalogued above about the solitary and unsatisfying end-product of a semester’s worth of work.

*Grading is goodbye. Because most teachers love teaching, there is something sad about our last communique to our students consisting of a mark on a transcript.  Grading is farewell, and an unsatisfying one at that.

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The Monty Python Example No. 3 (Analytical Philosophy in Law)

Too much of it arguably reads like this:

In The Concept of Law, H.L.A. Hart once said something.  This brilliant insight (BI) effectively corrected some fundamentally wrongheaded ways of thinking.   Yet upon closer examination, BI encompasses a number of different ideas which can be set forth and examined–each in its own right.

In order to introduce some conceptual clarity, let us begin by defining our terms.  BI can be helpfully subdivided into five distinct possibilities: p, not p, p unless not p, not p unless p, and, of course, the incoherent p and not p which we encounter in less thoroughgoing philosophical work including France.   Other less rigorous possibilities would include occasionally p, randomly p, indeterminately p, and the like.   These and other such possibilities are in their nature insufficiently precise to warrant treatment here.

Putting aside the imprecise and incoherent possibilities as non-starters, we are left with four possibilities.   It is important not to conflate these upon pain of serious error.  The essential point here is that if we can avoid such conflation, the four-part theory advanced here (TAH) will remain intact and available to guide analysis.

Sophisticated readers will, of course, recognize that the application of TAH depends upon the addition of specified empirical conceptual content (SECC).   In turn, where law is concerned, the availability of SECC depends, at least in part, upon further more rigorous work in the social sciences.  Indeed, the currently available work in the social sciences is  largely unsuitable for TAH.

It would be highly unfortunate if TAH and SECC remained incompatible.  It is to be hoped that, in the future, this discordance can be avoided as the social sciences progress and produce better more thoroughgoing SECC.   In the meantime, TAH may help to dispel some of the theoretically muddled thinking so frequently encountered in contemporary legal analysis.

For  further elaboration:

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Wild-ish: Self and Community on the Trail

A lot of wilderness narratives go like this.  A man walks alone into the woods/desert/mountains.  He confronts nature in all its glory and terror.  He barely escapes grave danger and returns to tell the tale or/He does not escape grave danger, but nonetheless overcomes blood loss and near starvation and returns to tell the tale or/He disappears without a trace and someone else tells his tale. See, e.g.Into the Wild; Everett Ruess: A Vagabond for Beauty; 127 Hours: Between a Rock and Hard Place; and untold numbers of mountaineering and climbing memoirs and biographies.

Cheryl Strayed’s wilderness narrative, Wild: From Lost to Found on the Pacific Crest Trail, has some of the classic elements of the genre. Strayed (a name the author adopted after her mother died and her life fell to pieces) sets off alone to have close encounters with nature.  She barely escapes being impaled by a free range bull, almost steps on several rattle snakes, and faces extremes of temperature and terrain.  Also, consistent with a sub-category of the wilderness narrative, many of Strayed’s hardships are caused by her own lack of experience and preparation.  She sets out in new boots that are a size too small.  Her pack weighs twenty pounds more than it should because she has included an amusing array of extras, ranging from a folding saw to a large pack of condoms.  Finally, Strayed’s memoir resonates with aspects of the literature that have a self-discovery/self-help thread.  She hit bottom (profligate drugs, serial infidelity to her husband, and other self-destructive behavior in the wake of her mother’s death and the disintegration of her family), and got lost in the woods to find herself.

Yet unlike the classic versions described above, Strayed’s account is filled with social encounters. Interspersed with stretches of hiking alone, Strayed meets and camps with others on the trail, and takes several detours to avoid heavy snow pack and collect food and supplies. Sometimes she ditches the trek just to give her mangled feet a break.  Because her descriptions of the off-trail food are so vivid, at times it seemed like Strayed was eating fries and drinking Snapple lemonade as often as she was choking down trail mix.  Also, while Strayed wrote the requisite paens to the starry night sky, the jagged and snow-capped peaks, the riot of wild flowers, etc., etc., a great deal of her prose is devoted to feelings about other people.  She is trying to figure out how to live in society, not how to escape from it.

Another striking divergence from the classic wilderness narrative is Strayed’s inclusion of the desecrated parts of her journey.

She hikes through clear-cuts as well as mossy old growth.  This is our world, after all, even the one we escape to.  It bears our marks, our uses, our legacies, including those of our own emotional lives.  Finally, Strayed’s most chilling encounter is not with falling rocks, hungry grizzlies, or cascades of ice and snow, but with a creepy guy. Strayed’s biggest triumphs are those of reckoning with human loss, and the most significant threat to her security comes in human form as well.

One form of wilderness memoir isn’t more important or better than another.  The myth of utter solitude and self-reliance is compelling.  We like to read about it and even live it, from time to time.  But as our country, and its natures, seem to be flying apart under hyper-individualism’s irresistible force, a wilderness narrative that brings our human connections and impacts to the fore is a timely addition to the literature.

(For anyone interested in a more academic discussion of these ideas, see Mountains Without Handrails, Wilderness Without Cellphones, an earlier and much longer riff on the same themes.)

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I have been waiting.  In an airport.   For my flight.  Before that I was waiting in line.  For security.  For passport control.  For baggage drop-off.    I have been waiting all morning.  In line.  My passport and my boarding pass have been checked four times.  I believe they will be checked again.  I no longer bother to put them away.

All this waiting in line must do something to us.  We find our place in line and hold it.  We are so docile.  So accepting.  So resigned.  An achievement of civilization.   If so, the British are way ahead.  In the train stations, they queue up one by one, waiting for the trains to arrive:

So, yes an achievement of civilization–and yet maybe not:







What does it do to us, this waiting?  Stuck in traffic in L.A. listening to KFWB news for the sig alerts?   Waiting at the doctor’s office?   Well, it shortens life expectancy for one thing.  You can’t call waiting much of a life.   Many times I’ve resolved to do something else while waiting—exercises (my left Achilles needs it) deep breathing, outlines for the next post or the next article.   But too often I forget.

Earlier this morning, I made a point of striking up conversations—I was aiming for something beyond the usual small talk.   I was willing to talk about anything.  I even got into a discussion about the famous “hail-mary pass” by Colorado in that great 1994 Michigan game (and I don’t even follow football.)

But now, I’m thinking about waiting.  A subjective attitude really.  An attitude which says something like, “This is not really my life.  My life is on hold.  I am currently a placeholder for my life.  My actual life will start up again in 30 minutes when I’m through with this line, when I get my tickets… my whatever.”  Except not quite:  The serial nature of the waiting (one line follows another) reminds us it’s not true.

What if there were a neurological condition which caused some people to look at life this way all the time?  I mean that they would see each experience as a wait to be followed by another wait.  The waits could be sectioned off.  Invariably it would be waiting for something to end or something else to begin.   Nothing else.  Very much like simula life, actually.   Such people would be placeholders all the time.  “This is not really my life you know—I’m just a placeholder.”

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Too Much Information, Not Enough Knowledge

If you wanted to disappear, where would you go? A small town in southern Utah is a good bet, at least according to its reclusive inhabitants. Yet they know that their days of being off of the information grid are numbered, if not gone already. Indeed, I am posting this courtesy of the town’s wireless internet service.

Still, this corner of the Colorado Plateau thrives on myths of vanishing. From the ancient Puebloans to young Anglo explorers like Everett Ruess, the parched landscape invites tales of unsolved mysteries.  Some are just tales. The theory that the ancient Puebloans vanished without trace or explanation by the end of the thirteenth century has been supplanted by knowledge, much of it from contemporary Hopi and Pueblo people, that the Anasazi (as they are still often mislabeled) migrated due to drought, resource scarcity, and accompanying social and political instability.  They were then absorbed into the Hopi and Pueblo tribes that continue to live in the region today. Some vanishings persist, however.  Everett Ruess, the young Californian who roamed throughout the Navajo Nation and southeastern Utah in the 1920’s and 30’s, disappeared in 1934.  Despite occasional false positives, his body has never been recovered.  Did he fall of a cliff in Davis Gulch, which is now flooded by Glen Canyon? Was he killed by whites or Natives? We may never know, and maybe we don’t want to.

The region’s secrets also used to include the location of the thousands of archeological sites hidden in its cliffs, crags, and washes.  But today, thanks to blogging, published guides, and hand-held gps technology, anyone can plug in a few coordinates and bag as many cliff-dwellings and petroglyphs as possible. The Bureau of Land Management (BLM) is aware of the problem. Their solution, at least in one resource-rich area, has been to post signs at trailheads warning people not to violate the laws. As one long-time local put it, they might as well have constructed a big neon billboard saying “Cool Ruins and Potsherds– This Way!”  The Plateau’s vast archeological riches are also at risk due to the BLM’s inability to resist interpreting its multiple use mandate as “all uses in all places at all times.”  With increasing pressure to drill for oil and gas in every conceivable location, and at the same time to procure recreation fees for the handful of places off-limits to drilling, the likelihood that the land and its secrets will be left alone is extremely low.

Despite all of the information available, knowledge about the Plateau’s history is ephemeral.  In this little town, for example, there is a struggle between the inhabitants and the LDS Church about who has the higher claim to presenting local history. To protect the town’s identity (at least temporarily, until the reader opens a new tab and does a google search,) I will leave the details to the reader’s imagination. Suffice it to say that the locals believe that they are on the side of historical accuracy as opposed to commemoration. As commemoration ascends, facts and details seem to recede. At the same time, the risks to the region’s archeological resources put the bases for assessing the facts in jeopardy.  Can it be that the more information we have access to, the more we put knowledge at risk?  As it gets harder to sustain the mysteries of a region, does it also become more difficult to discern its truths? It doesn’t have to be this way. There is nothing inevitable about technology revealing too much and yet saying nothing. But there is nothing foregone about this not being so either.

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The American Law School (Tentative Notes for Stages of Evolution)


Stage 1: Socratic

Stage 2: Soft Socratic

                      Stage 3: Lecture/Student-oriented Learning

Stage 4: Consumer Preference

Advancement Societies:

Stage 1: Old Boys Club/Old School Tie

Stage 2: Political/Intellectual Interest groupings

Stage 3: Connections

Stage 4: Networking

Scholarship Evaluation (Personnel Actions)

Stage 1: The Tenure Article

Stage 2: Multiple Articles

Stage 3: Citation rates/Download Rates/Faculty ranking

Stage 4: Brand Recognition

Media Outreach by Faculty

Stage 1: State Bar Publication

Stage 2: CLE talk

Stage 3: Talking Head/Radio Interviews

Stage 4: Internet/Blog Presence

Law School Publicity

Stage 1: Admissions Brochure

Stage 2:  Quarterly Glossy Alumni Report

Stage 3: Multiple Targeted Glossies

Stage 4: State of the Art Web Site/Press Agents/PR Specialists

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Could the Gender Gap Save Affirmative Action?

Abigail Fisher sued the University of Texas, Austin, arguing that UT’s admissions policies violate the Equal Protection Clause of the XIVth Amendment. Abigail Fisher is white. UT automatically accepts Texas residents who graduate in the top 10% of their high school class, irrespective of race or ethnicity. After that, UT admits students relying on multiple factors, including race and ethnicity, to fill out the class. Fisher was not in the top 10%, so had to compete with everyone else (athletes, alumni kids, African Americans, Latinos, disabled students, etc.) to get a spot. She did not succeed, and matriculated at an institution in another state, from which she is about to graduate.   Fisher lost her case in the lower courts, and the Supreme Court has decided to review it next fall.

Fisher is arguing that UT’s policies exceed the narrow use of race and ethnicity to achieve a diverse educational environment that the Supreme Court approved in Grutter v. Bollinger. Fisher is also arguing that Grutter should be overturned.  Justice O’Connor, now retired, authored the 5-4 decision in Grutter.  She has been replaced by Justice Alito.    Three of the four dissenters (Kennedy, Scalia and Thomas) remain on the Court. One, Justice Rehnquist, has been replaced by Chief Justice Roberts. It is not hard to imagine five Justices voting to ban all use of race and ethnicity for all purposes in the admissions process.

What might persuade one or more of the five to pull up short from ending all forms affirmative action in higher education? In Grutter, the military and several business organizations submitted influential briefs supporting the benign use of race consciousness to build more diverse, responsive, and better work forces. Maybe what worked before will work again? I am not betting on it. Another possibility is that educational administrators will paint a vivid picture of the context-based nature of the admissions process, which (1) relies on race and ethnicity only as plus factors in a holistic evaluation of the candidate, and (2) does not place any greater weight on those plus factors than it does on others (e.g, class, alumni status, athleticism, etc.), and (3) evaluates how the applicant’s race and ethnicity has shaped her experience in such a way as to augment the educational environment. If educational institutions can get these points across clearly, then they can make the subsequent one, which is that banning all reference to race and ethnicity will essentially impose a form of censorship on admissions offices that applies only with respect to this one characteristic.  Admissions committees will be able to talk about everything except race and ethnicity that might have shaped an applicant’s experience, from the trivial (how the applicant was traumatized when she lost the fourth grade spelling bee) to the profound (how the applicant graduated from high-school despite taking care of her three younger siblings and working 20 hours/week.)  Sounds convincing to me.  But for the target audience, the odds seem even worse on this one.

photo courtesy of Getty Images

What about this? Within the last five or so years, girls have been surpassing boys in educational achievement.  The new pro-girl gender gap has caused some colleges to admit lower-achieving boys in the interest of “balancing” the class. If the Court bans all forms of affirmative action in University admissions, will their sons, grandsons, and nephews face the consequences? One way to keep affirmative action for boys, while still killing it for members of racial and ethnic minorities, would be to rely on the intermediate standard of review that applies to classifications based on gender. But is it possible that at least one Justice (ok, Kennedy), might have a twinge of conscious about this?  Can it really be alright to allow “balancing” for boys, who have not suffered systematic forms of exclusion, discrimination, or implicit bias, but to disallow a similar flexible admissions approach for racial and ethnic minorities? For some, the answer will be “oh, sure it is!” But maybe, just maybe, one fellow in DC will wonder… is this distinction defensible, can I stomach it?


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The Law Review Rejection

Yesterday, I received an email from a top fifteen law review:

Dear Professor Schlag,

We have carefully considered your article, [Title]  Unfortunately, we cannot accept it for publication in the [Name] Law Review. We expect this year to receive well over three thousand submissions for consideration, and yet we are able to publish only a very small number.  As a result, we find we must reject many excellent articles.

Thank you very much for your submission. We hope that you will give us the opportunity to consider your work in the future.

The Editors

Some people might read this and think: rejection.   But I am a careful reader.  And in this regard,  I couldn’t help but note, for instance, that not only had my article been considered, but in fact, “carefully considered.”  What’s more, the Name Law Review clearly wanted the “opportunity” (their word, not mine) to consider my work “in the future.”  This could only mean one thing: Next year was wide open!

So yes,  it was a rejection, but not without its high points.  I pondered the thing until a pernicious thought surfaced:  I sent them my article on Monday and I got the rejection on Wednesday.  48 hours–that did not seem like much time for “careful consideration”—particularly given the fact that The Name Law Review got well over 3,000 articles a year.

Still, this was nothing like that rejection letter I got fifteen years ago from that other law review—the one that rejected an article even though I hadn’t submitted any.   Pre-emptive rejection–as in:

Dear Professor Schlag:

If you were thinking of submitting anything to us, please don’t.  Thank you.

Sincerely yours,

The Editors

No this was not that.  Nor was it like the rejection Professor Bainbridge describes here. No, the undeniable fact is that The Name Law Review had “carefully considered” my article even if it had been only 48 hours.  As for the obvious tension I uncovered–well that simply called for interpretation.

I immediately turned to constitutional theory.

I began with an imaginative reconstruction of the law review office.  I pictured flat screens, tables, editors.   I saw my article come in, suddenly lighting up the screen.  I sensed possibilities.    Specifically, I sensed the possibility that the title of my piece intrigued the first reader.    A few paragraphs later (“In Part IV, I will…”) and my article jumped to the head of the electronic pile.  Then, very likely a second reader took over.  Excitement grew.

And yet something bad must have happened to those editors.  Doubt must have insinuated itself unbidden into their minds.    Something must have gone awry.  The article had lapsed into the obvious, the déjà vu, or the untenable.  From there, the denouement would have been  predictable.  Of course, there would have been a gnashing of teeth and anxious pleas.  Discord on the Board.   Perhaps even recriminations.   But in the end a decision was made.  Someone (they would have drawn straws) hit the send button.  Rejection.   The editors would have ambled out into the cloying humid night—desolate and forelorn–existentially tapped out.  Some would have drifted to the local bar for drinks. Others would have hit the casebooks.  The more emotionally susceptible would have been angry: “How could he submit this to us?   Why this?  Doesn’t he know what he’s putting us through?”

Realizing all this I immediately pounded out an email:

Dear Editors

I received your email earlier today.   While I had permitted myself to hope for better news, do not concern yourself for my condition. Please know that I greatly appreciate the alacrity with which you read my article.  Know as well that I will definitely send you my work in the near future.  Yes, do not be concerned on that score.  And please do not feel bad about this rejection.  I do not.  I feel honored .

Sincerely yours,

Pierre Schlag

I got a bounce-back.

I made a note to call them later that evening.

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Santorum on Religion

On Sunday, Santorum gave what the NYtimes called a full-throated defense of religion in politics.   In particular, Santorum said that John F. Kennedy’s speech on separation of church of state made him want to “throw up.”  I quote:

“To say that people of faith have no role in the public square?” Mr. Santorum said on Sunday. “You bet that makes you throw up. What kind of country do we live in that says only people of nonfaith can come into the public square and make their case?That makes me throw up.

This, of course, is argument by misrepresentation.  First, we are not talking about the public square, but rather politics—the latter being a somewhat smaller subset of the former.   Second, no serious American politician has ever said that people of faith have no role in politics.  What some have said–and this is something altogether different—is that religion has no place in politics.

But those who have said that or something like that (Kennedy again—more on that later) are certainly not today’s politicians.  No.  If there is one thing no serious national politician dare say in today’s political climate, it is that religion has no place in politics.   Meanwhile what can be said—and Santorum has not only said it, but exemplified it many times over—is that religion does have a role to play in national politics.

So Santorum has things exactly reversed.

In fairness to Santorum what is true is that if someone, like Santorum himself, brings religion into politics—say, papal views on contraception—some people (a lot of people) will not listen to him.  Indeed, they will immediately turn away and not think twice about what he is saying.  But, of course, that is true, not just of Santorum, but of anyone who brings to the political table fundamental assumptions that the audience takes to be outlandish, non-starters, beyond the pale, etc.

If Santorum wishes to bring god or the pope to the political table—he can have at it.   And no one will (no one has) prevented him from doing so.  But that hardly means that he is somehow entitled to have people treat his arguments (are they arguments at all?) seriously.  In this regard Santorum (and those who wish to bring religion to politics) are in no way disadvantaged relative to everybody else.

What Santorum is demanding is that people listen to his religious views.  He can demand that too.  In fact, he’s doing it.   And no one is preventing him from doing that.

It’s just that he’s really unlikely to be as successful as he wishes he would be.

Now, what about those who think that religion has no place in politics?   Well, that too is a position—and it is a position which, on peril of being lost, needs to be argued for.   I will not do that here.  (Though, I will point out that Santorum is helping a lot with the case.)  Instead, as promised, I want to return to Kennedy’s speech—the one that makes Santorum want to “throw up.”

What then about Kennedy’s speech?  There, Santorum’s argument is one by misdirection.  When Kennedy argued for a separation between church and state and said he wouldn’t bring religion into politics, it was not because he was trying to gain the sizable constituencies of atheists, agnostics, and people of non-religion.  He argued for separation of church and state because he wanted to reassure voters that he, as a Catholic, would not be running the country in accordance with the wishes of a foreign power—namely, Rome.  (For more, see here.)  From Kennedy’s speech:

But because I am a Catholic, and no Catholic has ever been elected President, the real issues in this campaign have been obscured–perhaps deliberately, in some quarters less responsible than this. So it is apparently necessary for me to state once again–not what kind of church I believe in, for that should be important only to me–but what kind of America I believe in.

I believe in an America where the separation of church and state is absolute–where no Catholic prelate would tell the President (should he be Catholic) how to act, and no Protestant minister would tell his parishioners for whom to vote–where no church or church school is granted any public funds or political preference–and where no man is denied public office merely because his religion differs from the President who might appoint him or the people who might elect him.

On this score Santorum need offer no reassurances.  He has made it perfectly clear where he stands.  As for “throwing up” (political erudition is apparently not what it used to be) that seems a bit physiologically extreme.

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If Satan is Coming, Should I Bother to Recycle?

Rick Santorum, in a speech at Ave Maria University in 2008, asserted that Satan had set his sites on America.  Santorum recently deflected questions about the speech by saying it was not relevant to his campaign.  But hold on.  If Satan is coming, and has been on the road for four years already, it seems possible, even without knowing Satan’s exact route on Google Maps, that he will arrive sometime during the next presidential term.  Shouldn’t Santorum have some thoughts about this?

I hate evil as much as the next guy or gal, though perhaps not as much as Santorum and the Church lady.

But If the devil is on the way, that’s the beginning of the inquiry, not the end of it. Who and what is he coming for? Santorum and his political opposites—progressive people of all religious faiths (and some lacking faith) who think the core values of this country are tolerance, fairness, inclusiveness, and equality of opportunity—do agree on something: America has gotten off course.  Yet here is the interesting twist.  Santorum wants extreme and permissive, do-your-own-thing liberty, infused with his fundamentalist catholicism.  Four years ago Santorum was predicting the arrival of Satan.  Today he contends that the solution to our country’s educational problems is to eliminate federal support, and for each individual child to have an educational program fashioned just for her. Santorum, “likened his view to the way private businesses respond to customer needs and mentioned his visit to the BMW plant in South Carolina. ‘Why not have an education system that is custom-made for every child that is educated in America?’” In other words, why have kids go to school at all, where they might learn to appreciate and tolerate other peoples’ perspectives?  Instead, let’s fashion individualized educational programs, and heck, why stop there, individualized life programs for every single one of us.

Santorum’s nirvana appears to be a Haight Ashbury circa 1968/Opus Dei mash-up: Everyone on their own and for themselves, with nothing tying them together but fundamentalist dogmatism. Progressive people, on the other hand, want a return to shared norms of responsibility for one another, investment in institutions that will further those norms (primary and secondary schools, public transportation, higher education, to name a few), and some sense that we are more than just a collection of persons whose needs are so exquisitely individualized that only a “custom-made” life will do. Progressives urge tolerance for what does not concern us collectively (e.g., choices about who to love, who to marry, whether to have children and how many,) and support for what we can only achieve collectively (e.g., access to justice, public education, public infrastructure, a clean and healthy environment.) Santorum sees Satan in what we do with our partners, our bodies, our private lives.  Progressives see the devil, though they may not call it that, in what we fail to do together, in and for our public lives.

So if Satan is en route, what to do? Denounce people whose religious beliefs and choices about who to love are not like yours? Buy personally customized BMW’s? Arrange for public policy to replicate the workings of a BMW plant? It is all so confusing. For progressive people, it is confusing too. If the devil is the unraveling of the social contract, how do we sew it back together? This leads to a discussion of causes, which are much mightier than  Rick Santorum, and beyond the scope of this post.  A brief synopsis: the concentration of wealth, power, and influence, facilitated by law, that has corrupted politics and savaged democracy. Isn’t that special?

Posted in Politics | Tagged , , | 4 Comments

Santorum Rising

No, not that Santorum. Come on people. Senator Rick Santorum, who is taking his turn as the Not-Romney republican candidate du jour. If Santorum wins in Michigan, he may be more than just the Not-Romney of today; he could be the Not-Romney who gets to run against President Obama. Many Obama supporters are nearly gleeful at this prospect.  Santorum, the wisdom goes, is too extreme for this country. He could never win the general election. But what if he could? What if oil prices rise throughout the summer, as they usually do, and the economy stalls again, as it might due to events entirely outside of our country’s control?  (Hello Greece!) Then can we imagine Not-Obama sweeping the midwest, in addition to the nearly locked-in south?  That is a not-insane scenario, at least according to Nate Silver.

Much could be said about why people, regardless of political persuasion, should think very seriously before deciding that Santorum as Not-Romney would be a good thing. The focus here is solely on what it would mean for our country’s commitment to clean air, water, and land. In short, it would be a near end to that commitment. (Though, as Dan Farber points out, Ron Paul as Not-Romney would mean a certain end. But the moment of Paul’s Rising was both short and low, and now seems about over.) Santorum thinks anyone with even the most moderate inclination toward regulating pollution, including our very moderate President, is a “radical environmentalist.”  Santorum does not think we have any obligations to the earth and its inhabitants, but rather only an obligation to “husband” the earth’s resources. It is not clear what the distinction is between “husbanding” them and “stewarding” them, but one could guess that the husband approach more closely resembles the pre-1970’s free-for-all, which resulted in ordinary folks paying extraordinary health and safety costs for our failure to regulate the many pollutants that are inevitable by-products of industrialization. Santorum not only denies that climate change is happening and is caused by humans (a nostrum shared by all of the republican candidates except Gingrich), but explains his denial in very child-like terms:   “I believe the earth gets warmer, and I also believe the earth gets cooler, and I think history points out that it does that.” It is not enough, apparently, to ignore the wide consensus among thousands of scientists. It is better to have no clue about the debate whatsoever, and to phrase it all as boiling down to one’s own personal “beliefs” about what is happening to the climate. (This is for a separate post, but as some journalists have pointed out, this is a strange way of talking about a physical phenomenon, even one that we only know about through abstractions. Do people discuss whether they “believe” in gravity? In nuclear fission? The only other scientific issue that is discussed in these terms is evolution.)

We could go on. The point is, whatever else Santorum means, it also means an abandonment of our responsibilities to the land, air and water that must sustain us and the generations that follow. What Romney thinks about these issues is purposefully obscure. But at least on the environment, Romney himself may be a more appealing Not-Romney than Santorum.

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Individuation (Theory Moves)

in·di·vid·u·a·tion  noun \-ˌvi-jə-ˈwā-shən\

The determination of the proper or relevant individual unit for purposes of interpretation, analysis, calculation, etc.  Individuation portends both integration into a stable identity and differentiation of that identity from its environment.

Antonym: fusion, dedifferentiation

Example: A text is individuated into paragraphs.  Paragraphs are individuated into sentences.  Sentences are individuated into phrases.  Phrases are individuated into words.

Caution:  Individuations are not necessarily stable.  They are variably successful, enduring, deep, pervasive, portable, etc. Various schemes of individuation are often reciprocally interfering.

See Also: Bentham, Raz

The concept here is serious—though the example used to illustrate the point is, in all sorts of ways, not.

Begin then with an example of individuation taken from the admittedly tedious  opinions in the handgun case of District of Columbia v. Heller.  The main issue in the case is whether the Second Amendment right is going to be tied to a military purpose (“A well regulated militia being necessary…”) or not.   Interpretation will be necessary.  All are agreed that, whatever else might be said, the following should not be the result:

Beyond that, things are up for discussion.

Plying his “original meaning at the time” approach, Justice Scalia decides in good Anglo-analytic fashion to break down the operative phrase (“the right to keep and bear arms”) into its constituent parts.

The first thing he wants to do is segment “arms” from “keep and bear arms.”

From there, Justice Scalia breaks things down into:  “keep arms” and “bear arms.”  This way he can interpret “keep arms” separately from “bear arms” and actually get down to the real business of interpreting “keep” separately from “bear”.  The former means “to have” and the latter means “to carry.”

So over all, Justice Scalia has broken down the thing into the following units of constitutional meaning:




Left unanalyzed and apparently unnoticed throughout all this hermeneutic activity is the “and” which Justice Scalia nonetheless interpreted sub rosa to be additive (as in, to keep as well as to bear…) as opposed to conjoined (as in, “keep-and-bear” or more colloquially, “keep n’ bear.”)

These terms then—keep, bear, arms—are the discrete units of meaning to which Justice Scalia brings his formidable powers of concentration.  These terms are an example of individuation: that is to say, they represent (at least for Justice Scalia) the proper units for analysis, interpretation, argument, etc.

Justice Stevens will have none of this.  He doesn’t believe in breaking things down into single words (at least not in this context.)  Justice Stevens wants to break down “keep and bear arms,” differently.   He thinks that the phrase “bear arms” is of a piece–a phrase to be interpreted all at once.

All this leaves us with a law professor’s question and here it comes: Which is the proper form of individuation here—Scalia’s or Stevens’?   Notice that it matters.  Scalia’s relentless breakdown of the phrase into individual words yields a total absence of military meaning. By contrast, Stevens’ insistence that the two-word expression “bear arms” has a unitary meaning does accord the phrase a military gloss.

It matters—and yet note that we have no principle, no criteria, to decide on the proper individuation.  Indeed, this is generally true of individuation in law:  We have no more satisfactory principles to decide on our individuations than we do on deciding our frames of analysis.

This then is the individuation problem.  How is a text, an economic activity, a cultural practice to be broken down into its constituents elements?  Which ones?  On what grounds?  Can it (whatever it may be) be “broken down” at all?  Or is this notion that texts, cultural forms, economic activities can automatically be broken down into constituent elements simply the result of a metaphor gone wild?

Posted in Random Jurisprudence, Theory Moves | Leave a comment

Sh*t Law Professors Say

Strangely, this popular Youtube concept has not yet resulted in a video about law professors. We are here to fill the void.  For those of you not familiar with the genre, here is an example, also produced in our home town.

Pending the forthcoming video (sure to go viral), here is the static version of:

Sh*t Law Professor Say.

In Class

What is the procedural posture of the case?

What are the facts of the case?

The facts are almost always irrelevant.

Facts always matter.

These days, every judge is a neo-textualist.

These days, every judge is a neo-realist.

These days, every judge is an activist.

These days, every judge exercises restraint.

Judicial review is undemocratic.

Judicial review is the hallmark of a constitutional democracy.

“Will it be on the test?”  Is that why you are here, to learn how to take tests?

Everyone will get better at taking these tests.

Ms. Bloom, there are no right answers, only better and worse arguments.

Yes, precisely Ms. Atkinson, that’s the right answer.  Did everyone hear Ms. Atkinson?

In private

I wonder if I have more ssrn downloads than Henry.

I wonder if Jennifer has more ssrn downloads than Susan

Why are Susan’s teaching evaluations better than mine?

Does this law review article make my butt look big?

Posted in Experimental, The BAT Cave | Tagged , , | 2 Comments

The Monty Python Example No. 2 (With Special Reference to Constitutional Interpretation)

As suggested in a prior post, the British comedy troupe Monty Python is generally under-acknowledged for its jurisprudential insights.  Nonetheless, these are occasionally quite sharp.  Here, for instance, in the “The Argument Clinic:” we have a demonstration of a basic form of argument (or pseudo-argument) often seen in law–to wit, the contradiction:

Now, one might reasonably think that this is just British comedy.  But there is more to it than that.  There is a jurisprudential question lurking and here it is: Just how much of legal argument comes down to little more than an extended (occasionally confused) form of the Argument Clinic?  (Yes, it does/No it doesn’t.)

Now, for those of us involved in legal studies, we would like to believe that the Argument Clinic is a rare and aberrational phenomenon.   We would like to believe that there is a whole lot more to legal argument than the Argument Clinic.  And yet… notice two things:  1) what this “more” might be is often elusive and 2) a dispiritingly large number of legal disputes, when pressed hard enough, actually do come to resemble the Argument Clinic.

For instance, consider constitutional law.  There we find an ongoing national salon of arguments about what the Constitution means.   Take the simple question of whether the Constitution ought to be interpreted for what it is or what it ought to be.   At first, one is tempted to say that it should be interpreted for what it is.  But then a pause….  And a thought taking shape:  What if…  What if “what it is” (i.e the Constitution) turns out to be, at least in part, an aspiration or  a command to make it what it ought to be?  Ouch.   And from there, the professionally respectable possibilities proliferate:

what the Constitution ought to be is of no bearing on what it is.  See, Henry P. Monaghan, Our Perfect Constitution, 56 N.Y.U. L. Rev. 353, 396 (1981).

what the Constitution ought to be ought to have no bearing on what it is.  See, Robert H. Bork, The Tempting of America: The Political Seduction of the Law 176 (1989) 

what the Constitution ought to be is of some bearing on what it is.  See, Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 Harv. L. Rev. 1189, 1231-37 (1987).

what the Constitution ought to be is determinative of what it is.  See, Lawrence G. Sager, Justice in Plain Clothes: Reflections on the Thinness of Constitutional Law, 88 Nw. U. L. Rev. 410, 435 (1993).

what the Constitution is always already becoming what it ought to be.  See, Ronald Dworkin, Law’s Empire 413 (1986).

what the Constitution is something that can never become what it ought to be. See, Jacques Derrida, Force of Law: The “Mystical Foundation of Authority,” 11 Cardozo L. Rev. 919, 947 (1990).

Faced with this embarassment of choices, some people suggest that the right approach is to adopt a “strict interpretation” of the Constitution.   But this, of course, is of no help whatsoever–at least not if one thinks about it.   Presumably everyone is willing to interpret what they see as the Constitution strictly. I’m sure C.J. Marshall was being very strict in his interpretation of the constitution when he said, in McCullough v. Maryland  that only “its broad outlines” are laid out.  And I’m equally sure he was equally strict in interpreting these broad outlines.

See, the thing of it is: The strict/loose distinction or the judicial activism/judicial restraint distinction just doesn’t get you anywhere unless you’ve first identified the baseline understanding of what the constitution is:  If anyone interprets the constitution in the manner of a “legal code” when the constitution is in fact a set of “broad outlines,” they are (perhaps much to their surprise) engaged in judicial activism and loose interpretation.

The problem is that the crucial disagreement–one obscured by all the  interpretive theory brouhaha–is about the identity of the constitution itself.   It’s a dispute over constitutional ontology.   Specifically: What is it?   Is it a legal code?  A set of broad outlines?  A rule-book for government?  A transgenerational aspirational ought with attitude?  Something else?   Few people want to face up to this brute question of constitutional ontology.  Why?   Because facing up to the question turns all the fancy interpretive disputes into an impossible and inconclusive constitutional version of the Argument Clinic.

The constitution is X.

No it’s not.

Yes it is.

And so on–except with infinitely more intermediate steps.  I will not spin out the possibilities here, but they can be found in my article Hiding the Ball or in a tiny essay entitled “Beyond Interpretation” which is deeply buried in the ether of Studies in Culture, Law and the Sacred (Volume 5).

I will however, lay out a few helpful diagrammatic hints of how it all works.  When all is said and done (that is to say, after all the sophisticated constitutional exegesis is completed) constitutional legal scholars would like their interpretive theory to look like this:

Constitution ——-> Authoritative Meaning

Unfortunately, much of the time, the theory ends up looking like this:

Or like this:

Or, to add a dynamic dimension, like this:

To my conlaw students, pay no attention to any of this whatsoever.

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

Gingrich Rising

Some days you just know it’s going to be a really good day:  The Sunday Times on the table.   Espresso frothing in the kitchen.  Sourdough pancakes on the griddle.   And Newt Gingrich winning in South Carolina…

Could things get any better?  Sure:  He could win the Republican nomination and choose Christine O’Donnell as his running mate.  One can dream.

And yet the dream must stop:  Gloating is unseemly and Schadenfreude vulgar.

So moving on.

What will undo the mad professor from West Georgia College?  His serial philandering?  The ethics investigation?  His flip-flopping? His less than stellar campaign organization?  The financial intervention of the Republican establishment to prevent an electoral debacle?

I’ll go with the characterological difficulties.  This, of course, brings us to phrenology.

On first impression (my sources are here and here) things look promising for Gingrich:  He scores very high (with his large forehead) on the faculties of causality and comparison.  The faculty of comparison, of course, is key to analogical reasoning and to the critical mind.   Causality is the faculty for abstract thinking (also evidenced by the high forehead.)

But not all things are propitious.  And indeed, they quickly go from bad to worse.   Particularly worrisome for Gingrich supporters is the obviously high development of the destructiveness faculty—evidenced by a clear prominence of the outer regions of the cranium immediately above the ear:

As has been known, at least since the publication of Fowler’s treatise, destructiveness when not restrained by the moral faculties can lead to cruelty, anger, and even violence.  Particularly worrisome here is that high destructiveness combined with high self-esteem (grandiosity qualifies and self-congratulatory grandiosity is off the charts) can translate into a brutal tyrannical character.   The concerns mount when high development of these faculties are combined with  marked deficits in the area of benevolence and amativeness.  And clearly here (the lower back of the cranium) Gingrich is seriously lacking.  Indeed, the under-development is striking:

Posted in Experimental, Nature/Culture, Politics | Tagged , , | 3 Comments

Mitt Romney’s Product Placement

Legal education has its detractors, but most law schools would fare well when compared to Full Sail University, the for-profit school offering various degrees in the entertainment field. As reported in the New York Times, Full Sail U offers, among other programs, a degree in “video game art” for $81,000.  The program, which takes 21 months to complete, boasts an on-time graduation rate of 14 percent (and a total graduation of 38 percent.)

Not many people had ever heard of Full Sail U until Mitt Romney mentioned it in town hall meetings, interviews and stump speeches in New Hampshire, Iowa and elsewhere. The antidote to higher education’s ills, according to Romney, is competition from for-profit universities, exemplified by Full Sail U. Candidate Romney’s irrepressible enthusiasm for the school is no coincidence. The Times also reported that Full Sail’s Chief Executive, Bill Heavener, and the chairman of the private equity fund that owns Full Sail, C. Kevin Landry, are major donors to Restore our Future, the “Super PAC” run by former Romney aides. Heavener gave $45,oo0 to Restore our Future and Landry gave $40,000. In addition, Heavener and his wife have each given the maximum individual donation amount of $2,500 to Romney’s campaign.

Political patronage to wealthy and influential donors is nothing new, and Congress’s inaction, combined with the Supreme Court’s pro-corporate activism, have made unbridled corporate campaign spending a fact of life. Yet Romney’s “policy solution as product placement for corporate donors” takes the blurring of lines between politics and marketing to a new level. How much does Staples pay to be featured in The Office? How much did it cost for Snapple to be the recurring punchline on Seinfeld? That these questions can be asked in the same breath as discussions about a presidential candidate’s purported policy solutions is jarring. If Romney is willing to advertise covertly for his donors before he wins his party’s nomination, let alone the general election, one wonders what will drive decision making in a Romney White House.

“President Romney, will you sign the bill amending the Clean Water Act?”

“No, I think water would benefit from some competition. Clean or not, water just doesn’t taste as good as Snapple!”

brazenandtenured did not receive any payment from SnappleCo/Pepsico or Mitt Romney for this post

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Indians and Jews in Italy

Playing Indian in Rome

Piazza Navona, one of Rome’s iconic public spaces, was dressed down for Christmas.  The Piazza’s three renaissance era fountains, two designed by the incomparable sculptor Bernini, were overwhelmed by street vendors selling candy, t-shirts, fried dough and other carnival junk.  Unless you stared hard and myopically at Bernini’s twisting figures, you might think you were in Atlantic City rather than the Eternal one. But the most troubling site on Piazza Navona was the three Italian guys dressed up as Lakota (Sioux) Indians, one of them engaged in an ersatz smudging ceremony.

Remembering Jews in Siena

A few days earlier, on Christmas day, a young Italian Jewish woman gave a tour of Siena’s only synagogue, an unobtrusive building tucked behind the famous Piazza del Campo. As part of the tour, the young woman gave a brief lecture on the history of Jews in Siena.  Jews founded a community in Siena in the thirteenth century and established themselves as money lenders.  In 1348, Jews were blamed for the plague and forced to live outside the city center. Siena’s treatment of its Jewish population varied throughout the fifteenth and early sixteenth centuries, with some moments of relative freedom and some of greater restriction.  In the 1550’s and 60’s, Cosimo di Medici again clamped down on Siena’s Jews. Desirous of gaining favor with the Church, Duke Cosimo established the Jewish ghetto, required Jews to wear yellow caps and scarves, pay special taxes, and banned them from most professions. (Whatever else he was, Hitler was not original on this score.) Conditions gradually relaxed again for Jews throughout the eighteenth century, and Napoleon granted Jewish people full emancipation in the 1790’s when Tuscany was part of the French Empire. Yet in June, 1799, a group of anti-semitic fanatics ransacked the ghetto and killed thirteen Jews on the Piazza del Campo. Legally, Jews remained equal, but Siena’s Jewish community has never recovered. From its height of roughly 500 in the 1500s, today no more than 100 Jews live in Siena permanently.

plaque outside the Siena Synagogue commemorating the 13 Jews killed in 1799

Fake Indians in Rome; remembrances of anti-semitism in Siena.  What links these events other than proximity in space and time? Both reveal the endurance of stereotypes and their relationship to attempts to erase and eradicate, and each is a reminder of the distinct forms that racial and ethnic subordination take. Disappearing and helpless Indians. Pestilent and reviled Jews. So much can and does change, but the gravitational pull of history’s racial and ethnic subordinations is strong indeed. Remembering the real stories, and telling them over and over again, is some small part of resisting.

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The Iraq War is Over

It’s over.  And yet no one is talking about it much publicly.

Perhaps it’s because it was never our war.   We were supposed to go shopping.   Remember?  It was Bush’s war.  And it was (like virtually all his lifetime accomplishments) an unqualified failure.

Why did the U.S. go to war at all?  It was not the weapons of mass destruction (that was a lie.)  It was not bringing democracy to the middle east (that was ex post spin).  Nor was it even to set up a beachhead for the military in the region (that was plausible, but not necessary.)   It might have been about oil (but I’m not going there.)  It might have been about getting Bush re-elected (but I’m not going there either.)

No, I suspect (and this would explain the terrible lack of planning) that one main purpose of the war was to demonstrate to enemies and rogue states just how easily, quickly, and economically, America could move, reach out, and crush them—all without bearing much of a price.  It was in a phrase—Shock and Awe—a kind of military theater.   A display of “rapid dominance“–designed not just for the enemy, but for all the world to see.

Only, the script didn’t pan out.  And instead of demonstrating the awesome capacity of the United States to carry out foreign policy by military means, the Iraq war demonstrated exactly the opposite.   It was a military and foreign policy disaster—effectively displaying to the entire world that the military might of the No. 1 warrior nation in history could be thwarted and untold pain inflicted by relatively small, poorly armed groups of guerilla fighters.   That is what the United States spent in excess of three trillion dollars demonstrating in HDTV to the entire world for seven years straight.  Its own ineffectuality.

So yes, I suspect we don’t want any part of this.

But it was our war.  And we will pay.  In all sorts of ways.   A great deal and for a long time to come.   http://costsofwar.org/

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Got Knowledge?

In “The Meditations,” Descartes revealed his desire to make a “solid and lasting contribution to knowledge,”  His problem, as he saw it, is that he had accumulated a large number of false opinions and thereon erected a flimsy structure.  He concluded that without starting “the whole work of construction again from the very foundation,” making a “lasting contribution,” would not be an option.

I mention all this, because  Descartes’ self-declared starting point is so unlike what most of us (as academics) take as our self-declared starting point.  We view ourselves, or at least our particular discipline (law, microeconomics, whathaveyou) as possessed of an elaborate knowledge already acquired, already secured.   The basics, the fundamentals of these disciplines we have learned and mastered.  We quickly leave them behind, eager to reach the more rarefied intellectual frontiers–the cutting edge.   To be sure, there are challenges out there on the periphery–moments of self-doubt and uncertainty.  But still it’s all a damned sight more comfortable than Descartes’ situation:  Indeed, it seems we all have a solid discipline in place that will support our efforts and stand ready to accept our own lasting (even if modest) contribution.

Things look promising.  Future looks bright.  Unless, of course, the core identities, the fundamental frames of our particular discipline happen to be academically petrified nonsense.   Then, things don’t look so good.

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Coase and “The Problem of Social Cost” (Again)

I don’t know if other academics experience this, but I find that, in scholarship, I am drawn to certain texts or problems over and over again for reasons that remain elusive.   And so here I am again, writing yet another paper on Coase.   A couple months ago, at a conference on “Fantasy and Markets,” at Cardozo Law School, where I presented the paper, one genial psychoanalyst suggested (during the panel no less) that I really needed to figure out what Coase was doing in my primal scene.

This brought peals of laughter (self included).  And then we all moved on.  All of us, except me apparently.  I was left to contemplate my primal scene:

More seriously, I actually  like “The Problem of Social Cost.”  And the thing is I know very well that, given my politics, I am not supposed to like it.   I also know very well that, in the article, Coase evinces a preference for markets (as opposed to government regulation).   And I know too that the article has morphed reductively into what is now irretrievably identified as the “Coase Theorem” and that the latter has been used at various times to authorize  all sorts of questionable prescriptions including:

1) Try to define legal entitlements or regimes so that transaction costs allow rearrangement among the parties.

2) Where possible, try to reduce transaction costs by redefining entitlements and legal regimes.

3) Forbear from enacting laws that would prohibit parties from rearranging their entitlements.

4) Where transaction costs are high enough to prevent rearrangement through private bargaining, try to establish a legal regime that would replicate what the parties would have agree to had there been no transaction costs.

5)  Where transaction costs are high enough to prevent rearrangement through private bargaining, try to establish a legal regime that accords with Kaldor Hicks efficiency.

I know all this.  And still I argue: None of these prescriptions is to be found in Coase’s article.  And each is an interpretation reductively made by others—principally rational choice theorists associated with the Chicago School.    And what’s more, the prescriptions do not follow (except in a disjunctive way) from Coase’s arguments.   And worse even, they are contrary to Coase’s arguments.   And the articulated preference for markets is no more than a “belief,”  and Coase’s actual argument are much more tempered and skeptical.  And they’re consistent with his earlier commitments to socialism.  And….well, just see here.

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Blue Nights, Lockerbie and the Solstice

It is that time of year. The light is dying. The trees are skeletal. The sky is low and grey around the edges. Rather than seeming full of possibilities, the world narrows in scope.  Climate negotiations in Durban, South Africa get less and less ambitious.  Can they reach an accord to reach an agreement to lower emissions by a date too late to avoid dangerous consequences? Domestic politics limp along. Can we extend a payroll tax that everyone supports? Which of the recycled republican presidential candidates will inch toward nomination? It all seems small and shrinking.

This too will pass. The shortest day of the year is coming, and then the possibilities will open up again. December 22 has the most promise of any day on the calendar. This is the flip side of Joan Didion’s observations about the blue nights of early summer. “In certain latitudes there comes a span of time approaching and following the summer solstice … when the twilights turn long and blue.” For Didion, these nights portend their own end, and the end of summer. “During the blue nights you think the end of day will never come. As the blue nights draw to a close (and they will, and they do) you experience an actual chill … the blue light is going, the days are already shortening, the summer is gone.” December’s grey days foretell the opposite.  Their dank brevity hints at the lengthening to come.

But until then, Joan Didion’s book about the death of her daughter haunts the season. Didion’s only child, Quintana Roo Dunne, died after a year of terrible illness and complications.  Didion’s memoir is an unnerving confrontation with loss– the loss of an only child, the loss of a husband the year before, the impending loss of Didion’s tightly held memories. The book is a repository for those memories, insistently repeating them, but for the reader’s sake?  For the writer’s? By the end of the book, it is hard to tell. Didion has forced the reader to accept her memories, and to fear their loss as she does. And I do. Why did I read this book, about the writer’s loss of her only child, a daughter? It was like rubbernecking at an accident scene. I couldn’t look away. Maybe if we read about death and loss, stare at it hard, it won’t happen to us.  Or it won’t destroy us if it happens. Will staring death in the face inoculate us?

That sounds absurd. But thinking about death and its inevitability may keep the dying of the light at bay. People outlive their bodies because we remember them, we cherish their details and conjure their gestures, words, and scents. When their bodies are gone, what haunts us (because losing their bodies can no longer haunt us; it has happened) is losing our memories of them. This is how Didion ends Blue Nights: “The fear is not for what is lost…. The fear is for what is still to be lost. You may see nothing still to be lost. Yet there is no day in her life on which I do not see her.” Derek Parfit, the philosopher, would agree. Death is not the end of what we think of as identity. How and when identity dies is composed of other physical and psychological questions.

In this time of grey days, when every religion responds by bringing the light inside, when stories of birth and miraculous survival are told, here is another story. On December 21, 1988, a plane flying over Lockerbie exploded and pelted the ground below with fuselage and death. We were young, my college friends and I, and in full thrall to the myth of our immortality. It made no sense that Julian Benello, with whom we played, argued, and went on crazy road trips, had been on the plane. It made no sense that he had died. It still doesn’t.  He can’t be gone because I can see him still, on the first day I met him, splashing water in his face as the punchline to a dumb joke. (Knock knock. Who’s there. John the Baptist.) For his friends, remembering Julian is nothing like it must be for his mother and his brother. But we remember him still. And on the anniversary of the shattering of his body, the days get longer and hope creeps back with the light, all kinds of hope. Hope that the world will address climate change, that domestic politics will be serious instead of silly, that young men and women, boys and girls, will never die before their parents. These are the necessary hopes (illusions?) and they will take us through, at least until the light ebbs again.

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Law School Exam Last Minute Help

Random student (probably law) demonstrating how to study:

File:Bush at desk reading SotU draft.png

First, of all, if you are a law student and still reading this post, you are in deep trouble.  In fact, you really don’t have time for this and should really go away.   If you’re a law student and still reading, you must be truly desparate, drinking way too many non-diet soft drinks, or insanely bored.

All right, so here’s the last minute advice.  If you don’t already know, the ultimate issue on every law school exam comes down to this:   How can something whose essential identity is to be two or more things at once be in fact just one of those things and not the other?   The reason this is the issue is because all law professors are legal realists and avid followers of Thomas Reed Powell—the great early twentieth century legal thinker—who is widely believed to have said: “If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind.”   You too, of course, will want to show on your exam that you have acquired a legal mind and that you too can make something whose essential identity is to be two or more things at once be in fact only one of those things.   There is a limited set of currently favored juridical techniques for doing this and here are the most excellent of them all:

On balance, predominantly, primarily, principally, taking all the considerations into account, or in the totality of circumstances, (pick one) it is more one thing than the other.

It was intended to be one thing, not the other.

Viewed in context, it is one thing and not the other

It cannot reasonably be said to be the other, therefore it must be the one thing.

Traditionally, customarily, historically, it has been treated as one thing and not the other.

The majority rule says it is one thing and not the other.

The better view says it is one thing and not the other.

The better view of the majority rule says it is one thing and not the other.

It will be more practical, useful, efficient, just or fair to treat it as one thing rather than the other.

Blackstone would say it is one thing and not the other.

This leaves you with just two things to do.  One of them is to come up with a truly stellar argument as to which of the preferred techniques above to use.   The other thing is to come up with an argument as to which thing is the one and which is the other.  For further, decidedly more serious, explorations of such thoughts, see my essay, The Anxiety of the Law Student at the Socratic Impasse—“An Essay on Reductionism in Legal Education,” 31 N.Y.U. Rev. L. & Soc. Change 575 (2007) available on Westlaw or Lexis (Don’t go there now—you don’t have time.)  Next time around, pick up a copy of the excellent “Getting to Maybe: How to Excel on Law School Exams,” by Michael Fischl and Jeremy Paul.  (Full disclosure: I don’t get a cut, but they are friends.)

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